A Big Win!

Big win for the species, this is the backbone of the bay!
By JOSH BOLLINGER Special from the Star Democrat

CAMBRIDGE — A judge in Dorchester County Circuit Court ruled in favor of the state in a lawsuit against the Department of Natural Resources that concluded on Wednesday.

While Judge David B. Mitchell said the evidence the plaintiffs produced in the trial “clearly addresses the economic impact” and establishes their dissatisfaction with 2013 menhaden regulations, he said, “Their responsibility is to show, as we mentioned earlier, that the state exceeded its legislative mandate and it’s a violation of the Constitution and that the process of the state adopting these regulations is flawed.”

“Their case is still lacking the ability to sustain their burden placed upon them by the law,” Mitchell said about the plaintiffs just before ruling in favor of DNR.

The plaintiffs in the case were Dorchester watermen Burl Lewis and Larry “Boo” Powley, backed by the Harvesters Land and Sea Coalition, who alleged that DNR illegally promulgated emergency menhaden regulations that went into effect in 2013.

The emergency regulations DNR introduced — after being told by the Atlantic States Marine Fisheries Commission in December 2012 that there needed to be a coastwide harvest reduction of 20 percent — established a 5.12 million pound menhaden quota for Maryland with a bycatch allowance after the quota is met.

The bycatch allowance was set at 6,000 pounds per bycatch landing licensee and 12,000 per vessel with two licensees on it. The 5.12 million-pound quota was based on Maryland’s previous menhaden landing records, which accounted for 1.4 percent of the total Atlantic Coast harvest.

Lewis argued outside of trial that menhaden, which DNR calls a migratory fish, shouldn’t be treated as a coastwide species in Maryland, which was deduced through his and other watermen’s observations while working on the water.

Lewis said the Chesapeake Bay has its own spawning stock of menhaden, meaning, for the plaintiffs in the case, the ASMFC passed down regulations that are arbitrary for Maryland.

“They’re regulating it coastwide, and we’re saying that we have a local stock that don’t migrate out into the ocean,” Lewis said. “We’re saying we have a local population here that spawns, lives year-round right here, which would make it a unique situation on the coast, and they’re trying to adopt coastwide regulations and adapt them to an inland fishery.”

But the plaintiffs didn’t get a chance to include much reasoning behind that argument in court. Any questions the plaintiff’s attorney, Jeff Blomquist, asked Lewis about his experience with what he believes to be the Bay’s spawning stock were successfully objected to by Assistant Attorney General for DNR Roger Wolfe, who argued that Lewis is not a scientist.

According to the ASMFC, during November and December, most of the adult menhaden that migrate north of the Chesapeake Bay move south of the Virginia and North Carolina capes, and stay there until reassembling in late March or early April before they migrate north again.

DNR Director of Fisheries Service Tom O’Connell said it’s possible that some menhaden don’t abide by the general migratory pattern established by scientific stock assessments, but that there’s not sufficient information to suggest that there’s a separate spawning stock of menhaden in the Bay.

But Lewis, one of the biggest menhaden fishermen in the state, said he sees the most menhaden with mature ovaries during the March harvest run, and he argues that menhaden stay in the Bay during the winter.

Before the trial began Wednesday, Wolfe successfully motioned to not allow Blomquist to call expert witnesses he planned to question, who were also DNR’s expert witnesses Deputy Director of Fisheries Service Lynn Fegley and DNR scientist Dr. Alexei Sharov. A court order previously was made that established the plaintiffs couldn’t rely on any experts to prove the facts of their case.

Wolfe also successfully motioned to exclude a number of watermen from being called as witnesses and evidence from being introduced because he said the witness list was filed late and the state never received the evidence.

Left to testify in the plaintiff’s case were the plaintiffs themselves, Lewis and Powley, who mostly testified on the economic hardship the regulations caused and their experiences with the significant menhaden population in the Bay.

When Blomquist rested his case, Assistant Attorney General for DNR Jennifer Wazenski moved for judgment on grounds that the plaintiffs didn’t meet their burden to prove that DNR violated the state Constitution or failed to follow through on all statutory requirements when promulgating the regulations.

Wazenski said, “The plaintiff’s presentation of evidence in this matter has been devoid” of anything that shows DNR failed to properly adopt the menhaden regulations.

But Blomquist argued that “there’s nothing to show that there’s a need of conservation,” which is what DNR needed to promulgate the regulations in the first place.

“It’s arbitrary, capricious and unreasonable to say that we need to conserve a species that’s the most abundant species (in the Bay),” Blomquist said.

After about an hour in his chambers following the motion for judgment, Mitchell returned to the courtroom and ruled in favor of DNR.

DNR Secretary Joseph Gill released a statement Thursday following Mitchell’s Wednesday night ruling in favor of DNR.

Gill said DNR is pleased with Mitchell’s ruling that affirmed DNR has the authority to manage Atlantic menhaden through regulation to comply with the ASMFC.

“States from Maine to Florida have a shared interest in the conservation and management of Atlantic menhaden, and implemented coordinated management measures in 2013 to boost populations and benefit surrounding ecosystems,” Gill said.

“Going forward, we remain committed to fulfilling the commission’s Atlantic menhaden plan that takes into consideration our diverse stakeholder perspectives and seeks to mitigate the socioeconomic impacts to Maryland fishermen.”

Harvesters Land and Sea Coalition spokesman Captain Rob Newberry, who was one of the witnesses excluded from testifying Wednesday, said the coalition won’t stop fighting for Maryland watermen.

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