OCEAN CITY – Citing
concerns about another abrupt closure of sea bass season, or the seemingly
random closure of any other recreational fishery in the area, the plaintiffs in
the ongoing civil suit against federal fisheries officials strongly fired back
last week in response to the defendants’ motion to dismiss the case.
Last October, black sea
bass, one of the most important fisheries for Ocean City and the entire coast,
was closed without warning, leading the Recreational Fishing Alliance (RFA) and
a handful of local captains to file a multi-party federal lawsuit against the
National Marine Fisheries Service (NFMS), the federal agency that shut the
fishery down. NMFS officials closed the black sea bass fishery in the midst of
a robust fall season after determining anglers up and down the east coast had
exceeded the established quota by some 800,000 fish.
The lawsuit filed by the
RFA and the coalition of local and regional charter captains sought an
immediate reversal of the closure, which they claimed was based on flawed
science and was costing the recreational fishing sector hundreds of thousands
of dollars each day the fishery was closed. It also called on NMFS to abandon
the archaic Marine Recreational Fisheries Statistics Survey (MRFSS) system of
collecting data and establishing quotas.
However, in the months
since the federal suit was filed, NMFS reversed its course somewhat and
re-opened the black sea bass season on May 21, which, in its opinion, made the
ongoing federal lawsuit a moot issue. Late last month, NMFS and the other
federal defendants in the case filed a motion to dismiss the lawsuit.
“The court should enter
judgment for federal defendants because the closure expired on May 21, 2010,”
the motion reads. “There is, therefore, no dispute for the court to decide or
remedy to provide. The plaintiffs no longer have a legally cognizable interest
in the outcome of their claims because the rule that they seek to have set
aside is no longer in force.”
However, the RFA and the
other local and regional plaintiffs in the case, including a handful of Ocean
City captains, last week filed a formal response to the motion to dismiss the
case, pointing out just because the emergency ban has been lifted since the
suit was filed, the federal fisheries agency that forced the sudden closure
last fall is still relying on the same flawed catch data collection system.
According to RFA lead attorney Herb Moore, Jr., NMFS can and will likely hand
down other closures if the sea bass suit is dismissed without addressing the
large data collection issues.
“The sea bass closure is
typical of an agency action that can be repeated again in the future while
evading review, because this type of case cannot be fully litigated before the
closure expires,” said Moore. “There is a good chance that recreational anglers
will be subject to the same action again.”
The closure of the sea
bass fishery last year during the height of the fall season was based on the
“fatally flawed” MRFSS system, which federal fisheries officials have since
admitted was not entirely accurate. The MRFSS system essentially relies on
fisheries officials cold-calling individuals in coastal areas to determine if
they are fishing, and if so, what they are catching.
Since the sea bass
closure last fall, NMFS has implemented a National Saltwater Angler Registry
program in order to enroll each saltwater angler in coastal states up and down
the east coast including Maryland in an effort to get a better handle on what
is being caught by whom and where. However, the formal response filed last week
by the RFA and other plaintiffs in the federal suit claims the arbitrary MRFSS
system is still being employed by the federal fisheries management agency.
“Today, the recreational
black sea bass fishery is being managed using the same exact MRFSS that was in
place at the time the Emergency Rule was implemented,” the motion reads.
“Nothing has changed as far as what is being used in the fisheries management
RFA Executive Director
Jim Donofrio has been told by an official from the National Oceanic and
Atmospheric Administration (NOAA), the federal agency that oversees NMFS, that
the MRFSS system, and not the National Saltwater Angler Registry, is being utilized
to track sea bass catch data.
“A NOAA official told us
MRFSS is still being used this season, utilizing the same old random
methodologies that were supposed to be obsolete last year,” he said. “Our
fishermen deserve to be compensated for this blatant disregard of the law, not
educated. Everyone in the fisheries world from the head of NMFS down to
the non-fisherman at home answering random phone calls about fishing knows that
MRFSS is alive and well and it’s hard to believe our government would be willing
to put blatant mistruths on legal documents to the court.”
Meanwhile, the RFA and
the local plaintiffs continue to wage their legal war with the federal Goliath
in the potentially precedent setting case.
“We’ve not gotten this
far alone, but only through the donations of the individual anglers, fishing
clubs, tackle shops, captains and small business owners who have dug deep to
help bankroll this legal effort to protect a nation’s right to fish,” said RFA
Managing Director Jim Hutchinson this week.