Law

October 15, 2019 — SEAFOOD NEWS — In the most recent salvo of a lengthy battle, New York’s Department of Environmental Conservation sued the Department of Commerce for maintaining the annual allocation of summer flounder to the state, despite a well-documented stock migration from the mid-Atlantic to off the shores of NY’s Long Island.

“It is unjust that New York’s fishing communities continue to be subjected to outdated restrictions on a key source of their livelihoods, which is why we are challenging this quota,” said New York’s Attorney General Letitia James. “Previous years of limiting commercial fluke fishing have shown us that the federal government’s reliance on erroneous data violates federal fisheries law and stunts commercial growth in the state. My office will continue to fight for fair treatment of those who depend upon on our commercial fishing industry.”

The suit, filed on October 10, charges the DOC of violating the Magnuson-Stevens Act (MSA) and the Administrative Procedures Act by not responding to the stocks northward migration over the years and instead relying on outdated allocation shares.

Summer flounder is co-managed by the Mid-Atlantic Fisheries Management Council and the Atlantic States Fisheries Commission for inshore and offshore waters in North Carolina, Virginia, Maryland, Delaware, New Jersey, New York, Rhode Island, Connecticut, Massachusetts, New Hampshire, and Maine.  Allocation to all 11 states has been based on historical catch data from 1980-89, data which New York’s DEC says are “obsolete.”

Allocation shares give 27.5% to North Carolina, 21.3% to Virginia, 16.7% to New Jersey, 15.7% to Rhode Island; 7.7% to New York, 6.8% to Massachusetts, with the remaining 5% to Connecticut, Maryland, Maine, Delaware, and New Hampshire.

That puts 5.6 mlbs of summer fluke landings at ports in North Carolina and Virginia while only .88mlbs at ports in New York, “even though the center of the biomass of summer flounder—and commercial fishing activity—is off Long Island,” states the suit.

“New York’s commercial fishing industry is a critical economic driver that has been held back by outdated federal restrictions for decades,” Governor Andrew Cuomo said. “After numerous attempts to work with the federal government to adjust this unfair quota, we’re forced to make our case through the courts to protect the hardworking men and women of this industry. We will not back down until these unreasonable limits on New York’s fishing industry are made right.”

“In the more than 30 years since those data were collected, the center of the summer flounder stock has shifted significantly northeast to the waters off New York’s coast,” wrote Plaintiff Basil Seggos, Commissioner of the New York State Department of Environmental Conservation (DEC).

“Boats from North Carolina and Virginia—states which have significantly larger quotas than New York predicated on the now obsolete landings data derived from the vastly different fishery of the 1980s—routinely travel hundreds of miles to waters off Long Island, fish, and then return hundreds of miles back to land their catch.

“Long Island-based boats have a far shorter trip to the prime fishing grounds but are constrained by New York’s small allocation—based on the same obsolete data—to return with far fewer fish than their southern counterparts.  To eke out a living, some New York boats have had to purchase North Carolina or Virginia licenses, catch summer flounder off Long Island, then sail hundreds of miles south to land their catch.”

The suit claims the management actions taken by DOC are inconsistent with four National Standards in the MSA: National Standard 2, which calls for “best scientific information” to be used in management decisions; NS 4, which prohibits discrimination between residents of different states; and NS 5 and 7, which require efficiency in the use of fishery resources and to minimize costs where practicable.

The suit asks the court to partially vacate the 2020–2021 Specifications Rule by invalidating New York’s quota and partially vacate the 1993 Allocation Rule by invalidating New York’s allocation and remand the Rules to Commerce for further proceedings.

Commercial landings of summer flounder peaked in 1984 at 37.77 million pounds and reached a low of 5.83 million pounds in 2017. Total ex-vessel value in 2018 was $25.27 million, resulting in an average price per pound of $4.11

The Council and ASFMC recently approved increases in quota for all the states if the coastwide commercial quota exceeds 9.55mlbs. In that case, NY would get 12.375% of the additional quota, as would six other states. But the modification will not be effective, if approved, until January 1, 2021.

The stock for summer flounder spawning females is at 98 million pounds, but recruitment is low. In addition, annual removals are above what the stock can currently replace, so forecasts are for declining abundance.

Recent changes in accounting for sport landings have also increased those removals historically.

The next benchmark stock assessment is tentatively scheduled for 2021.

This story was originally published on SeafoodNews.com, a subscription site. It is reprinted with permission.