Ocean Harvesters and Omega Protein submit these comments in opposition to the fourth Petition filed in fewer than three years asking the Virginia Marine Resources Commission for relief it has consistently denied. Specifically, the Petition seeks to ban Ocean Harvesters’ vessels from continuing a more than 150-year tradition of harvesting Atlantic menhaden in the Chesapeake Bay. The VMRC should follow prior precedent and use its unreviewable discretion to deny this petition too.
This Petition one is uniquely flawed. Its basic structure is that of a legal brief, alleging that all measures the Commission has taken to manage menhaden (including provisions formerly enshrined in law) are illegal. Even the relief requested – a “moratorium” on harvest of menhaden for reduction purposes in the Chesapeake Bay – is structured like a judicial injunction with a remand to the VMRC to “correct” the alleged legal infirmities. The proper forum for these grievances is not the VMRC, but a court of competent jurisdiction. Unfortunately for Petitioner, the statute of limitations for challenging the regulations governing the regulations at 4 VAC 20-1270-35 has long passed. Even had it not, Petitioner’s arguments fail both on the law and facts.
The Petition does not even attempt to make the case that a moratorium is consistent with the Commission’s legal responsibilities under the Virginia Code, much less the Atlantic States Marine Fisheries Compact. As to its fisheries management duties, the VMRC is not guided by the “Public Trust Doctrine.” VMRC is created by statute and is guided by law which, among other things, instruct the Commission to “promote the general welfare of the seafood industry.” Va. Code § 28.2-201(1). How a measure that would destroy a historic fishery and fishing community meets this objective is unexplained, as is how such a measure is consistent with the standards for fisheries management set forth in Virginia Code § 28.2-203. As explained below, it is not.
Atlantic menhaden is the most conservatively managed forage stock in the United States, the only one managed for its ecosystem role under a state-of-the-art ecological model. The fishery is certified as sustainable by the Marine Stewardship Council. The stock is not undergoing overfishing (i.e., not harvested at an excessive rate) and is not overfished (i.e., menhaden fecundity is above threshold levels of concern). As to the portion of harvest that occurs in Chesapeake Bay, a precautionary cap constrains harvest to their lowest levels over which data is available. The overall quota for the resource has kept harvest levels at the lowest sustained levels since the Depression era, similar to the period from 1880 to 1898.
This is not a case in which VMRC and the Atlantic States Marine Fisheries Commission have ignored their management responsibilities. Both within the Bay and throughout the range of the stock, measures have been taken to keep harvest levels well below historic levels (19% of peak landings and a third of harvest during the 1980s and 1990s), periods when everyone recognizes the Chesapeake Bay ecosystem was healthier.
Finally, the ASMFC is currently reviewing the Chesapeake Bay cap and has been appropriated $2.5 million to study the Bay fishery. A team of leading menhaden researchers are developing a research “roadmap” under the auspices of the Science Center for Marine Fisheries. It would not be appropriate for the VMRC to get ahead of these processes. Given that the relief Petitioner requests would devastate Virginia’s historic menhaden reduction fishery and cause grave economic harm to the Northumberland community at a time when jobs are scarce and Virginia citizens are struggling with inflation, the precautionary approach is to maintain the status quo.
The Companies’ Detailed Arguments in Opposition
The Petition relies on two flawed premises. The first is that the Public Trust Doctrine “requires” the Virginia Marine Resource Commission to undertake specific actions, beyond those set forth in the Commission’s governing statutes. It does not. When the General Assembly wants the VMRC to employ this doctrine it specifies so in statute and has not done so with respect to the Commission’s fisheries management responsibilities.
Secondly, Petitioner claims the Commission has failed to meet its obligations under the statute. As the Circuit Court for the City of Richmond recently held, VMRC’s management of the menhaden resource is compliant with the law, acting within its legal authority according to information in the record. As long as the VMRC continues to base its decisions on the best scientific information available – which includes that developed by the ASMFC – and, when it chooses to enact a regulation governing the menhaden fishery, is satisfied that the standards set forth in Section 28.2-203 are met, such decisions are lawful.
The “choosing” to regulate is important. The Petition alleges the current menhaden regulatory program is unlawful. Petitions for a new or amended regulation under the Virginia Administrative Process Act (“VAPA”), Va. Code, § 2.2-4007, are not the means for challenging a regulation. If the Petitioner believes the VMRC’s regulatory program is contrary to law, the remedy is to challenge implementing regulations within the time limits set forth in law. Petitioner seeks to evade this burden and the statute of limitations (the 30-day window for challenging 4 VAC 20-1270-35 having expired years ago) and put Commissioners in an untenable position. VMRC members are not judges.
The burden of a person petitioning for a rule is to show that the regulatory action request is consistent with law and, in the case of a fishery regulation, is supported by the “best scientific, economic, biological and sociological information available.” Va. Code 28.2-203(2). This Petition does not even attempt to meet this burden.
The Commission should reject the Petition and its suppositions about impacts of the fishery which defies over a century-and-a-half of experience. It should instead rely on the experts who advise both it and the ASMFC, as well as the legal advice provided by the Virginia Attorney General’s office.
