So. Md. wa­ter­men take DNR to court over rock­fish

Maryland Independent - - News - By DANDAN ZOU dzou@somd­news.com Twit­ter: @Dan­danEn­tNews

In late June, Calvert’s cir­cuit court held a hear­ing on the law­suit nine lo­cal wa­ter­men brought against Mary­land Depart­ment of Nat­u­ral Re­sources over the rock­fish in­di­vid­ual trans­ferrable quota sys­tem.

A cou­ple of months ago, the plain­tiffs filed a mo­tion for sum­mary judg­ment, chal­leng­ing the va­lid­ity of the ITQ sys­tem im­ple­mented by the depart­ment since the 2014 sea­son. A judge’s rul­ing, which could also af­fect wa­ter­men in St. Mary’s and across the state, is still up in the air.

Ev­ery­body agrees on what the facts are, said John Ri­chowsky, the at­tor­ney who rep­re­sents the plain­tiffs. What the two par­ties dis­agree on is the in­ter­pre­ta­tion of the law.

A hear­ing on June 23 fo­cused on whether DNR had the au­thor­ity to im­ple­ment the reg­u­la­tions. The plain­tiffs claim DNR went be­yond its ad­min­is­tra­tive au­thor­ity while DNR says the depart­ment acted within its man­age­ment au­thor­ity to adopt the reg­u­la­tions.

“If that’s de­cided, the case is over,” Ri­chowsky said.

Un­der the ITQ sys­tem, each fish­er­man is given a per­cent­age-based share of quota, which is largely based on catch his­to­ries and can be cal­cu­lated into pounds of fish a li­cense holder can har­vest through­out the com­mer­cial sea­son.

Un­der the derby style or com­mon-pool style that was pre­vi­ously used, any li­cense holder could catch as many fish as they wanted un­til an over­all monthly quota or daily catch limit was hit. DNR would man­age the state’s quota that is set yearly by the At­lantic States Marine Fish­eries Com­mis­sion through re­duc­ing fish­ing days, tem­po­rar­ily clos­ing the fish­ery or end­ing the sea­son early.

The prob­lem with the com­mon-pool style was that it cre­ated a race-tofish men­tal­ity, DNR said.

Ev­ery fish­er­man is com­pelled to catch as much fish as quickly as pos­si­ble with­out con­sid­er­ing the ef­fect it would have on the en­tire health of the stock, ac­cord­ing to court doc­u­ments filed by the depart­ment. The ITQ sys­tem seeks to ad­dress the “tragedy of the com­mons,” a the­ory of in­di­vid­u­als act­ing out of self-in­ter­est and de­plet­ing a shared, lim­ited re­source.

DNR said the hy­brid sys­tem that com­bines the com­mon pool style and the ITQ sys­tem of­fers more flex­i­bil­ity, meets the tag re­duc­tion plan re­quired by the ASMFC and func­tions as a cost-ef­fec­tive plan that would re­duce the like­li­hood of in­creased per­mit fees.

The cen­tral ar­gu­ment of the plain­tiffs is that the al­lo­ca­tion sys­tem vi­o­lated ex­ist­ing fish­ery statutes that said con­ser­va­tion and man­age­ment mea­sures should be fair and eq­ui­table and may not dis­crim­i­nate un­fairly among groups.

“The ITQ sys­tem fun­da­men­tally changed the striped bass fish­ery,” Ri­chowsky said. And the plain­tiffs say they are de­nied equal op­por­tu­nity to en­gage in the fish­ery.

“Ob­vi­ously, we fun­da­men­tally dis­agree,” said Jen­nifer Wazen­ski, prin­ci­pal coun­sel to the depart­ment and as­sis­tant at­tor­ney gen­eral.

Wazen­ski said the statue’s broad def­i­ni­tion of con­ser­va­tion and man­age­ment mea­sures gives the depart­ment am­ple au­thor­ity to adopt and carry out the reg­u­la­tions. Also, she called the plain­tiffs’ claim that pay­ing the same fee should guar­an­tee equal ac­cess a “cre­ative ar­gu­ment.”

