New York Fishing Net’s in Hot Water

Lee Crusius is a student in the Master of Coastal and Ocean Policy program at UNC Wilmington. He is a 2007 graduate from the United States Coast Guard Academy with a B.S. in Marine Environmental Science. With 16-years in the U.S. Coast Guard, Lee has conducted domestic and international fisheries enforcement. His research interests include adaptations of quota-share systems and integrated ecological and economic models.

Paralichthys dentatus, also known as Summer Flounder or Fluke is the center of controversy between New York and Southern States. Photo NOAA

On January 14th, 2019 the New York State Attorney’s Office filed suit against NOAA Fisheries claiming access to Summer Flounder was in violation of the Magnuson-Stevens Fisheries Conservation Act. 

At the center of the case is the distribution of annual state catch shares by NOAA. Since 1996, federal regulations have required equitable state access to federal fisheries. Yet, while New York accounts for merely 7% of the Total Allowable Catch (TAC) of Summer Flounder, North Carolina and Virginia combined can harvest 48% of all Summer Flounder. In the eyes of the New York State Attorney’s Office, this is unacceptable. The issues is complicated by uncertain data. The calculations used to determine equitable distribution are empirically based on catch survey’s conducted by NOAA over 30-years ago. 

The case is currently headed for the Eastern District of New York, containing most of the state’s fisheries ports and communities. 

On its face, New York makes a very good argument pointing to the Sustainable Fisheries Act amendments to Magnuson-Stevens. The 1996 reauthorization of Magnuson-Stevens adapted 10 national standards for conservation and management, which serve to not only protect fish stocks, but also ensure economic equity and industry safety. 

1985 Summer Flounder distribution where less fish were found in New York territories. The image is listed within the New York complaint.

From NY's perspective, 30-year old catch data is not a good source for management decisions. This is at least in part because these catch values are alleged to represent an anomalous time in the Summer Flounder history, where northern stocks were fished out, resulting in stronger measures for southern fish. If in fact New York was never given a fair share of the resource, then indeed other states are taking what belongs to the Empire State.

Yet, some of the points brought up by the court summary may not be as concrete as New York would like, as is often the case with fisheries science. While some trawl survey data may use older survey inputs, it is not the sole datapoint for determining catch values. Landings, vessel logbooks, and fishmonger data are also collected and analyze in aggregate to advise the Atlantic States Marine Fisheries decisions, the regulatory council responsible for determining catch-share quotas.

New York claims overfishing from the New England northern stock caused the original low trawl data. However, the significantly restricted at-sea days during the early 1990’s crash of the trawl program is the more likely culprit of the reduction in New England Catch abundance- not overfishing of a specific species. Even further discouraging is the allegation that organized crime syndicates worked to underreport New York’s catch numbers under the direction various schemes not unlike those posed by Carlos “Codfather” Rafael. Essentially, neither New York nor fisheries regulators can determine with any certainty how the stock looked when the catch shares were determined. 

Those involved in fishing and regulating Atlantic Groundfish are watching how the case in New York will play out. The case may not only shift state quota shares in Summer Flounder, but could also set a new precedence for science and legal rulings. 

Aside from the limited or allegedly questionable trawl surveys, potential impacts from climate change further agitate the waters. Countering New York’s claim that the stock originated in Long Island, North Carolina contests that the fish were always home off of the Carolinas. That is, the robust stock that now exists off the coast of New York is a result of southern conservation efforts and the stock's migration north due to climate change. 

The outcome of this case could very easily create a precedence for how federally managed resources are distributed to states in light of climate change.

New York v. NOAA Fisheries is based on the long-standing tradition of coastal states suing the federal government over fisheries quotas. It is not uncommon for states to sue NOAA over fisheries data and NOAA retains 20 lawyers within its fisheries and protected resources to handle the amount of litigation. Therefore, it is not surprising that New York would use this process to shift the balance of Atlantic Commission quota shares. 

2016 Summer Flounder Heat Map showing significant volume off the coast of New York, listed in the complaint to show the contrast from the 1985 dataset.

While the outcome of the case is important for Summer Flounder Trawlers throughout the eastern seaboard, there is also the potential for a major shift in fisheries litigation. 

If and how climate change enters this case is vital for many environmental rulings and could mark a transformation in the federal government’s interstate dispensary responsibilities. Like many fisheries court cases, there is a lot of political clout to move the case through appeals, which means a ruling may be years away. However, whether the outcome is based on trawl data or climate science will represent either continuation of past analysis or a shift towards new territory.