Federal Sea Bass Closure Lawsuit Dismissed

OCEAN CITY — While the black sea bass season off the coast of the resort was officially closed indefinitely last Thursday, just days earlier a federal judge dismissed a civil suit filed by the Recreational Fishing Alliance (RFA) and coalition of regional and local anglers and charter captains over an abrupt closure of the fishery in the fall of 2009.

Maryland Department of Natural Resources (DNR) officials last week announced the black sea bass season off the coast of the resort was officially closing as of 12:01 a.m. last Thursday. The closure was announced less than one week after U.S. District Court Judge Joel Pisano dismissed a suit filed in 2009 by the RFA and a handful of local and regional charter captains over the abrupt closure of the fishery in the during the height of the recreational season off the Atlantic Coast including right here in Ocean City.

Ironically, the federal judge dismissed the lawsuit last week, citing the case had become moot because the fishery had long since reopened. However, just days later, under orders from the federal Atlantic States Marine Fisheries Commission (ASMFC) and the National Marine Fisheries Service (NMFS), the Maryland DNR announced last week the recreational black sea bass fishery will remain closed until new quota regulations are determined.

In October 2009, black sea bass, one of the most important fisheries for Ocean City and the entire east coast, was closed abruptly and without warning, forcing the RFA and a handful of local captains to file a multi-party federal lawsuit against NFMS. 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, months after the federal suit was filed, NMFS reversed its course somewhat and re-opened the black sea bass season on May 21. Last week, the case was dismissed in federal court after Judge Pisano ruled the re-opening of the season made further legal action moot.

According to the judge, the plaintiffs in the case did not demonstrate the probability a similar in-season closure of the black sea bass fishery would happen again in the future. For the “capable of repetition” exception to be applied, there must be a reasonable, if not probable, demonstration that the same action will happen again.

“Plaintiffs have failed to provide such a quantity of proof,” the judge’s opinion reads. “An emergency, in-season closure of a fishery is a very unusual occurrence and highly dependent on the facts specific to the date and time of the closure. Even the plaintiffs have characterized the emergency closure as unprecedented.”

Ironically, just days after the judge rendered his opinion on the unlikelihood of another emergency closure, state officials announced the closure of the black sea bass fishery off the coast of Maryland, proving the action which brought forth the original suit was capable of repetition.

“Essentially, the court agreed with NMFS that because the sea bass fishery was reopened that May, our case was moot because the court could no longer provide us with meaningful relief, that is, the re-opening of the fishery,” said RFA lead attorney Herb Moore, Jr. “We obviously did not get expedited consideration and the court disagreed with us that this closure meets the ‘capable of repetition yet evading review’.”

The RFA concluded, in essence, the pace of the court schedule moved much slower than the season closure, reopening and closure again. Because NMFS reopened the sea bass season off the mid-Atlantic coast just months suit was filed, the federal judge ruled against the plaintiffs in the suit. Despite the outcome, RFA executive director Jim Donofrio said the plaintiffs in the case stand by their assertion the black sea bass fishery shut down was based on flawed data collection in the first place.

“NMFS got off lucky here,” he said. “They were the beneficiary of a slow federal judicial process. We still maintain that using MRFSS to close down a healthy sea bass fishery in the middle of the season was unjustified and illegal.”

From a legal perspective, the next step for the plaintiffs could take would be a motion for reconsideration, but based on the remote chance for a positive outcome and the money raised and spent by the local fishing community already, it doesn’t appear likely the RFA will pursue the appeal.

“Individual anglers, fishing clubs, party and charter boat captains, tackle shops and other grassroots activists in the mid-Atlantic region helped raise over $50,000 to get this fight as far as it’s gone, and the entire industry owes these individuals a debt of gratitude for pushing back,” said RFA Managing Director Jim Hutchinson.

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