Mr. Secretary: Just Read The Law!

By Jerry Schill, President of the North Carolina Fisheries 

A ruling from Judge Doumar is not expected until about mid May. Please note that this hearing only concerned our motion to enforce a previous order of the court. In other words, its only purpose was to hear arguments about whether or not NMFS set the 2001 quota in a timely fashion, as ordered by Judge Doumar in our last case. Our other complaint, which will be heard sometime in the next few months, is regarding the fairness and equitability issues surrounding the recreational fishery overages.

I want to take the opportunity to list one of the concerns we have regarding the process of managing summer flounder; particularly, the proposal by NMFS and the ASMFC to conduct a facilitated meeting with "stakeholders."

NMFS Director Bill Hogarth was hopeful that I would be one of the persons sitting around the table in Washington on May 17th & 18th to discuss summer flounder management. When we talked initially about it several weeks ago, Bill projected a professionally facilitated meeting with 5 or 6 folks from the commercial sector, recreational sector, environmental industry, federal government, and state governments. That would be 25 to 30 people with a professional facilitator, discussing summer flounder for 2 days.

On Friday, April 27th, I decided not to participate. Although I told Bill, Jack Dunnigan of the ASMFC, and Pres Pate at DMF that I was leaning against participating for quite some time, I made the decision only after many conversations with the folks already mentioned and quite a few others. I'd like to explain my reasoning.

A process already exists to manage summer flounder. In federal waters, it's the Mid Atlantic Fishery Management Council that makes recommendations to the U.S. Secretary of Commerce. Since the Council only makes recommendations to the Secretary, it's the Secretary with the ultimate responsibility to assure that the National Standards within Magnuson-Stevens are upheld. Hence, whenever there is a lawsuit, it's the Secretary that gets sued rather than the Council or NMFS.

In state waters, the ASMFC, or Atlantic States Marine Fisheries Commission comes up with the proposed regulations. Although the ASMFC does not actually have the power to regulate, states must comply with the management measures or risk being ruled out of compliance by the Secretary of Commerce.

Summer flounder have been regulated for many years by various state regulations as approved by the ASMFC and by the Secretary of Commerce through the Mid Atlantic Fishery Management Council. There is no statutory authority, or law, that provides for the convening of this facilitated summer flounder meeting. After many conversations about this point, here is my conclusion.

The convening of this facilitated meeting is an admission of the abject failure of the Council and ASMFC to manage summer flounder. However, the ultimate responsibility lies with the Secretary of Commerce, who has the duty and responsibility not to approve management measures that violate current law. Any decision or consensus that comes out of the facilitated meeting, will only be MORE recommendations to the Secretary. Since the Secretary already has the authority, indeed the responsibility, to enforce the mandates of the National Standards within the Magnuson-Stevens Act, why go through yet another exercise that is only advisory in nature?

Doesn't NCFA believe in citizen advisors?

Absolutely, which brings up yet another interesting point. The Mid Atlantic Council has a Summer Flounder Advisory Panel made up of stakeholders. Henry Daniels and Sherrill Styron are North Carolina's commercial representatives on that AP. Would you believe that the advisors have not been called to a meeting since December of 1997?

It's also important to note that NCFA made formal presentations to the Mid Atlantic Council, the ASMFC, and wrote a formal request to the Secretary in the fall of '98 asking for specific action to address the inequities in Summer Flounder management. Nothing was done.

Since the mandate to the Secretary is quite clear, plus the fact that the stakeholder panel (Summer Flounder AP), that is already in place hasn't met for over 3 years, plus the formal notice we made to the Council, ASMFC, and the Secretary in the fall of 1998, I feel very comfortable with the decision to forego the facilitated meeting.

I sincerely hope that the decision that comes out of the meeting later this month is not a decision to have yet another facilitated session; however, that will not surprise me if the "decision" is to have yet another meeting.