Lawsuit says Virginia menhaden regulators unlawfully increased catch limit

A Chesapeake Bay-focused legal team filed a lawsuit Wednesday against the Virginia Marine Resources Commission saying the state agency failed to properly manage the menhaden population in state waters by increasing the fishery catch limit.

The Chesapeake Legal Alliance, based in Annapolis, filed the lawsuit in Richmond City Circuit Court on behalf of the Southern Maryland Recreational Fishing Organization, a group of 128 members who fish in tidal waters and portions of the Chesapeake Bay in both Maryland and Virginia.

“This is to get the VMRC to apply the law and to protect Virginia waters inside and outside of the Bay,” said David Reed, executive director of the alliance.

The lawsuit argues that the Virginia Marine Resources Commission erred in two ways. First, it says the body “rubber stamped” an increase to the menhaden catch quota handed down by the Atlantic States Marine Fisheries Commission, which sets catch limits along the East Coast. Second, it contends the VMRC unlawfully approved the increase outside the time period state law allows for regulatory changes.

The ASMFC increased the coastwide catch limit for the menhaden fishery to 233,550 metric tons in November. Virginia is allocated 75% of that catch, and in turn, VMRC voted in February to allocate 90% of Virginia’s allowed catch to the state’s reduction fishery, Omega Protein, which harvests the fish to grind up for products like fishmeal and fish oil. 

The percentages equate to Omega Protein being allowed to catch 158,157 metric tons of menhaden, a 21,000 metric ton increase from the prior year, the lawsuit states. With a catch limit within the Chesapeake Bay of 51,000 metric tons, the increase means Omega Protein can catch up to 107,157 metric tons in the ocean.

In approving the new limits, the commission conducted no analysis on how Virginia will be impacted by the increase, the lawsuit contends.

“The Virginia Commission failed to develop a regulation using the required conservation and management measures, including prevention of overfishing; consideration of the best available scientific, economic, and biological data; equitable allocation to users; and rulemaking that is not for the sole purpose of economic allocation,” the lawsuit states. 

The second claim by the Chesapeake Legal Alliance stems from a 2020 law passed by the General Assembly that transferred oversight of the menhaden fishery from the legislature to VMRC. Following negotiations, Omega Protein secured a protection within the law that prohibited the VMRC from making regulatory changes for the menhaden fishery outside of the period from Oct. 1 to Dec. 31. 

VMRC approved the recent catch increase on Feb. 28.

“The Virginia Commission provided no justification for this out-of-time rulemaking, which is allowed only for the explicit statutory purpose ‘to ensure compliance with the Atlantic States Marine Fisheries Commission,’” the lawsuit states. ”Virginia harvest limits below the Atlantic Interstate plan do not fail to comply.”

The Maryland recreational fisher group says its members are harmed by the catch limit increase because it will detrimentally impact the striped bass population, which forage on menhaden.

Over the last decade, the group says it has “observed declines in the number and size of menhaden schools and a correlating steep decline in sport fish populations such as striped bass.” 

“This increases costs of sportfishing and degrades sportfishing and related activities,” the lawsuit argues. “With each fishing trip, The Fishermen have noticed their yields declining, which then requires more effort and cost for their personal enjoyment and businesses.”

Phil Zalesak, president of the Southern Maryland Recreational Fishing Organization, said in a statement that ignoring requirements has led to an overharvesting of menhaden that is “to the detriment of all species which depend on Atlantic menhaden for their survival. These species include striped bass (rockfish), bluefish, weakfish and osprey.” 

“Localized depletion of Atlantic menhaden in and around the Chesapeake Bay needs to end now,” Zalesak said.

Omega Protein spokesperson Ben Landry said the company has no comment on the litigation, but stated, “We do believe it is important to note that the Atlantic menhaden population is healthy and sustainable, not overfished and overfishing is not occurring.” 

A 2022 update on the status of the menhaden population by the ASMFC found “overfishing is not occurring and the stock is not overfished.”

The Virginia Saltwater Sportfishing Association is not part of the lawsuit, but president Steve Atkinson said his group supports it.

“We believe too many of these fish are being removed from the Bay, which is impacting the ecosystem and many important recreational fish,” Atkinson said. 

Victoria LaCivita, a spokesperson for Attorney General Jason Miyares, declined to comment on the pending litigation.