So. Md. watermen take DNR to court over rockfish
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.