Groups take state to court over flounder

A room full of commercial fishermen rise during a recess Wednesday morning in the superior courtroom in Beaufort on a civil action over the southern flounder amendment. (Dylan Ray photo)

BEAUFORT — Superior Court Judge John Nobles issued a temporary restraining order Wednesday during a hearing in superior court against the state enjoining officials from going forward with new southern flounder fishery regulations.

Groups fighting the new regulations had requested a preliminary injunction. But the judge went with the TRO because not all of the defendants had been notified of the action. 

The next hearing date is to be announced, but officials hope to have it the week starting Monday, Oct. 10.

Commercial fishermen and supporters of the civil action were present in the courtroom.

We'll have more on the Wednesday session in Friday's edition.

(previous report)

BEAUFORT — Several coastal counties have joined with commercial fishermen in litigation against state fishery and environmental agencies regarding the adoption of regulations for the southern flounder fishery using a method called the supplement process. 

A court hearing was set for this morning on a preliminary injunction request as part of the complaint that was filed Friday in civil court in response to the MFC’s adoption of Supplement A to Amendment 1 of the Southern Flounder Fishery Management Plan.

According to a press release issued Monday by the N.C. Fisheries Association, a nonprofit dedicated to supporting the state’s seafood industry, and distributed by the N.C. Press Association, Steve Weeks, an attorney with Wheatly, Wheatly, Weeks, Lupton & Massie of Beaufort and Todd Roessler, attorney with Kilpatrick, Townsend & Stockton of Raleigh, are representing the plaintiffs in the complaint against the state. 

The plaintiffs include NCFA Inc., the Carteret County Fisherman’s Association Inc., Carteret, Dare and Hyde counties. Defendants served with the complaint are the secretary of the N.C. Department of Environmental Quality, the director of the N.C. Division of Marine Fisheries and all members of the N.C. Marine Fisheries Commission. 

The supplement, which was strongly opposed by commercial fishermen at public MFC meetings during its creation, was adopted in November 2015. A supplement is a form of regulatory action with a faster process than amendments with less review. The stated purpose of the supplement was to reduce southern flounder catch (both harvested flounder and dead discards) by 25-60 percent. 

The management measures approved were as follows: 

•A commercial and recreational minimum size limit for southern flounder of 15 inches. 

•A minimum mesh size for anchored large mesh gill nets of 6 inches. 

•A statewide closure from Oct. 1-Dec. 31 for large mesh gill nets and trammel nets in the southern flounder fishery. 

•A 15-inch minimum size limit for commercial flounder gigging and a 35-fish possession limit per boat, per day or per trip if the trip goes over one calendar day. 

•Total allowable landings for flounder pound nets of 38 percent reductions, based on landings data for flounder pound nets from 2011-15. The TAL will be based on the water body where the pound nets are set, as presented by the N.C. Division of Marine Fisheries by the MFC’s February 2016 meeting.  

•A commercial gig flounder fishery closure when the TAL is met.

•A recreational flounder hook-and-line and recreational flounder gig closure from Sunday, Oct. 16, through Saturday, Dec. 31. 

The press release said the practical effect of the litigation is to stop the closure of the recreational and commercial southern flounder fisheries, scheduled to take effect this fall. As part of the filing, the associations and counties are requesting temporary, preliminary and permanent injunctions to prohibit state agencies from implementing any temporary management measures adopted pursuant to the supplement.

They also request temporary, preliminary and permanent injunctions to prohibit the N.C. Marine Fisheries Commission from violating the Open Meetings Law, which the associations and counties allege the commission violated while creating the supplement. 

According to the filing, the associations and counties allege the state agencies violated the law with the supplement by not determining temporary management measures were in the interest of long-term viability of the southern flounder fishery and that the issues couldn’t be addressed through the FMP amendment process. They also allege the state agencies “arbitrarily and capriciously” selected proposed catch reduction amounts with the supplement based on “inconsistent and conflicting data and without advice from fisheries experts.” 

They also allege the DMF failed to recommend or take a position on proposed management measures and none of the agencies considered social and economic impacts. 

The associations and counties allege the proclamation to implement the supplement is also “arbitrary and capricious” and that the MFC failed to adhere to its statutory duty to provide “fair regulation of commercial and recreational fishing groups in the interests of the public.” 

They also allege the MFC violated the N.C. Open Meetings Law through the exchange of emails on Jan. 14, 2015; Feb. 10, 2015; July 20, 2015; and Sept. 8, 2015.     

Brent Fulcher, board chairman of the NCFA, said in the press release, filing a lawsuit is the last resort for the association. 

