29 Dec 2021: A Year In Review
|CCA NC ADVOCACY: A YEAR IN REVIEW|
|As another year comes to a close, I have been reflecting on what has been a very busy and eventful year for CCA NC and our coastal fisheries advocacy. First, I want to thank everyone that has supported our mission this year. Your support allows us to continue as the voice for recreational fishermen, and to serve as a watchdog for our coastal fisheries. Your support gives a name and a voice to the struggle to protect the future of fishing in North Carolina. It’s your support that is making sure that the North Carolina I grew up in will be there for my children and grandchildren – for YOUR children and grandchildren. Thanks to your support, CCA NC is well-known across the state as the watchdog and champion for our coastal fisheries – a public trust resource that belongs to all of the citizens of North Carolina.
Now, here is my 2021 advocacy highlight reel for a Year in Review:
NC GENERAL ASSEMBLY
The NC Legislature finally wrapped up one of the longest sessions in history in November following the approval of the first state budget since 2017. The session, which opened way back in January, started out with a flurry of coastal fisheries related bills but as usual, little made it into law and once again we saw “much ado about nothing” in the end.
A number of coastal fishing related bills were filed in the NC House and Senate early in the year ranging from a Senate bill that sought to reform the way fisheries management policies are adopted to a pair of House bills that sought to make the loggerhead sea turtle the official state marine reptile and the bottle-nosed dolphin the official state marine mammal. While the Marine Fisheries Reform bill, which did little to help coastal marine conservation, passed unanimously out of the Senate it ran into CCA NC-led opposition in the House and never made it out of the House Rules Committee. Conversely, two separate bills that would respectively recognize the loggerhead sea turtle and bottle-nosed dolphin as the official marine reptile and marine mammal passed unanimously through the House despite NC being the only state in the country that has a federal incidental take permit that allows the killing of endangered sea turtles in the large-mesh gill net commercial flounder fishery. Those two “feel good” bills remain in the Senate Rules Committee.
Two other bills aimed at changing the direction of our declining fish stocks and beginning the rebuilding process were filed in the House and then sent to the Rules Committee to be ignored. In early April, Rep. Billy Richardson (D – Cumberland) introduced a bill asking the legislature to put the question of a ban on the use of gill nets on the next election ballot to hold a statewide referendum on the question. The idea was that if our elected representatives do not want to deal with the issue, then let’s allow the people to decide. In early May, Rep. Larry Yarborough (R – Person) along with 18 Republican and Democratic colleagues including House Majority Leader John Bell introduced HB 894 aimed at rescuing Southern flounder, the poster fish for the state’s mismanagement over the past two decades. For several sessions, Yarborough and Richardson have been the proverbial voice crying in the wilderness that falls on the deaf ears of legislative leadership. The coastal legislators, whether Republican or Democrat, along with the powerful commercial fishing lobby, have stopped all meaningful legislation that would rebuild declining fish stocks. In the past three decades only one bill supported by CCA NC has passed the House and none in the Senate.
When the legislative session closed, no individual fisheries bills had become law. The only piece of fisheries legislation to survive was a study to be conducted by the UNC Policy Collaboratory which was added to the budget. The bill provides $1,000,000 for the Collaboratory to provide a report on the status of specific fish species of importance to recreational and commercial fishing in North Carolina. A controversial provision to have the DMF look into a commercial fishing license buyback program did not make it into the final budget.
NC MARINE FISHERIES COMMISSION
At their February meeting, the N.C. Marine Fisheries Commission again ignored overwhelming public comment in approving a 70/30 commercial versus recreational allocation in the Southern flounder Fisheries Management Plan. The winter meeting of the MFC wrapped up February 25th following a brief but often contentious discussion on a presentation by N.C. Division of Marine Fisheries staff on options for establishing a quota based managed stock when the new FMP is approved.
Before much discussion on the options could even begin, Commissioner Doug Cross was quick to head off any debate with a motion to approve a 70/30 allocation of the fishery. Both at-large commissioners, Tom Hendrickson and Martin Posey, voted for the allocation with the three commercial commissioners, choosing to ignore public comments that supported an equitable 50/50 allocation.
This rushed vote also discounted the fact that the commercial industry has dominated the harvest of Southern flounder for decades leading to the overfished status. The industry has fought any reasonable reductions in harvest proposed by previous commissions and supported by recreational anglers. The commercial industry even filed a lawsuit in 2015 to have the supplemental reductions from that year stopped.
