Just over 43 years ago, in October 1981, the Atlantic States Marine Fisheries Commission (ASMFC) released a document designated Fisheries Management Report No. 1 of the ATLANTIC STATES MARINE FISHERIES COMMISSION.

It was 329 pages long and extremely well researched. Its title page declared it to be the “Interstate Fisheries Management Plan for the Striped Bass of the Atlantic Coast from Maine to North Carolina,” noted that it was “Prepared by the State of Maryland Department of Natural Resources, Tidal Fisheries Division as part of the Interstate Fisheries Management Program administered by the Atlantic States Marine Fisheries Commission,” and revealed that “Funds provided by Northeast Region, National Marine Fisheries Service, National Oceanic and Atmospheric Administration under Cooperative Agreement number NA-80-FA-00017.”

It was the first fishery management plan ever drafted by the ASMFC.

And, from a practical perspective, it was just about useless.

That’s not because the information in the report was invalid. The document presented a comprehensive overview of the striped bass fishery, which ranged from the natural history of the stock to a detailed description of the existing commercial and recreational striped bass fisheries.

The problem was that, having produced a striped bass fishery management plan, the ASMFC had absolutely no authority to put that plan to use. At that time, the ASMFC was little more that an interstate debating society, that could perform research and suggest management actions, but lacked the authority to actually manage coastal fisheries.

And that was bad for the striped bass since, in 1981, the stock had collapsed and few young fish were recruiting into the population, but management authority was still in the hands of the coastal states, which seemed more interested in protecting their fishermen’s short-term cash flow than in adopting effective measures to conserve the striped bass.

That all changed in 1984 with the passage of the Atlantic Striped Bass Conservation Act, which, for the first time, gave the ASMFC the legal authority to compel member states to adopt its striped bass management plan. States that refused would risk having a moratorium imposed on their fishery by the federal government. With that law in place, the ASMFC soon adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass, a measure that severely restricted striped bass landings throughout the stock’s range, and paved the way for the stock to fully recover from its collapse.

In 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Coastal Fisheries Act) which extended the ASMFC’s authority to adopt legally binding fishery management plans to all of the species within its jurisdiction, and so establish consistent management measures along the entire East Coast.

For nearly a quarter-century, the ASMFC’s management authority was never successfully challenged. While its management actions weren’t always popular, and some states delayed adopting them, the threat of a federal moratorium that wouldn’t merely restrict the regulated fishery, but instead shut it down entirely, soon caused states to come into compliance.

But that, too, changed. In 2017, New Jersey’s then-Governor Chris Christie leveraged his relationship with the new Trump administration and convinced the newly-appointed Commerce Secretary, Wilbur Ross, to excuse New Jersey’s decision to go out of compliance with the ASMFC’s summer flounder management plan.

That was the first time that a Commerce Secretary failed to support the ASMFC, after the ASMFC had found a state to be out of compliance with one of its management plans. But there are some worrying signs that the ASMFC might be facing similar challenges in 2025.

Last March, two fishing industry groups, the Delmarva Fisheries Association and the Maryland Charter Boat Association, sued the ASMFC. In a complaint that contained multiple legal and factual errors, the plaintiff groups claimed that a recent addendum to its striped bass management plan constituted an illegal “regulatory taking” of property pursuant to the Fifth Amendment to the United States Constitution, and deprived the plaintiffs of “of their rights to property and livelihood” without due process of law and in violation of the Constitution’s Fourteenth Amendment. Plaintiffs asked the trial court to grant a preliminary injunction that would prevent the addendum’s new management measures from going into effect.

The trial court refused to grant the injunction, deciding that the plaintiffs failed to demonstrate that they were likely to prevail in the lawsuit, and didn’t prove that they were likely to suffer irreparable injury if the injunction was denied, that the balance of equities in the matter favored the plaintiffs, or that granting the requested injunction was in the public interest, which are all criteria that must be established before a preliminary injunction may be issued.

Plaintiffs appealed the trial court’s decision. The appellate court’s decision hasn’t yet been released, but after judges began making comments like “Isn’t this regulation intended to save and preserve the striped bass? If you take that at face value, then without this, the striped bass could become extinct, and your client would lose 100% of its business,” it appeared likely that the trial court’s ruling would be upheld.

