THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, October 29, 1994 TAG: 9410290178
SECTION: BUSINESS PAGE: D1 EDITION: FINAL
SOURCE: BY CHRISTOPHER DINSMORE, STAFF WRITER
LENGTH: Medium: 80 lines
The commercial fishing industry won a partial victory Friday as a federal judge in Norfolk ordered the U.S. government to increase the 1994 summer flounder quota.
In a rare ruling from the bench, U.S. District Judge Robert G. Doumar ordered the Commerce Department to reset the commercial quota to about 19 million pounds of flounder from about 16 million pounds.
But just because the judge ordered it doesn't mean the department's National Marine Fisheries Service will comply. While it could acquiesce, the government could appeal the ruling or reset the quota to some other number, possibly even lower. A new quota could be based on newer data of the flounder stock.
``In remanding it back to the agency, it is the government's position to use the best available scientific data,'' said Charles W. Brooks, the government's attorney in the case.
Brooks declined to elaborate.
The latest government data on Atlantic coast flounder stocks isn't good. The Mid-Atlantic Fishery Management Council, which recommends the quota to the fisheries service, suggested a 27 percent reduction in the catch for 1995.
The council recommended a 1995 quota of 19.4 million pounds that would be split 60-40 between commercial and recreational fishing. For 1994 the quota was 26.7 million pounds - 16 million for commercial fisherman and 10.7 for recreational fishing.
Commercial fishing companies with flounder boats operating between Massachusetts and North Carolina challenged the 1994 quota, suing in Norfolk's U.S. District Court. The companies - including Wanchese Fish Co., which has operations in Hampton and Wanchese, N.C. - argued that the government didn't use the best available scientific data.
Tim Daniels, vice president of Wanchese Fish, left the courtroom to go put a message out to all the company's boats. ``I'd like to go tell the fishermen now,'' he said. ``I think they'll be happy.''
In ordering the Commerce Department to reset the quota, Doumar said the quota, to some extent, had been set arbitrarily.
Instead of balancing the need to conserve the resource with the rights of the those who harvest it as required under federal fishing laws, the government erred on the side of conservation, Doumar said.
``It wasn't balancing, it wasn't balancing at all,'' Doumar said. ``All they wanted to do is to conserve the fish.''
In setting the quota, the government took what is called in statistics a standard deviation from the mean, reducing the quota 16 percent from 19 million pounds to about 16 million pounds.
``There is no reason for going to the deviation except they wanted to be doubly sure,'' Doumar said. ``It's an arbitrary determination. They already had a conservative quota estimate.''
Doumar cited the government's disregard of the effect of surface water temperature and its assumption that all fish that are discarded by fishermen because they're not big enough die. He also expressed concern about how much public input there was in the quota-setting process.
While certain Mid-Atlantic Fishery Management Council meetings were advertised, council staff discouraged the public from attending, Doumar said.
The attitude of the government seems to be: ``We will make a decision that's going to effect you, but we don't want to have to hear from you,'' the judge said.
The flounder fishing industry took Doumar's decision as ``very clear victory,'' said David E. Frulla, the fishing companies' attorney.
Besides the order to roll back the quota, Doumar's decision pointed to a lot of deficiencies in the way the quota is set.
This was the second time the fishing companies had challenged the quota. Last year the suit was thrown out of a Washington federal court as moot because it wasn't heard until December, when the season was almost over.
The decision also tells the industry that it needs to get involved at every step of the quota-making process and how to be prepared for next year's inevitable challenge, Frulla said.
``Things are only getting worse quota-wise,'' he said.
KEYWORDS: FISHING INDUSTRY by CNB