A recreational fishing group has dropped a lawsuit that claimed without evidence that the state fisheries agency is violating the federal Clean Water Act in its management of shrimp trawling in North Carolina.
The North Carolina Coastal Fisheries Reform Group on Friday voluntarily dismissed its claim against the N.C. Department of Environmental Quality’s Division of Marine Fisheries in the U.S. District Court for the Eastern District of North Carolina.
“The Division of Marine Fisheries vigorously protects the resources of this state and its fisheries,” said DEQ Secretary Michael S. Regan. “This dismissal confirms our view from the outset that the claims in this lawsuit were without legal merit, and detract from the meaningful efforts of diverse stakeholders working together to ensure we protect our resources for current and future generations.”
The voluntary dismissal came as the state was awaiting a ruling on its motion to dismiss, filed Sept. 29. The state moved to dismiss the suit on several grounds, including that the Division of Marine Fisheries was improperly named as a defendant and that the Reform Group failed to state sufficient facts to support a claim that the Division had violated the Clean Water Act.
The shrimp trawl fishery in North Carolina is managed under a Shrimp Fishery Management Plan, adopted by the N.C. Marine Fisheries Commission, which is the rulemaking body for estuarine and marine fisheries management. The Division of Marine Fisheries implements and enforces the measures approved by the commission. The fishery management plan process is an open and inclusive process through which those who wish to see changes in fisheries management can advocate for those changes.
Citing the State of North Carolina’s “abject failure” in meeting its legal duties to properly manage coastal fisheries resources on behalf of North Carolina’s current and future citizens, the Coastal Conservation Association of North Carolina, along with 86 North Carolinians, filed a civil action on November 10 against the State in Wake County Superior Court.
The plaintiffs include five former members of the N.C. Marine Fisheries Commission and citizens who reside in 29 counties across the state.
The suit is based on the State’s longstanding, public-trust responsibilities to manage coastal fish stocks in a way that protects the public-trust rights of the public, as incorporated in the North Carolina Constitution, to fish in North Carolina’s coastal waters. The complaint points out that coastal fisheries resources are held by the State in trust for the benefit of all current and future North Carolina citizens.
The State has failed to meet that legal duty, however, instead allowing for-profit exploitation of coastal fisheries resources by fewer than 7,000 citizens to supplant the public rights of 11 million citizens to use coastal fisheries resources. The complaint attributes the State’s policy to “regulatory capture,” where the State’s regulatory agencies ultimately become co-opted to serve the commercial interests they are charged with regulating. The complaint is clear, however, that law-abiding commercial fishing license holders are not directly responsible for the poor state of North Carolina’s coastal fish stocks. Instead, the complaint explains that the root cause of the demise of those stocks is the State’s mismanagement of its coastal fisheries resources.
The complaint sets forth in detail specific evidence of the decades-long, uninterrupted, and dramatic overall decline in coastal fish stocks in North Carolina, and the demise of several specific fish stocks historically significant to the fishing public. The complaint discusses evidence of that decline, including fish stock age truncation, overall non-viability of coastal fish stocks, declining commercial landings, and reduced public harvest limits.
The evidence of the State’s failure to meet its obligations with respect to coastal fisheries resources is overwhelming, according to the complaint: “Stocks in multiple fish species like river herring, Southern flounder, striped bass, spot, croaker and weakfish have declined precipitously since the late 1980s, with little to no will or effort by the State to implement the measures necessary to recover those stocks.”
The complaint cites three critical State management failures that have infringed on the public’s right to fish for personal use: (1) facilitating commercial fishing practices and gears that cause staggering amounts of resource wastage; (2) allowing chronic overfishing of multiple fish stocks historically important to the fishing public to cause stock demise; and (3) disregarding a lack of reporting of any harvest by over half of all State commercial fishing license holders.