Recreational Commissioner Tom Roller did his best to engage the commission in meaningful discussion before the vote was taken but it was clear that Commissioner Cross’ early motion to set the allocation at status quo was calculated to preempt any discussion. The MFC chose instead to ignore the public comments in support of a 50/50 allocation as well as the economic data presented by staff that show the sales impact from recreational fishing targeting Southern flounder averages $243 million per year compared to $14 million for commercial fishing. With the current 2021 allocation for gill nets reduced to 195,105 pounds each of the average 800 commercial participants can expect to make $638 for the year based on current fish prices.
In addition, the commission again took no action on opening recreational angling access to the ocean flounder fishery. With passage of Amendment 2, recreational anglers were not only relegated to a short season on Southern flounder but were completely shut out of the ocean flounder fishery, which is primarily summer and Gulf flounder. To the contrary, however, the commercial fishery in our state has continued unchanged landing millions of pounds of summer flounder from ocean trawlers.
Following an overwhelming public response to the allocation vote by CCA members and recreational fishermen, the MFC chairman called a special meeting in March to reconsider the issue. The Commission was able to have the substantial debate on the issue that was cut short by Commissioner Cross’ preemptive motion at the February meeting and a plan for phasing in a 50/50 allocation was approved by the Commission for consideration in the draft amendment.
At the November MFC meeting held in Emerald Isle, the nine-member commission, all now Governor Cooper appointees, voted 5-3-1 to reject the “best available science” as laid out by the DMF Plan Development Team in the Shrimp Fisheries Management Plan Amendment 2. The scientists from DMF had laid out a plan designed to meet the goals and objectives of the Shrimp FMP, as developed by the Marine Fisheries Commission, which included an overarching goal to minimize ecosystem impacts. Objectives to be used to achieve this goal included: Reduce bycatch of non-target species of finfish and crustaceans.
The Division, including Director Kathy Rawls, had stated several times that status quo would not meet the goals and objectives of the Plan Amendment as developed by the Marine Fisheries Commission, yet the Commission effectively chose status quo – again.
The Gang of Five that voted against the Division recommendations included the two At-Large Commissioners, Tom Hendrickson, and Dr. Martin Posey, a Ph.D Biology Professor at UNC Wilmington. The Division’s science team had laid out a comprehensive plan that included new area closures necessary to meet the goal of bycatch reduction and habitat protection based on decades of studies on critical fish nursery habitat areas. These area closures included much of the remaining open portions of the Pamlico, Bay and Neuse rivers, and Adams Creek, which were all areas identified by scientists as critical areas for juvenile fish as they are developing before moving into the more open waters of the Pamlico Sound.
Of concern for the Gang of Five was the inflamed notion that these new area closures would unfairly target the small boat operators and recreational shrimpers because the smaller size of their boats would not allow them to operate in the open waters of the Pamlico Sound and out into the Atlantic Ocean. Scores of concerned citizens came forward to support the claims that “thousands of people” would be put out of work and the public would no longer be able to buy fresh local shrimp. No scientific data was presented to support these claims yet the Gang of Five used this propaganda to assault the Division scientists for presenting such an egregiously unfair plan. Emotion once again ruled the day over science.
Once the motion to support the Division recommendations failed, Commissioner Doug Cross, a fish house owner, introduced his plan that included closing only Bogue Sound, “a relatively small and shallow body of water located in Carteret County” which accounts for only 4.8% of shrimp landings in the Central Area, and the Carolina Beach Yacht Basin, an area already surrounded by closed trawling areas. Tom Hendrickson offered a second and Dr. Posey soon came on board with his support to seal the fate of another “status quo” shrimp management plan. Interesting to note that under the Division’s analysis they included the negative concern that closing these areas would be “Particularly limiting to smaller commercial and recreational shrimpers”, the very people the Gang of Five were out to protect. No scientific data was offered by Cross, Hendrickson or Posey to support how their proposal would help meet the goals and objectives of reducing bycatch in the shrimp trawl fishery or help protect critical habitat areas. They would certainly appear on the surface as doing just enough as to fall outside of doing nothing and supporting status quo.
Dr. Posey tried to explain to me how his vote was based on his personal concerns that there was not anything in the plan to help those displaced shrimpers transition into other livelihoods after the Division area closures put them out of business. Nothing based on science that would help meet the goals and objectives of bycatch reduction and habitat protection, just emotion based on unsubstantiated claims.
Though disappointing, the decision of the Gang of Five was not surprising. It was yet another chapter in a long line of inaction or baby step management often due to the inclusion of commissioners with a financial stake in the outcome. Over the last 25 years, as our fish stocks have continued their downward slide, North Carolina has had five different governors, all with the power to reverse these trends. The legislature has also chosen to stay on the sidelines, with the rare appearance at Commission meetings to threaten legislative reversal when reform efforts get too close. This continued inaction on the regulatory and legislative levels could lead to some stocks getting too low to bring back. For that reason, a lawsuit led by CCA NC seeking to hold the State accountable for mismanaging North Carolina’s coastal fisheries resources is moving ahead.