“We testified many times last year before the MFC that using the supplement is the wrong approach and should be managed by a full-blown amendment that allows full public participation,” he said. “Our advice was totally ignored.”

Jerry Schill, NCFA president, said that in his 29 years of involvement with fisheries issues, this is “only the third time that we filed litigation against the DMF.

“Fishermen must have confidence in the process for management to be successful,” Mr. Schill said. “But with the commission and the division ignoring the law and even their own guidelines, we have no other option left.”

In the filing, the associations and counties said that southern flounder is one of the most economically important fish species for commercial and recreational fisheries in the state. 

“The commercial southern flounder fishery is heavily regulated to ensure a sustainable fishery,” they said. “Stock assessments and other population and catch indices show that existing conservation measures adopted prior to 2015 were helping the southern flounder fishery. … Despite stringent regulations already in place and a recovering southern flounder stock, between early 2015 and 2016, defendants took unprecedented action to arbitrarily impose additional and unnecessary management measures on the commercial southern flounder fishery that will devastate this industry.” 

Stephanie Hawco, DEQ deputy secretary for public affairs, said the DMF is aware of the complaint. 

“At this time, the division plans to move forward with the Oct. 16-Dec. 31 flounder closures as directed by the MFC,” she said. 

The DEQ also issued Tuesday an op-ed letter in response to the complaint. In it, John Evans, DEQ chief deputy secretary, said state law requires the MFC to protect, preserve and enhance the marine and estuarine resources of the state through a fishery management plan process. 

“The secretary of the DEQ can authorize temporary management measures to supplement an FMP if he determines it’s in the interests of the long-term viability of a fishery,” Mr. Evans said. “In this case, Secretary Donald R. van der Vaart authorized a supplement after concerns were expressed about the viability of the fishery. The commission used this process to accelerate regulatory changes in the southern flounder fishery.” 

Mr. Evans said the restrictions in the supplement are “stop-gap measures” intended to protect and preserve the fishery until more scientific data is gathered on the stock status. 

“Once the regional stock assessment is complete, a more thorough fishery management revision process can begin,” he said. 

Contact Mike Shutak at 252-726-7081 ext. 206, email mike@thenewstimes.com; or follow on Twitter at @mikesccnt.

(4) comments

HenryB

Relying on a fresh stock assessment my not change the MFC. Some members rely on their own sources and will disagree with the new assessment even if it shows an increase in the stock. A strong anti commercial bias in the recreational sector is present.

HenryB

But if a fresh assessment will change things, Mr.Evans should be made aware that the piece of data critical to knowing the health of the stock is the amount of female southern flounder available for the harvest.

The females stay in our estuaries all summer and go offshore for month or so in winter to spawn. Sampling the local status should be a snap.

The adult male after reaching maturity, or about 12 inches long, goes and stays off shore. It is possible since the length limit has been at least 12" that a male flounder has never reached the dining table.

It was the last DMF director that claimed a regional assessment was required because the stock moved around too much, not true.

A regional assessment will probably take ten years to materialize, whereas a local assessment can be accomplished next year.

HenryB

The bias within the fish whiz culture is very deep. The next assessment will rely on a completely different trip ticket program because the fish house no longer does the reporting.

The whole organization my be infected.

HenryB

The fate of our commercial fishing industry is doomed. Very soon no flounder of any species will be on menus.

Only those who want to see commercial fishing destroyed will conclude that the southern flounder is/or was in peril.

Another stock assessment the destroyers say is needed is proof that they are out to destroy the industry. The one taken in 2007 was sufficient.

It seems there are more destroyers than commercial fishermen.

In 2007 it was abundantly clear that the southern flounder was not over fished, nor was it being over fished. The stock was not only sustained but grew over those years

§ 113-129. North Carolina law relating to fish resources;

12c) Over fished. – The condition of a fishery that occurs when the spawning stock biomass of the fishery is below the level that is adequate for the recruitment class (babies) of a fishery to replace the spawning class (harvestable) of the fishery.

"The size of the stock before being fished compared the size after being fished"

(12d) Over fishing. – Fishing that causes a level of mortality that prevents a fishery from producing a sustainable harvest.

(14a) Sustainable harvest. – The amount of fish that can be taken from a fishery on a continuing basis without reducing the stock biomass of the fishery or causing the fishery to become over fished.

The first three years of the abundance charting which began in 1991 showed an average population size of 4.010,076 pounds of fish.

The last three years showed the population abundance at 4,348,533 pounds.

That is an 8% growth since charting the southern flounder began.

That is enough to conclude the commercial take over a period of sixteen years did not negatively effect the population, that is unless you are out to see it destroyed.


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