Jerry Schill

It's the Law!

By Jerry Schill, President of the North Carolina Fisheries 

Since the first court hearing for our Summer Flounder (fluke), lawsuit is scheduled for April 18th, whatever I write to bring you up to date on it will probably be old news by the time you read this. However, I would like to offer some general thoughts about our legal action against NMFS, as well as some other observations about the reauthorization of the Magnuson-Stevens Act.

I was a bit surprised by the reaction of some folks who thought that we might drop our suit after the Atlantic States Marine Fisheries Commission (ASMFC), meeting on April 3rd in Baltimore. At that emergency meeting, the ASMFC voted to lower their previously recommended fluke quota from 20.5 to 17.91 million pounds, and they also agreed to participate in a facilitated meeting to try and resolve the problems in managing this fishery. Let's look at the quota issue first.

Why would NCFA be willing to drop our lawsuit because of their action to lower the quota? Commercial fishermen who fish for fluke have a lower quota and we're expected to yell "What a victory ?!" I guess it's true that by lowering the quota for this year the managers are beginning to take the recreational overages a bit more seriously. But please don't expect commercial fishermen to be pleased when they are also asked to pay the price for the recs exceeding their target.

For those who are unfamiliar with this process, the Summer Flounder Fishery Management Plan (FMP), provides that the commercial fishery is allotted 60% of the total quota for the fishery, and the recreational component receives 40%. Of the 60%, each state is allotted a certain percentage based upon historical averages outlined in the FMP. If any state's commercial fishery reaches their allotted portion, the fishery is shut down. However, if the recreational fishery reaches their "target" it continues, with the thinking that the managers will adjust next year's size limits, bag limits, and seasons accordingly.

But it just hasn't worked! In some years, commercial fishermen have gone over their quota, requiring the overage to be subtracted from next year. The recreational fishery, on the other hand, has exceeded their target by over 22 million pounds over a 5 year period, and even with the current measures for 2001, it's nearly assured that it will be a 6th straight year. When the managers plug all of the figures into their computer model to determine next year's quota, all fishing mortality is included, thereby meaning that the total quota for next year is less due to the excess mortality by the recreational sector.

And that brings us to our current legal situation. At the ASMFC meeting last week, I must admit that it appears that the fishery managers are now taking the inequity of the situation seriously. Even so, as we perceive it, they have only begun to make a very gradual turn in the right direction. In other words, they need to make a 180 turn and have only gone about 33 degrees.

Some folks believe that the proposed "facilitated meeting" will be a panacea. It might be what's needed, but it's hard for me to see how it could succeed where other efforts have failed. There is no statutory authority for such a group, and since it's not court-sanctioned, the group would only be advisory to the Secretary of Commerce. As far as NCFA is concerned, the fishery managers are abdicating their responsibility due to their failure.

Some readers may ask, "Wouldn't the advice coming from such a facilitated meeting be helpful to the Secretary"? Well, advice is always helpful. But consider that the Mid Atlantic Fishery Management Council already has a Summer Flounder Advisory Panel, but hasn't asked for their advice since their last meeting in December of 1997!

To cap that off, the Secretary already has the statutory authority to take care of this. All he has to do is abide by the law.

It's real simple, really. Harvest restrictions and recovery benefits of fishery management plans must be distributed fairly and equitably with recreational and commercial users. That's the whole point of our litigation.

Finally, I have been involved in many discussions concerning various proposals to amend the Magnuson Stevens Act during the reauthorization talks. What good is any amendment going to do when the agency, (NMFS), ignores the current law?