THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, February 17, 1996 TAG: 9602170318
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY LANE DEGREGORY, STAFF WRITER
LENGTH: Long : 103 lines
Ruling in favor of petitioning North Carolina and Virginia watermen, a federal judge reopened the Atlantic Ocean to commercial catches of weakfish Friday.
Commercial fishermen from Maine through Florida will again be allowed to keep and sell weakfish - also called gray trout - caught in federal waters, between 3 and 200 miles offshore.
In response to a suit filed by watermen in December - and joined by North Carolina officials in January - U.S. District Judge Robert Doumar ruled that U.S. Secretary of Commerce Ronald H. Brown ``acted in excess of his statutory authority'' when he closed federal waters to weakfish harvests on Nov. 27.
``The Secretary seeks the moratorium on harvesting and possession of weakfish to address what he regards as a dangerous decline of the weakfish fishery,'' Doumar wrote in a 24-page ruling filed Friday afternoon in Norfolk Federal Court. ``A review from another perspective suggests the fishery is recovering. . . . Certainly, there is enough here to suggest that skepticism is warranted about the prediction of impending doom.
``The Secretary of Commerce and his designees are hereby enjoined from enforcing the Atlantic Coast Weakfish Fishery Moratorium in the Exclusive Economic Zone.''
The ruling went into effect immediately.
Fishermen and state officials were ecstatic.
``We've gone for so long feeling that there's no way to buck city hall. . . Fisheries Association Director Jerry Schill, whose group initiated the lawsuit on behalf of more than 1,000 state watermen. ``This is an extremely large victory for us.''
North Carolina Gov. James B. Hunt Jr. agreed. ``I'm pleased we won this case,'' the governor said in a statement. ``The ban was a shortsighted attempt that did nothing to protect the resource. But it would have helped to make commercial fishermen an endangered species.''
Weakfish are one of North Carolina's most profitable commercially harvested species. Watermen in the Tar Heel state catch almost half of the weakfish landed along the Atlantic Coast.
But the U.S. Commerce Secretary completely closed federal waters - between three and 200 miles offshore - to commercial weakfish harvests in late November. On Dec. 8, the North Carolina Fisheries Association, East Coast Fisheries Association of Virginia Beach, Georges Seafood of Norfolk and three other North Carolina commercial fishing companies filed suit against the commerce secretary, saying that the ban was arbitrary and that the Atlantic was filled with those fish. North Carolina officials signed on, in part, to that suit Jan. 3.
On Dec. 20, Doumar granted a temporary injunction that kept federal waters off North Carolina open to weakfish harvests until the lawsuit was settled. The injunction ran out at midnight Thursday. The ruling re-opening federal waters went into effect at 12:01 a.m. Friday.
``And I hope it sends a signal to the public, the politicians and the bureaucrats that the federal government's fishery management plans are all done wrong. Their data is wrong, said Billy Carl Tillett, who operates Moon Tillett Fish Co. in Wanchese. ``Their management tactics are wrong. They're not helping the resource by trying to shove us in the corner. And we're not going to quit fighting for them to manage these fish in a way we all can live with.''
Federal officials had not seen the judge's ruling by late Friday. Jay Johnson, a lawyer for the National Oceanic and Atmospheric Administration under the U.S. Commerce Department, said no decision had yet been made about filing an appeal.
Johnson said from his Washington office: ``It's somewhat of a surprise that the judge overturned the federal government's position on this issue.''
Doumar based his decision primarily on the commerce secretary's lack of authority to close federal waters. According to congressional legislation, the secretary is allowed to take action in federal waters if the Atlantic States Marine Fisheries Commission recommends such measures in a coastal fishery management plan.
``In the absence of recommended actions by the Atlantic Commission, there exists no coastal fishery management plan,'' the judge wrote. ``Therefore, because no plan is in effect, the Secretary is powerless to implement regulations `necessary to support the effective implementation' of that plan. The Secretary seeks to turn this framework on its head by initiating regulations, even though the Commission has not, through its fishery management plan, recommended actions for him to take.
``In this case, contrary to the legislative scheme, the tail ended up wagging the dog,'' Doumar wrote.
The judge also criticized data that the federal government supplied to show that weakfish stocks were declining. Federal officials said, for example, that weakfish landings have decreased alarmingly since 1980. ``What the Secretary and his designees fail to emphasize, however, is this significant fact: 1980 was the greatest year, in terms of landings, that the fishery had enjoyed since World War II,'' wrote the judge. ``Thus, every year since, measured against this high standard, suggests `decline.'
Hatteras commercial fisherman Bill Foster, who also serves on North Carolina's Marine Fisheries Commission, said the ruling was a relief - and validation of what watermen have known all along.
He also said, however, that if the Atlantic States Marine Fisheries Commission ``turns around and asks the commerce secretary for that moratorium, we'll be back to square one.''
Friday's ruling on federal waters does not affect state legislation on weakfish harvests, which apply from the shore to three miles into the Atlantic.
KEYWORDS: WEAKFISH BAN RULING NORTH CAROLINA by CNB