Petitioner wrongly argues the “public trust doctrine” limits how the Commonwealth manages migratory menhaden while in Virginia waters. As the Virginia Supreme Court noted, “The common rights in a public fishery are at all times subject to the disposal of the legislature, and it may deprive the public of the right at its pleasure. This may be done by granting exclusive rights to individuals, or by dealing with the water in such a way that the fishery is destroyed.” Commonwealth v. Newport News, 158 Va. 521, 552-53 (1932) (citation omitted).
No commissioner nor anyone in the menhaden sector seek to “destroy” the fishery. Rather, Atlantic menhaden is the most conservatively managed forage fishery. It is certified by the Marine Stewardship Council based on the fact it is the only forage stock explicitly managed for its role in the ecosystem; is governed by precautionary catch limits (including the Bay cap); and has been proven to have low bycatch.
The public trust doctrine is not a source of law that trumps Virginia’s laws or constitution. When the General Assembly wants the doctrine to be applied, it says so specifically. As the Virginia Court of Appeals, Norfolk Division, recently noted:
The General Assembly did not include any “public trust” or “public interest” language in Code § 28.2-600, even though it has expressly directed VMRC to consider the public interest in other related statutes, such as when the agency issues general oyster leases, see Code § 28.2-607 (requiring VMRC to consider whether “the assignment is in the public interest”), and issues permits for other bottomland uses, see Code § 28.2-1205(A) (requiring VMRC to “consider the public and private benefits of the proposed project” and that it “exercise its authority under this section consistent with the public trust doctrine”). It declined to include comparable language in Code § 28.2-600. “[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.”
City of Virginia Beach v. VMRC, Rec. No. 1648-17-1 (Aug. 21, 2018) (citation omitted). The same holds true for Chapter 2 of Title 28.2, which, among other things, sets forth the Commission’s authority to manage fisheries and sets forth the standards governing that process. Nowhere in these laws is the Commission directed to apply the doctrine.
Petition claims to find a “public trust” duty in § 28.2-201, but the very first subsection states that one of its duties is to “[a]dopt regulations … necessary to promote the general welfare of the seafood industry.” Id. § (1). Conservation is an important objective, but equally important mandates are to promote the commercial fishing industry and reap economic benefits from the Commonwealth’s marine resources. See, e.g., § 28.2-202(2) (VMRC should “[p]rovide for the development of programs designed to enhance and improve commercial and sport fisheries in Virginia’s tidal waters.”); § 28.2-203(1) (achieve “optimum yield” or “the amount of fish or shellfish which will provide the greatest overall benefit to the Commonwealth”) id. § (7) (regulations “shall, where practicable, minimize regulatory burdens which inhibit innovation, expansion, and normal business operations”).
The Public Trust Doctrine has no application to this matter.
Petitioner’s most misguided arguments relate to alleged violations of the standards for management in Virginia Code § 28.2-203. Not only is the Petition wrong on the law and facts, the relief requested – a moratorium on reduction harvest in the Chesapeake Bay – is inconsistent with the standards the law requires the Commission to apply.
Fishing in the Bay is a vital element of Ocean Harvesters’ fishing and business plans. There are not enough days with sufficiently calm weather in the ocean for its vessels to safely harvest menhaden in sufficient quantities to remain viable. The Chesapeake Bay became the menhaden reduction industry’s center 150 years ago not only because of the amount of fish annually migrating in, but also due to the relative shelter the Bay provides. Additionally, this is a “sight fishery” where spotter planes and vessels must be able to see menhaden schools. Windy, stormy, and overcast conditions that make operations impossible are much more frequent in the ocean.
Given that Atlantic menhaden are not overfished or subject to overfishing, in an ecosystem context no less, the first standard requires the VMRC to obtain “optimum yield,” or “the amount of fish . . . which will provide the greatest overall benefit to the Commonwealth.” Va. Code § 28.2-203(1). Depriving the Commonwealth millions of dollars in revenues and hundreds of jobs from a sustainable fishery falls short of this standard.
Petitioner prefers the Commission define optimum yield solely in terms of that part of the population inhabiting the Bay at any given time. Even if, as a matter of science, it were possible to determine biological reference points for a subset of a population (a matter actually being investigated by the ASMFC), there is no scientific basis for doing so now.
The second standard requires VMRC to base decisions “upon the best scientific, economic, biological and sociological information available.” Va. Code § 28.2-203(2). The best science, based on years of research, is that Atlantic menhaden are a single migratory stock that is neither overfished nor undergoing overfishing.
The Chesapeake Bay cap is not based on scientific evidence but is rather a “compromise” instituted as a precautionary measure to avoid the harms with which Petitioner is concerned. While not based on scientific evidence, it has reasonably been determined to provide such protection by maintaining levels of harvest at the lowest end of the range of harvests that have been continuously occurring in the Bay for 150 years. Under this standard, the Commission may rely on the fact that, over this stretch of time, the Bay ecosystem has supported both menhaden harvests magnitudes larger and higher populations of predator species.
Lastly, the law requires VMRC to also consider “economic” and “sociological” information. Thus, a decision not to eliminate a historic, as well as culturally and economically important, fishery is entirely consistent with this standard.