On the first of these failures, the State has allowed long-term shrimp trawling in estuarine areas populated with juvenile fish and has facilitated a proliferation in the use of unattended gillnets. The complaint contends that because both practices result in enormous resource wastage, “all other southeastern states have either banned the practices or imposed management controls that severely curtail their wastage.” Citing extensive evidence, the complaint contends that the resource wastage caused by the State’s mismanagement has decimated North Carolina’s spot, weakfish (grey trout) and Atlantic croaker stocks, and contributed significantly to the overfishing of Southern flounder and striped bass.
Notably, the North Carolina Division of Marine Fisheries’ own studies indicate that hundreds of millions of juvenile spot, croaker and weakfish are killed and wasted annually by the shrimp trawl fishery alone. For every pound of shrimp harvested in North Carolina sounds, 3.3 pounds of juvenile finfish are killed and wasted. By the State’s own analysis in 2018, that ratio equated to about 100 million spot and 800 million croaker wasted in 2014, the complaint notes. This is many times the combined Atlantic shrimp trawl fishery spot and croaker bycatch for South Carolina, Georgia and Florida, by a margin of 7.5 to 1. As a result of this wastage, stocks of spot, Atlantic croaker, and gray trout have declined from 84 to 98 percent since the State’s last major fisheries management reform legislation was passed in 1997.
The complaint also cites the fact that the NC Division of Marine Fisheries obtained and holds on behalf of commercial gillnetters two Incidental Take Permits under the federal Endangered Species Act, so that gillnetting can continue in North Carolina waters despite the harm gillnets cause to fish stocks and threatened and endangered sea turtles and Atlantic sturgeon. The permits are one of many indications of regulatory capture, the suit charges.
As a second “critical management failure,” the complaint goes into an in-depth history of how State-tolerated, chronic, long-term overfishing led to the demise of river herring, draconian reductions in the Southern flounder harvest, and the near collapse of striped bass in the state’s southern rivers.
As far back as 1989, State data indicated southern flounder stocks were overfished, and that overfishing was actively occurring. After decades of inaction, draconian reductions in the harvest of Southern flounder have now become necessary to end overfishing of that stock. Even so, the suit charges, the State has acted with no sense of urgency to end overfishing and attain a sustainable harvest as required by the Fisheries Reform Act of 1997. As David Sneed, Executive Director of CCA NC notes, recent data indicate that “the drastic Southern flounder harvest reductions finally put into place in 2019 and 2020 are inadequate and are falling far short of their stated goals.”
North Carolina striped bass management also illustrates the State’s failure to address overfishing of public-trust fisheries resources, and the loss of public-trust rights resulting from that mismanagement, the suit explains. In the 1990s, the State imposed substantial harvest restrictions to turn around sagging striped bass stocks in the Albemarle Sound Management Area. The State, however, did not apply those same restrictions to the striped bass stocks in the Central and Southern Management Area, even after they worked to restore the Albemarle Sound stock. As a result, the more southern North Carolina striped bass stocks have collapsed, and the only reason that any striped bass are in southern rivers is a federal stocking program that costs taxpayers $750,000 annually.
The State’s third critical management failure pertains to the State’s approach to commercial fishing licenses. The State’s data show that over the last decade, 58 percent of North Carolina’s commercial fishing licensees annually reported no landings, for any trip, even though North Carolina law requires that all landings be reported and recorded. If those “latent licenses” are not being used for fishing, they still represent an enormous commercial harvest potential that could be brought to bear at any moment. Substantially more likely, according to evidence cited in the complaint, those licenses are fished without their landings being recorded and reported to the Division, making stocks seem more abundant than they really are.
The complaint asks the Court to declare that the State has breached its legal obligations to properly manage coastal fisheries resources, as well as a permanent injunction to stop the State from committing further breaches of these obligations. In short, the complaint seeks to hold the State accountable for failing to manage our coastal fisheries resources for the benefit of all North Carolinians.
The lead attorneys in the lawsuit are Keith Johnson and Drew Erteschik at Poyner Spruill LLP, who will work closely with Dr. Tim Nifong, CCA NC’s General Counsel.
