Virginia appears to be headed toward a showdown with the federal government over how many horseshoe crabs can be caught along the mid-Atlantic coast, an issue that may ultimately be decided in court.
On June 8, the Atlantic States Marine Fisheries Commission is expected to find Virginia out-of-compliance for failing to slash its harvest of the ancient sea creature from more than 1 million in 1998 to 152,495 this year.
The cut was to be effective May 1, but Virginia officials contend that the ASMFC lacked adequate data to set the catch limit. State officials are worried that the cut would devastate the state’s whelk fishery, which relies on horseshoe crabs for bait. Proponents of the cut are worried about the declining numbers of some migratory shorebirds that rely on the eggs of spawning horseshoe crabs, which are found in the spring on mid-Atlantic beaches, for food.
Virginia officials say state law requires that fishing regulations be based on the best available science. “Clearly, the 152,000 crab quota mandated by the ASMFC does not meet the standards the VMRC must follow,” the Virginia Marine Resources Commission said in a resolution adopted April 25. “Therefore, the agency’s counsel has advised that adoption of the ASMFC quota cannot be accomplished by regulation but must be implemented by legislation.”
The General Assembly won’t meet again until next year. In the meantime, the VMRC has set a quota of 710,000 crabs.
If the ASMFC finds Virginia out-of-compliance, it will have 10 days to notify U.S. Commerce Secretary William Daley. He would have 30 days to review the recommendation and take action. Under the law, he could close Virginia’s horseshoe crab fishery.
All sides agree that final action probably would not happen before late summer, and by that time Virginia would already have exceeded its ASMFC quota. As a result, any extra crabs caught could be subtracted from future allocations — potentially closing the state’s horseshoe crab fishery for years.
But such action by ASMFC and Daley could be ripe for a court challenge, observers say. In past years, Virginia has questioned the constitutionality of the 1993 federal law requiring all East Coast states to follow ASMFC fishery management plans or risk a federally enforced fishing moratorium. The ASMFC, a compact of all East Coast states, was formed in 1942 to cooperatively manage species that migrate across state boundaries.
Until the 1993 law — which gave the commerce secretary the authority to close fisheries that were out-of-compliance — states often ignored ASMFC management plans, leading to the overfishing of many fish stocks. The new law was patterned after earlier legislation aimed specifically at the striped bass management plan in the 1980s, which was credited with helping to restore depleted rockfish stocks.
Spurred by lawmakers who contended the federal government did not have the authority to enforce ASMFC fishery management plans, the Virginia General Assembly passed a bill in 1995 to withdraw from the commission, although that action was never taken.
Since the 1993 law, several states have been found out-of-compliance with fishery plans but none has ever been punished with a fishery closure. Instead, states were given more time to come into compliance, usually because the changes required actions by state legislatures that were not in session.
But ASMFC officials say that may not happen with Virginia because of the size of its violation. The ASMFC this year called for a coastwide cut of 25 percent from the average annual catch between 1995-97 of nearly 3 million crabs. That would limit this year’s catch to 2.27 million crabs coastwide. If Virginia exceeds its catch by 550,000 crabs, it would nearly offset the coastwide effort.
“Nothing of this magnitude has happened,” said Tina Berger, of the ASMFC.
The commission’s use of the 1995-97 baseline for measuring the cut hit Virginia hard because its catch didn’t begin growing until after 1997 — as other states began voluntarily reducing horseshoe crab catches, resulting in more being landed at Virginia docks.
Virginia averaged only 203,326 crabs from 1995-97, but that jumped to more than 1 million in 1998, before the state imposed its own restrictions. A cut from the 203,326 baseline would result in a cap of 152,495 crabs. Virginia has proposed a catch of 710,000 crabs this year, a cut of more than 25 percent from its peak harvest.
Virginia officials also note that several states are planning to catch less than their ASMFC-allocated quota. The commission could have maintained its coastwide cap, they say, and allowed greater landings in Virginia by having other states transfer unused quotas to Virginia — which relies of horseshoe crabs as bait in its $14-million-a-year whelk fishery. “Then, Virginia would not be in a position to not be totally devastated by such a draconian cut,” said Rob O’Reilly, the VMRC’s assistant chief of fisheries management. “But that was not in the cards.”
If there is a legal fight over horseshoe crabs, it would deal with a species for which almost everyone agrees has one of the poorest sets of information of any creature managed by ASMFC.
The commission acknowledges that the status of the coastwide stock “remains unknown.” An ASMFC scientific peer review this year found too little information to determine the population and reproduction of the current stock or the impact of current fishing pressure. The review did conclude that some local areas were probably suffering declines.
Concern about the stock has been mounting as harvest pressure on the crabs appears to have grown over the last decade. At the same time, environmentalists are worried that declining numbers of crabs would affect migrating shorebirds, which depend on horseshoe crab eggs for food when they stop at mid-Atlantic beaches during spring migration. Some crabs are also taken for medical research, although those are usually released after a portion of their blood is extracted. Because the crabs take years to reach maturity, some biologists worry they are being fished faster than they can reproduce.
Faced with those uncertainties, the ASMFC said reductions are needed to be “risk averse.” But Virginia officials say there is a lack of clear evidence that the stock is in trouble. “You like to have some basis to err on the side of the resource, or to be risk averse,” O’Reilly said. “In this case, the stock parameters are totally missing.”
Tom O’Connell, a biologist with the Maryland Department of Natural Resources who oversees the horseshoe crab issue for the ASMFC, acknowledged that none of the data available was “statistically valid to assess coastwide trends.”
But, he added, “one of the overwhelming conclusions is that of all of the data that is available, none of it shows an increase. All of it is indicating there are stable or declining trends. Because of that, and its relationship with migratory shorebirds, the ASMFC decided to take a risk-averse approach until more data can become available.”
To help assemble that data, New Jersey and Maryland have each chipped in $50,000 for horseshoe crab research, while Delaware has put up $25,000. The states are asking the U.S. Departments of Interior and Commerce to contribute matching amounts.
Virginia has not contributed to the fund and, O’Reilly said, “quite realistically, we wouldn’t know where to look for that amount of money, with the way our budget is.”
In any case, he added, the research will not resolve the immediate conflict because it will take years to gather information to make a valid assessment of the stock. “Even if we were able to come up with the $50,000, it wouldn’t be something that would address the current problems,” O’Reilly said. “However, it is needed. Everyone knows there is a need for that data and that information.”