RICHMOND, Va. (CN) — A Fourth Circuit panel on Tuesday rejected fishing companies’ challenge to striped bass regulations in the Chesapeake Bay for lack of standing.
“We conclude that plaintiffs have not carried their burden to establish standing even at the pleading stage,” U.S. Circuit Judge Andrew Wynn, a Barack Obama appointee, wrote for the panel. “Plaintiffs sued the commission, not Maryland. But they are regulated by Maryland, not the commission.”
The plaintiffs, consisting of a fisheries trade association, a professional group of charter boat captains, a commercial fisherman and a charter boat captain, sued the state of Maryland after it adopted a recommendation from the Atlantic State Marine Fisheries Commission changing the limit of fish customers of charter boats can keep from two to one. They argued the interstate commission’s regulation lacked due process and constituted a taking under the Constitution’s Fifth Amendment.
A Maryland-based federal court denied the plaintiffs’ motion for a preliminary injunction barring the implementation of the regulation, ruling they were unlikely to succeed on the merits of their claims. The Fourth Circuit panel found the lower court shouldn’t have reached the merits of the claims because the groups lacked the initial standing necessary for a federal court to examine the specifics of the claims.
“We conclude that we are required to go further: because plaintiffs’ complaint fails to plausibly plead the elements of standing, the federal courts lack jurisdiction to consider their request for a preliminary injunction (or any other relief) at all, so we remand with instructions to dismiss,” Wynn wrote.
Attorney James Butera, representing the plaintiffs, plans to appeal the decision to the Supreme Court. He hopes the high court will consider the commission as a whole, which he claims is unconstitutionally structured.
“It’s a bad situation,” Butera said in an interview. “We’re going to get a petition up there quickly so we can get to court to look at it before May 16, when the 2025 season starts.”
The commission recommends conservation plans to member states. Maryland adopted the commission’s recommendation through its legislature despite voting against it. Wynn ruled that the state’s regulations would remain in the books even if they granted the requested injunction.
“In other words, plaintiffs must plausibly allege that Maryland would likely rescind its one-fish limit on charter boats if the district court enjoined Addendum II,” Wynn wrote for the panel. “They have not done so.”
The plaintiffs argued that the commission coerced Maryland into adopting the regulations. Under the Atlantic Striped Bass Conservation Act of 1984, if the commission finds that a state failed to adopt measures consistent with its striped bass plans, it reports that finding to the secretaries of Commerce and Interior. If they agree with the commission’s finding, the secretaries must impose a moratorium on striped bass fishing in that state’s waters until the state remedies its failure.
“Maryland has collaborated with the other states in the commission for over 80 years to preserve critical fisheries in the Chesapeake Bay and the Atlantic Ocean,” Wynn wrote. “As with any collaboration, sometimes Maryland takes and sometimes it gives. But it would probably surprise Maryland to hear that it has been coerced.”
The plaintiffs hoped the state would join them in the litigation, but Maryland representatives did not exercise their authority to appeal the regulation. In fact, Maryland’s proposed regulations imposed additional measures beyond those required by the commission, including canceling the spring 2024 striped bass trophy-fishing season. In the ruling, Wynn noted Maryland voluntarily entered the commission and could withdraw for any reason.
The commission recommended the one-fish limit after finding that striped bass recreational harvest increased by 88% from 2021 to 2022. The plaintiffs claim the limit would cut their revenue by more than 70%.
The commission decided in December that they would not add additional regulations for the 2025 season. The Chesapeake Bay Foundation’s conservation group members were unhappy with the decision.
“Striped bass are experiencing a host of stressors, from degraded habitat due to climate change to invasive predators such as blue catfish,” Chris Moore, Virginia executive director for the Chesapeake Bay Foundation, said in a press release. “These challenges will make it even harder for striped bass to rebound like they have in the past. Lack of action is disappointing and a missed opportunity to help ensure we meet the rebuilding deadline for this iconic species.”
Wynn outlined the role striped bass, sometimes called rockfish or stripers, played in the country’s founding. Settlers in the Plymouth colony in 1623 relied heavily on the fish to feed themselves. The population was so high that the local indigenous word for the striped bass roughly translates to much fish.
Massachusetts prohibited using any bass as fertilizer in 1625, likely the first statutory conservation measure in colonial America. Robert Roosevelt, President Theodore Roosevelt’s uncle, warned that New York’s reliance on the striped bass caused a serious downshift in the population in 1870.
The 14 Atlantic coastal states and Pennsylvania formed the interstate compact in 1940 to coordinate fishery management measures. In the 1970s, Congress ordered an emergency survey as new powerboats equipped with radar and sonar caught striped bass en masse.
It took scientists over 10 years after the passage of the Atlantic Striped Bass Conservation Act to declare the population restocked, thanks in large part to states like Maryland which issued a total moratorium on striped bass fishing. A 2019 benchmark finding that the population was again overfished led to the commission’s one bass per customer limit.
U.S. Circuit Judges Stephanie Thacker, another Obama appointee, and U.S. Senior Circuit Judge Henry Floyd, a George W. Bush appointee, joined Wynn’s opinion. The commission indicated that it had yet to review the ruling.