Legislation Set to End Drift Gillnets in All U.S. Waters
With passage in the Senate, U.S. House set to vote on Driftnet Modernization and Bycatch Reduction Act
The Driftnet Modernization and Bycatch Reduction Act (S. 906/H.R. 1979) would bring commercial swordfish fishing in California in line with other U.S. and international swordfish fisheries. If passed into law, it would phase out the use of indiscriminate mile-long, large-mesh drift gillnets there by 2020. In July 2020, the U.S. Senate passed S. 906 by unanimous consent. The last remaining hurdle is to pass the bill through the House of Representatives. We expect a vote on the bill NEXT WEEK! Please tell your Congressman to VOTE YES on the Driftnet Modernization and Bycatch Reduction Act!
Drift gillnets are an outdated commercial fishing method that produce excessive bycatch and waste, including popular sportfish, marine mammals and sea turtles. Half of their catch is discarded as unwanted, prohibited, or protected species. It’s time large-mesh drift gillnets are eliminated from California as they have been throughout the rest of the country.
Supported by many recreational fishing organizations, the bill would help transition this fishery away from wasteful large-mesh drift gillnets to more sustainable gear types. It will ensure that all U.S. waters are free of this highly destructive fishing gear.
Ask your U.S. Representatives to VOTE YES on the Driftnet Modernization and Bycatch Reduction Act. Please review the message below and feel free to add your own words.
Click the link below to log in and send your message:
The N.C. Division of Marine Fisheries recently certified two new state record fish that are also certified as all tackle world record fish.
Craig Thompson of Southport, NC caught a 2-pound, 1-ounce creolefish in the Gulf Stream off Ocean Isle Beach on Sept. 1. and Vickie Hammonds of Wilmington caught a 3-pound, 13-ounce Gulf kingfish in Kure Beach on Feb. 4.
Previously, North Carolina did not list a state record creolefish or Gulf kingfish but created the categories after Thompson and Hammonds applied for the state record. Both fish were exceptionally large for North Carolina and were certified by the International Game Fish Association as All Tackle World Record fish.
The previous creolefish world record was a 1-pound, 8-ounce fish caught off Apalachicola, Fla. The previous Gulf kingfish world record was a 3-pound, 1-ounce fish caught off Hatteras Island.
Thompson’s creolefish measured 17 ½ inches total length and had a 10 ¼-inch girth. He caught the fish using a cigar minnow as bait on a 50-pound braid fishing line with a 6 ½-foot Shimano Trevalia rod and an Avet SX 6/4 reel.
Hammonds’ Gulf kingfish measured 21 inches total length (tip of the nose to the tip of the tail) and had an 11-inch girth. She caught the fish using fresh shrimp as bait on a 20-pound test fishing line with an eight-foot Quantum, medium heavy rod and a Star Aerial EX8000 Spinning Reel.
For more information, contact Carole Willis, with the North Carolina Saltwater Fishing Tournament, at email@example.com.
The N.C. Division of Marine Fisheries is looking for commercial and recreational fishermen, scientists, representatives of non-government organizations, and other interested parties to sit on a Shrimp Fishery Management Plan Advisory Committee.
The committee will join the division in a workshop over several days in Spring 2021 to develop Amendment 2 to the N.C. Shrimp Fishery Management Plan. To help reduce the spread of COVID-19, the workshop will be held via webinar.
Amendment 2 will examine management strategies to further reduce bycatch of non-target species in the shrimp trawl fishery, habitat protections, as well as potential changes to existing shrimp management. Topics under review include effort controls (e.g., fishing day restrictions, headrope limits, etc.) and shrimp trawl area restrictions for both habitat protections and potential reductions in bycatch.
The division is looking for a cross-section of those representing the various commercial and recreational shrimp fisheries, including those who fish with large trawlers, small trawlers, skimmer trawlers, channel nets, shrimp pots, and cast nets. The division would also like to seat scientists with expertise in the areas of habitat or bycatch and gear innovation, especially with trawls and bycatch reduction devices, as well as other individuals interested in shrimp fishing issues.
