Lawsuit by Maryland group challenging Virginia’s menhaden management can continue

In an article in the Bay Journal by Timothy B. Wheeler, a Virginia judge has refused to throw out a lawsuit brought by a Maryland anglers group challenging the state’s management of large-scale commercial fishing for menhaden.

In a split verdict following a Sept. 7 hearing, Richmond City Circuit Court Judge Richard B. Campbell granted the Virginia Marine Resources Commission’s motion to dismiss one of the lawsuit’s two claims: that the commission failed to adopt its regulations in the legally prescribed time.

But the judge denied the state’s motion to dismiss the fishing group’s other claim, that the commission had violated Virginia law in deciding to permit an increase in commercial menhaden harvest from the Chesapeake Bay. The judge ruled that the Southern Maryland Recreational Fishing Organization, which filed the suit, had “sufficiently pleaded facts upon which relief can be granted.” That means the case can go forward.

The group filed the suit in May, challenging the commission’s decision two months earlier to raise the allowable harvest of menhaden by a little less than 50 million pounds. The commission did so to match an increase in catch permitted coastwide by the Atlantic States Marine Fisheries Commission after a scientific assessment determined menhaden were not being overfished.

Commercial harvest of the small, oily fish has long been controversial, especially in the Bay, a prime nursery area for the coastal stock. Conservation groups contend a fishing fleet operated by Omega Protein out of Reedville, VA, which processes menhaden into animal feed and nutritional supplements, leaves too few of the forage fish in the water to support striped bass and a variety of other creatures that feed on them. Native Americans reportedly commercially harvested the fish long before European settlers arrived, using it to fertilize their corn crops.

The Chesapeake Legal Alliance, the nonprofit law firm representing the Maryland anglers, contends that the commission abrogated its duty to conserve the menhaden population. The alliance argues that it ignored a state law requiring it to base its decisions on the best available science, among other factors.