Friday, June 25th–Feds Move To Dismiss Lawsuit Over Sea Bass Closure

OCEAN CITY – Federal
fisheries officials this week filed a motion to dismiss the ongoing civil suit
over the abrupt closure of the black sea bass season last October, pointing out
the emergency closure has since been lifted and the flawed catch data
collection system has since been repaired.

Last October, black sea
bass, one of the most important fisheries for Ocean City and the entire east
coast, was closed without warning, forcing 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. This week, 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aside is no longer in force.”

The motion also suggests
the coalition’s claims a similar closure could be reasonably expected in the
future is moot because the plaintiffs cannot identify any identical agency
action reasonably expected to recur.

“This is not surprising
because an emergency, in-season decision to close a fishery is a very unusual
occurrence, and the factors relevant to such a decision are highly
fact-specific,” the motion to dismiss reads.

One of the pillars of
the plaintiffs’ case was the flawed data collection used to force the
unexpected closure last fall. Traditionally, MRFSS data collection relied on
telephone conversations with a handful of recreational anglers, with the small
samples extrapolated out over a much larger state, regional or even coast-wide

However, in the motion
to dismiss the case, the defendants argue any claims about the flawed data
collection system are now moot because of the creation of the National
Saltwater Angler Registry Program.

“The data collection
methods previously used for MRFSS became obsolete on Jan. 1, 2010,” the motion
reads. “On that day, NMFS implemented the National Saltwater Angler Registry
program, designed to allow NMFS to more accurately collect data on the
recreational fishery.”

NMFS’ motion to dismiss
the case said the national registry would prevent similar closures in the

“These changes replace
the agency’s former reliance on random telephone contacts with residents of
coastal county households to collect marine recreational fishing effort data,”
the motion reads. “Because this is the only aspect of MRFSS the plaintiffs
contend is flawed, and the challenged system of random telephone contacts will
not be used in the future, the plaintiffs’ MRFSS-related claim is clearly not
capable of repetition.”