To be qualified to serve on the committee, applicants may not have had a significant fisheries violation within the past three years.
Since all meetings will held online via webinar, individuals interested in serving are strongly encouraged to have access to a computer, tablet, or smartphone with an internet connection.
Individuals interested in serving as an adviser should be available to attend and actively participate in the workshop tentatively scheduled for March 2021. This will include reviewing scientific documents and issue papers and providing input to the division on refining management options in draft Amendment 2. Workshop-style meetings allow scientists, managers, and stakeholders on the committee to address questions, comments, and concerns more effectively and in a less formal setting.
Advisers who complete the necessary paperwork will be reimbursed for expenses incurred in relation to their official duties.
Adviser applications are available online here or at Division of Marine Fisheries’ offices or by calling 252-808-8022 or 800-682-2632. Applications should be returned by Jan. 5, 2021 by email to Dana.Gillikin@ncdenr.gov or by mail to: N.C. Division of Marine Fisheries, P.O. Box 769, Morehead City, N.C. 28557, Attention: Dana Gillikin.
The recreational black sea bass fishery will close Tuesday, Dec. 1 in all coastal waters north of Cape Hatteras.
The closure will remain in effect until May 15.
The closure is required to account for recreational black sea bass harvest during February 2020.
The Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Summer Flounder, Scup and Black Sea Bass Fisheries Management Plan allows states to choose to open the recreational black sea bass season in February but requires states that do so to implement a season closure later in the year.
North Carolina was one of two states that chose to open the recreational black sea bass season in February. Fishing trips and harvest of black sea bass were higher during the February 2020 season than the February seasons in 2018 and 2019. The fishery will not open in February 2021 to avoid closing the season early again next year.
For specific information on the closure, see Proclamation FF-43-2020.
For more information, contact Chris Batsavage at 252-241-2995 or Chris.Batsavage@ncdenr.gov.
We have been hearing reports from fishermen about fish kills on the Neuse and Pamlico rivers, so we checked in with Heather Deck at Sound Rivers and received this report:
For the past five weeks, thousands and thousands of dead and dying menhaden have been washing up on the shores of both the Neuse and Pamlico Rivers. Many of the fish have open sores; wounds that are from a mold and attributable to poor water quality conditions that make the fish susceptible to disease. The river continues to show signs of severe low oxygen and algae are blooming in many sections. This is an unusual and very long time for fish kill to occur.
Folks who follow the health of the Neuse and Pamlico estuaries are no strangers to fish kills. Looking back to the mid 1990’s, fish kills on the Neuse dominated environmental news locally and even garnered attention nationally. Hundreds of millions of fish were dying, and scientists, activists, and regulators alike were scrambling to find the cause and implement strategies to reverse the degrading conditions. What they found was not what we would have expected. It wasn’t toxic chemical pollution from a villainous industrial giant, it was something much more insidious. The culprit was simple nutrients; nitrogen and phosphorus, to be exact.
For decades, an excess of nutrient pollution has been dumped into our rivers from sewage treatment plants, industrial swine and poultry operations, and polluted stormwater runoff from urban areas, causing harmful algal blooms, fish kills and poor drinking water quality. Rules in place since the 90’s have sought to reduce the nutrients that are causing harm to our river and estuary systems, and while some progress has been made, science shows that the problem continues to grow.
Fish kills are a symptom of a much broader problem. That problem is that our state has failed to protect our water resources. Our state legislature has systematically rolled back clean water protections, while also defunding our water resource agencies. Polluters continue to grow their power and have undue influence in the legislature creating laws and policies that work for them, not the wider public. Our research partners and state agencies lack the resources to adequately monitor the quality of our rivers. This research is essential to effective management strategies and holding polluters accountable for the damage they have inflicted on our public’s natural resources.
There are also reports of massive sewer spills entering the Neuse River from the City of Havelock and severely affecting water quality and fish stocks. We will have more on this as information becomes available. For more information, please visit soundrivers.org.