RICHMOND, Va. (CN) — Maryland commercial fishing groups argued to a Fourth Circuit panel Wednesday that an interstate commission’s regulations on striped bass in the Chesapeake Bay violates the Constitution.
Delmarva Fisheries Association and the Maryland Charter Boat Association sued the Atlantic States Marine Fisheries Commission over 2024 regulations that the plaintiffs claim violate the Fifth Amendment’s taking clause and cut their revenue by upwards of 70%.
The groups appealed after a Maryland federal judge denied their motion for a preliminary injunction.
On Wednesday, U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, questioned why the fishing groups would want to challenge the regulations.
“Isn’t this regulation intended to save and preserve the striped bass?” Thacker asked. “If you take that at face value, then without this, the striped bass could become extinct, and your client would lose 100% of its business.”
Atlantic striped bass, often called rockfish, are perhaps the bay’s most iconic fish, according to the Chesapeake Bay Foundation. They are primarily born in the bay and migrate as far north as Maine and south as North Carolina.
Juvenile striped bass numbers are below average for the sixth consecutive year in Maryland, and the second year in Virginia, the 15-state, congressionally recognized fisheries commission reported in October. The group agreed to shorten the fishing season, reduce the size of removable fish, lower commercial quotas and limit recreation fishers using charters to one fish per person, rather than the previously allowed two.
Thacker pressed attorney James Butera, who represented the plaintiffs on Wednesday, over the recreational regulation.
“They can catch more than one. They just can’t keep more than one, correct?” the judge asked.
“People want to catch the fish, take a picture of it, and take it home and eat it,” replied Butera, of the firm Meeks Butera.
Another Obama appointee on the panel, U.S. Circuit Judge James Andrew Wynn, wanted to know why the groups didn’t sue Maryland, one of the 15 states in the commission — along with Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia and Florida.
Butera claimed the commission had coerced Maryland into implementing the regulations. If Maryland were to leave the compact or risk not complying with the rules, the attorney said, the federal government may completely ban striped bass fishing.
Attorney Sean Donahue, representing the commission, disagreed and said Maryland was satisfied with adopting the regulations.
“I don’t think it’s fair to think of anything in this regime as coercion,” the Donahue Goldberg attorney said. “The member states all continue to be voluntarily associated with this compact.”
He also argued that even if the court granted an injunction barring his client from imposing the regulations, Maryland would still have them in place, since they passed through the Maryland General Assembly.
On appeal, the fishing groups point to a commission document stating that striped bass were not subject to overfishing. But the commission disputes that interpretation.
Dohanue that although the population may not be subject to overfishing — that is, removing fish from the stock at a rate that is not sustainable — it is still overfished, meaning the population amount remains below what it should be.
To no avail, Butera also tried to argue that the commission itself is unconstitutionally structured. The judges rejected the argument because the fishing groups failed to present it in their brief.
Donahue agreed it was inappropriate.
“There is a sort of fashion right now to sort of attack institutions and claim that institutions that have been working well are somehow fundamentally defective,” Donahue said. “I think that we should be very careful about entertaining those kinds of claims.”
The striped bass population drastically declined from a reported 14.7 million pounds caught in 1973 to 3.1 million pounds by 1979. The October report prompted the commission to set up a meeting on Dec. 16 to consider additional regulations for 2025.
“We cannot leave the future of striped bass up to a flip of the coin. Now is not the time to take risks. We urge ASMFC’s Striped Bass Board to implement greater restrictions on recreational striped bass fishing right now,” Chesapeake Bay Foundation Executive Director Chris Moore said in a press release. “Environmental conditions from climate change and invasive predators will make it much harder for striped bass to rebound like they have in the past. Now is the time to act.”
U.S. Senior Circuit Judge Henry Floyd, a George W. Bush appointee, completed the three-judge panel. Representatives from the fishing groups have yet to respond to requests for comment. Donahue said in an email that his client was happy to have the opportunity to explain the conservation measures in court.