In November 2020, a group of 86 North Carolina citizens and the Coastal Conservation Association of North Carolina filed a lawsuit to hold the State of North Carolina accountable for the decades-long, chronic decline in North Carolina’s coastal-fisheries resources. The lawsuit describes how the State has failed to meet one of its core responsibilities: managing and preserving North Carolina’s coastal fisheries resources for the benefit of current and future generations.
In the Court’s first decision in the case, the Court on March 31, 2020, denied a motion to intervene as a defendant party filed by the North Carolina Fisheries Association, a trade association for the commercial fishing industry. In denying that motion, the Court agreed with the 86 North Carolina citizens and the CCA NC that the only proper defendant in the lawsuit is the State, and that the commercial fishing industry did not have any right to intervene in the case.
CCA NC’s General Counsel, Dr. Tim Nifong, commented on the ruling. “We are pleased with the Court’s decision, which faithfully tracks North Carolina precedent. As the Court’s decision reflects, only the State can defend claims that it has failed to meet its public-trust and constitutional obligations, which go to the very heart of public rights and proper public resource management in a democracy.”
The State responded to the lawsuit in January 2021 by filing a motion to dismiss the plaintiffs’ claims. Among the State’s various arguments for dismissal, it asked the Court to give it immunity from lawsuits of this kind. The State also denied that it had any responsibility to hold in trust and manage coastal fisheries resources for the benefit of its current and future citizens. The Wake County Superior Court considered hundreds of pages of materials and held a two-hour hearing on the State’s motion on June 9, 2021. On July 28, the Court issued an order rejecting each and every one of the State’s arguments. The State is now seeking to appeal that ruling.
A number of observers were surprised by the State’s position in response to the lawsuit. “For the State to argue in court that it has no responsibility for preserving our coastal fisheries is deeply concerning,” said Bert Owens, Chairman of the Coastal Conservation Association of North Carolina’s Board of Directors. “By taking this approach, the State has made this about something larger than the documented decline of our coastal fisheries under its management. There is a fundamental disagreement here about the relationship that we, as citizens, have with our government, and the government’s responsibility to ensure that we have natural resources like fish and wildlife to pass along to future generations.”
Professor Joseph Kalo, the Graham Kenan Emeritus Professor of Law at the University of North Carolina School of Law, offered the following: “The State’s assertion that it does not have an enforceable, affirmative obligation to manage North Carolina fisheries for the long-term public good flies in the face of the clear language of the North Carolina Constitution, Article 1, Section 38, which states that the right to fish shall be forever preserved for the public good. The State’s position would make the constitutional right to fish meaningless. Surely the voters in 2018, who by a wide margin approved this amendment to the Constitution, believed that the right to fish meant something more than the right to wet a hook. Preserving the right necessarily implies an obligation to use sound science to secure, protect, and manage the health of fishery resources for the long-term public good.”
Notably, the group of 86 citizen plaintiffs in the case includes five former members of the North Carolina Marine Fisheries Commission, a state government commission responsible for fisheries management. Mac Currin, one of the five former state officials who joined the lawsuit as a plaintiff, commented that he was “grateful for the Court’s ruling, which puts us closer to ensuring that sustainable coastal fisheries will be there for our children and grandchildren.”
On December 9th, our legal team received the State’s brief on their appeal and has been preparing our response which is due to the Court of Appeals on February 9, 2022. We are also recruiting amicus parties to provide friend of the court briefs in support of our position. We already have commitments from several other conservation groups, and we are excited about our position going into a hearing before the NC Court of Appeals next year.
With your continued support, CCA NC will once again be the watchdog for our coastal fisheries and the voice of recreational anglers in the legislative, regulatory and judicial arenas. I often go back to the famous speech by our first conservation President, Theodore Roosevelt when considering the mission of CCA in North Carolina:
“It is not the critic who counts, not the one who points out how the strong man stumbled or how the doer of deeds might have done them better. The credit belongs to the man who is actually in the arena, whose face is marred with sweat and dust and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, if he wins, knows the triumph of high achievement; and who, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.”
We look forward to another year in the arena in support of a worthy cause – let’s save some fish for the future! If you are considering a yearend contribution, we hope you will consider supporting our efforts to conserve our coastal fisheries for the use and enjoyment of our future generations. Please go to Coastal Conservation Association of North Carolina | CCA NC today to learn more and to donate.
Thanks again for your continued support.