Petitioner asserts that the Commission must conduct studies and concoct information to manage the fishery. This is not the law. Federal courts have interpreted the equivalent federal standard as requiring only “that rules issued by the [agency] be based on a thorough review of all the relevant information available at the time the decision was made, and insures that the [agency] does not ‘disregard superior data’ in reaching its conclusion.” The Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005). “Absent some indication that superior or contrary data was available and that the agency ignored such information, a challenge to the agency’s collection of and reliance on scientific information will fail.” N. Carolina Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62, 80 (D.D.C. 2007). VMRC complies with these standards.
The third standard requires that “[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout the territorial waters of the Commonwealth, and interrelated stocks of fish shall be managed as a unit or in close coordination.” Va. Code § 28.2-203(3). This is how menhaden are managed. The Commonwealth’s allocation is distributed among user groups and, for the largest sector, the reduction fishery, it distributes catch between the Bay and the ocean. The “unit” of menhaden in the Bay is not a different “unit” from those in Virginia’s ocean waters. They are all part of one stock which is managed as forage (i.e., in “close coordination” with “interrelated stocks of fish”). The law requires nothing more. Treating menhaden in the Bay differently may run afoul of this standard.
The fourth standard requires allocations to be “fair and equitable to all fishermen…, promote conservation…, and [be] carried out in such manner that no person acquires an excessive share of such privileges.” Va. Code § 28.2-203(4). Petitioner claims the reduction sector’s allocation (just over 90% of Virginia’s share) is “unfair” and “excessive.” It is not unfair that the General Assembly allocated each sector the proportion of harvest it historically landed any more than it was for the ASMFC to allocate Virginia the proportion of quota it historically harvested.
The allocation standard does not require equal shares. It must be read in conjunction with the other standards, like use of the “best information” and achieving optimum yield. Like Virginia, federal and interstate fisheries managers look at historic and current use of, and dependence on, a resource when allocating resources. It’s an objective way of making such decisions rooted in data and to ensure fairness. The opposite would be to arbitrarily distribute resources, such as to favored groups. This the law does not allow.
Distributing allocations based on use is the best means of attaining optimum yield. Here, allocating the bait sector much larger shares would prevent the VMRC from maximizing the fishery’s “overall benefit to the Commonwealth” because the allocation would go underutilized. Jobs and economic activity in the reduction sector would be lost with no counterbalancing gains in the bait sector. Granting Petitioner the relief requested – preventing Ocean Harvesters from operating in the Chesapeake Bay – would effectuate an enormous reallocation that is inconsistent with this standard.
The fifth and seventh standards are interrelated and each weighs heavily against granting Petitioner relief. The first provides: “Conservation and management shall, where practicable, promote efficiency in the utilization of fishery resources, except that no such measure shall have economic allocation as its sole purpose.” Va Code § 28.2-203(5). Purse seining is an extremely efficient means of harvesting menhaden, in terms of volume and in avoiding incidental catch. The Bay fishery is even more efficient because it takes far less fuel, food, and time to harvest a given amount of menhaden there compared to the ocean. Prohibiting the Chesapeake Bay fishery would do the opposite of what this standard requires – mandating inefficiency by regulation.
The seventh standard instructs VMRC to “minimize regulatory burdens which inhibit innovation, expansion, and normal business operations.” Va. Code § 28.2-203(7). There is little need to belabor this point. Ending the Chesapeake Bay reduction fishery would be an enormous regulatory burden that would not “inhibit” Omega Protein’s and Ocean Harvesters’ normal operations, it would end them.
The final standard provides that “[c]onservation and management measures shall take into account variations among, and contingencies in, fisheries, fishery resources, and catches.” Va. Code § 28.2-203(6). Petitioner’s claim is that a “static cap” does not consider the dynamic Chesapeake Bay ecosystem. First, the cap is not “static.” It has been reduced three times from over 100,000 mt to 51,000 mt, and the ASMFC is considering measures that may reduce it further. Second, the fact that there is a cap is a recognition of the “variations” and “contingencies” in the fishery and the fishery resources. This standard requires no more than recognizing that fisheries are dynamic and that new information should be incorporated into management decisions. This is exactly how the VMRC manages this resource in conjunction with the ASMFC. The law requires nothing more.
In summary, a decision to terminate the Chesapeake Bay reduction fishery, and with it an industry which is an integral part of Virginia’s history would be arbitrary, capricious, and inconsistent with the standards by which the Commission is charged with carrying out its duties. It would violate the requirement to obtain optimum yield and be based on no scientific information whatsoever. In fact, by imposing a ban, the VMRC would have to ignore economic facts and socioeconomic impacts. It would manage menhaden while in the Bay differently than when in Virginia’s coastal waters, constitute an excessive and unfair allocation to the bait sector, mandate inefficiency, maximize regulatory burdens, disrupt business operations, and quash innovation and expansion. In short, the relief sought is simply inconsistent with the law.
For all these reasons, the Companies respectfully request the Commission to deny the Petition. More detailed comments have been submitted directly to VMRC.