The li­cens­ing statue “does not re­quire each striped bass per­mit holder to have an equal op­por­tu­nity or equiv­a­lent ac­cess to fish striped bass,” ac­cord­ing to court papers filed by DNR.

It would be sim­ple to say all al­lo­ca­tions should be equal, Wazen­ski said. “But the statue doesn’t say that.”

The statue only re­quires that any al­lo­ca­tion be “fair and eq­ui­table,” pro­motes con­ser­va­tion and is car­ried out in a man­ner that no in­di­vid­ual, cor­po­ra­tion or other en­tity “ac­quires an ex­ces­sive share of the priv­i­leges,” court papers said.

Also, li­cens­ing fees typ­i­cally in­tend to cover some or all of the costs as­so­ci­ated with li­cens­ing and reg­u­la­tion, not to re­cover the value of the re­sources to which the li­censee is given ac­cess, ac­cord­ing to court papers.

Since the reg­u­la­tions were adopted in 2013, Wazen­ski said the depart­ment sub­mit­ted an­nual re­ports to the leg­is­la­ture, and law­mak­ers took no ac­tion.

The Gen­eral Assem­bly “has not seen fit to change the law or oth­er­wise in­di­cate dis­ap­proval of [the depart­ment’s] in­ter­pre­ta­tion,” ac­cord­ing to court doc­u­ments.

Ri­chowsky of­fered his counter ar­gu­ment later in court that leg­isla­tive in­ac­tion doesn’t mean ap­proval.

“Just be­cause they are aware of it doesn’t mean it’s high enough on their pri­or­ity list” for them to take ac­tions, Ri­chowsky said.

In ad­di­tion, Ri­chowsky said the plain­tiffs never said they are en­ti­tled to equal shares, but they be­lieve fish­er­men should have “equal op­por­tu­nity to en­gage” in the com­mer­cial fish­ery.

Judge E. Gre­gory Wells, who is pre­sid­ing over the case, asked if fish­er­men have the op­tion of con­tin­u­ing to par­tic­i­pate in the com­mon pool style.

Fish­er­men have the op­tion to opt out of the ITQ sys­tem and par­tic­i­pate in a com­mon pool where par­tic­i­pants gather their quota shares and fish as much as they did un­der the prior derby style, ac­cord­ing to an af­fi­davit of Michael Luisi, as­sis­tant di­rec­tor of DNR’s fish­eries mon­i­tor­ing and as­sess­ment divi­sion.

Call­ing it a “sham op­tion,” Ri­chowsky said fish­er­men with large quo­tas are un­likely to par­tic­i­pate in the com­mon pool, mean­ing small quota share hold­ers are likely to end up chasing a small amount of the to­tal har­vestable quota.

It would be like 80 per­cent of the fish­er­men chasing 20 per­cent of the fish, Ri­chowsky said. “There is that op­tion; it is not a re­al­is­tic one.”

What hap­pens next is that the judge will de­cide whether he agrees with the plain­tiffs or the de­fen­dant. “It’s a busy sea­son,” Wells said. “We will start on the mat­ter as soon as pos­si­ble.”

“We don’t take a stance on this,” said Tommy Zinn, pres­i­dent of the Calvert County Wa­ter­men’s As­so­ci­a­tion, not­ing his or­ga­ni­za­tion does not want to di­vide the wa­ter­men com­mu­nity.

Some wa­ter­men are al­lo­cated big quo­tas based on their catch his­tory. They are mak­ing good money and are happy with the sys­tem, Zinn said.

For those who in­vested their own money pur­chas­ing quo­tas from oth­ers, “nat­u­rally, they are against the law­suit,” he said. On the other hand, there are more peo­ple with smaller quo­tas than those with larger quo­tas and the ma­jor­ity of them don’t like the ITQ sys­tem.

“It’s hard to keep them all happy,” he said.

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