THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, December 12, 1995 TAG: 9512120306
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY LANE DEGREGORY, STAFF WRITER
LENGTH: Long : 120 lines
Federal officials have no right to ban commercial fishermen from catching weakfish in offshore waters of the Atlantic Ocean, Virginia and North Carolina watermen contend in a federal lawsuit.
Their 20-page petition, filed Friday in U.S. District Court in Norfolk, says the U.S. secretary of commerce acted illegally when he approved a rule late last month to close Atlantic waters between three and 200 miles offshore to all commercial weakfish catches beginning Dec. 21.
Norfolk attorney Waverly L. Berkley III, who filed the suit for the Virginia and North Carolina fishermen, also asked a federal judge for a temporary injunction that would allow watermen to continue catching weakfish until court officials can rule on the constitutionality of the pending ban.
Plaintiffs include the North Carolina Fisheries Association, a New Bern-based non-profit lobbying group for commercial fishing interests that boasts more than 1,000 members; the East Coast Fisheries Association, a Virginia Beach non-profit trade organization that represents commercial fishermen and seafood processors; Georges Seafood Inc., a Norfolk-based wholesale fish dealer; Fos-Fish Inc., a Hatteras Island commercial fishing company; Luther Smith & Son, an Atlantic, N.C., commercial fishing company; and Homer Smith Seafood Inc., a Salter Path, N.C., commercial fishing company.
The suit was filed against U.S. Commerce Secretary Ronald H. Brown.
``The federal court doesn't have to have a hearing on this injunction request before Dec. 21. But I expect them to be sensitive to the needs of the fishermen and act expediently on this issue,'' Berkley said Monday. ``We want the court to at least allow us to continue catching these fish as they debate the legality of our other claim.''
Weakfish, also known as gray trout, are the second most valuable finfish caught by North Carolina's commercial watermen and a popular species with recreational anglers.
North Carolina and Virginia commercial fishermen annually catch more than 80 percent of the East Coast's weakfish - with North Carolina accounting for more than 70 percent of the Atlantic's landings. About 38 percent of North Carolina's commercial catch comes from offshore waters, with the rest being landed in state waters no more than three miles off the coast.
Federal agencies control waters from three to 200 miles offshore, an area that has been designated an ``Exclusive Economic Zone.'' State fisheries officials enact rules governing waters from the coast to three miles offshore. Even if the federal ban goes into effect next week, watermen will still be allowed to catch weakfish in state waters.
The primary weakfish season off North Carolina and Virginia runs from January through March.
On Nov. 22, the National Marine Fisheries Service announced plans to close the commercial harvest of weakfish from three to 200 miles offshore to allow stocks to recover from overfishing. The ban will be in place until weakfish populations improve, federal officials said.
``Without the immediate conservation measure of a temporary ban on fishing for weakfish to force rebuilding of the stock, all public users of the weakfish resource along the entire coast would experience the severe and long-term impact of a complete stock collapse,'' said National Marine Fisheries Service Director Rollie Schmitten.
According to the lawsuit, the federal government acted against the Constitution when it enacted that ban because the national ruling usurped the states' rights to manage their own fish stocks.
``The responsibility for managing coastal fisheries lies with the states,'' says the lawsuit, quoting the 1976 Magnuson Act, which gave the federal government the right to regulate commercial and recreational fishing practices. ``The Atlantic States Marine Fisheries Commission's role is only advisory. Its duty is to conduct research and make recommendations on conservation of coastal fisheries.''
Two years ago, Congress expanded the role of the Atlantic States Marine Fisheries Commission, giving that group regulatory authority. ``Congress had no authority to change the entire purpose of the compact without going to the member states for ratification - and this it did not do,'' says the suit. ``Thus did Congress give authority for the Commission to usurp a state's authority to regulate fisheries within its own boundaries.
``Amendment 10 to the Constitution of the United States precludes Congress from acting in a manner to impair the states' integrity or their ability to function effectively in the federal system.''
State fisheries regulators already have tried to manage weakfish in their own waters.
Commercial fishermen in Virginia, for example, have had to remove some of their pound nets this year. In March, the Virginia General Assembly voted to withdraw from the Atlantic States Marine Fisheries Commission effective July 1, 1996, so that their own fisheries officials could gain more control over the resource.
``With Virginia's withdrawal,'' the suit says, ``commission fishery management plans will cease to have any effect in Virginia waters.''
North Carolina legislators pondered a similar move. Instead, the state's fisheries managers decided to offer an alternative weakfish preservation plan in hopes that the federal government would reconsider closing the Exclusive Economic Zone. This month, the North Carolina Marine Fisheries Commission made permanent a temporary ban on fly-net fishing south of Cape Hatteras.
But the move failed to prevent the federal closure.
On Monday, North Carolina officials said they have made no decision on how to go about challenging the federal weakfish ban.
In addition to the constitutionality question, the lawsuit decries the effectiveness of the pending federal moratorium against harvesting weakfish. A complete closure in offshore waters would cause many fish that would die anyway to be wasted as watermen are forced to toss them overboard. There is no provision for bycatch while fishing for other species in the upcoming weakfish ban.
``A weakfish brought aboard a vessel which cannot by regulation be landed . because weakfish do not usually survive once trapped in a net. No conservation purpose is served in such case.''
The suit also says that federal officials ignored state data and manipulated landings statistics to justify the weakfish closure.
A federal weakfish ban, the lawsuit says, ``would not protect the Atlantic Coast weakfish stock, would not aid substantially in the rebuilding of that stock . . . and would have adverse economic and social impacts on the industry.''
To secure a preliminary injunction, fishermen need only show that they will suffer irreparable harm if the injunction is not granted, says the suit. ``Irreparable harm,'' the suit says, ``includes loss of profits, loss of jobs, potential loss of vessels through mortgage foreclosures and bankruptcy of businesses.'' by CNB