But the courts aren’t where the real challenge to the ASMFC lies.

Capt. Rob Newberry, the chairman of the Delmarva Fisheries Association, is urging the state to withdraw from the ASMFC, effectively turning the clock back to 1983, when Maryland could still manage its state-waters fisheries without any regard for the views or the interests of its neighboring states, or the coastwide needs of the striped bass resource. While Michael Luisi, an associate director of the Maryland Department of Natural Resources’ Fishing and Boating Services, has said that “the stakes would be too high” to justify such action, has recognized the need for interstate cooperation, and has provided assurances that Maryland has no such plans to withdraw, the mere fact that some stakeholders are urging such action is worrisome.

It is even more worrisome that other states, which have long supported the ASMFC process, are expressing their intention to remain part of the organization, but to go out of compliance with one of its management plans, in this case, the updated fishery management plan for American lobster.

Addendum XXVII to Amendment 3 to the Interstate Fishery Management Plan for American Lobster (Addendum XXVII) established “a trigger mechanism to automatically implement management measures to provide additional protection of the Gulf of Maine/Georges Bank…spawning stock biomass. Under Addendum XXVII, changes to gauge and escape vent sizes in [specified] Lobster Conservation Areas…would be initiated based on an observed decline in recruit abundance indices of 35% from the reference level equal to the three-year average from 2016 to 2018).”

When Addendum XXVII was adopted in May 2023, the ASMFC’s American Lobster Management Board (Lobster Board) assumed that it would be some time, if ever, before that trigger mechanism was tripped. However, in October 2023, the Atlantic Lobster Technical Committee determined that 2022 recruitment had already fallen beneath the 35% threshold, triggering the implementation of more restrictive management measures, which were scheduled to go into effect on June 1, 2024.

That finding caught both lobster fishermen and fishery managers by surprise; practical problems, not the least of which was providing fishermen with new measurement gauges that complied with Addendum XXVII’s changes to the size limit, forced the Lobster Board to delay the implementation date of the new management measures to January 1, 2025. In October 2024, the Lobster Board adopted Addendum XXI to Amendment 3 to the Interstate Fishery Management Plan for Atlantic Lobster (Addendum XXXI), which further delayed the implementation date to July 1, 2025, in order to provide more time for Canadian regulators to adopt similar regulations, and so not put New England lobster fishermen, who fish the same waters as the Canadians, at a competitive disadvantage.

States must now comply with Addendum XXXI’s July 1 deadline. However, two of the three affected states, Maine and New Hampshire, have signaled that they won’t do so.

New Hampshire has taken the more defiant stance, with Governor Kelly Ayotte writing a letter to the ASMFC that read, in part,

In case anyone had any doubts about Governor Ayotte’s intentions, she also posted an image to the social media website X that featured the image of a lobster along with the legend, “COME AND TAKE IT.”

Maine’s response to Addendum XXXI was far more restrained, but the outcome was about the same.

On January 9, 2025, Pat Keliher, the commissioner of Maine’s Department of Marine Resources, stood before a meeting filled with angry lobstermen and announced that “For now, I pull the rule [that would have kept Maine in compliance with the ASMFC’s lobster management plan]. I called up the governor on the way in and explained the risks of compliance [sic] with ASMFC. She agreed with me that we should pull the rule based on the input we got [at the meeting held] in Brewster [two nights earlier] and the input we got tonight.”

But, unlike Governor Ayotte, Commissioner Keliher did not engage in a show of defiance. Instead, he warned the Maine lobstermen that, despite their claims that the new management measures were unnecessary, “If [the ASMFC] say through a vote, that doesn’t matter, you’re out of compliance, they will send a letter to the secretary of commerce. The secretary reviews the letter, looks at all the science we will submit with that letter, and then the secretary of commerce will make a determination whether the fishery should be forced into compliance or be closed. That means no lobster exported out of the state of Maine. So that’s the risk we run. I’m just laying it out plain.”

That warning may have made at least some of the lobstermen uneasy, as one of the attendees at the January 9 meeting reportedly said, “I don’t think we’re asking you to go to the ASMFC saying we won’t do it. We’re saying we need to see the results of this [upcoming] stock assessment.”

If Maine or New Hampshire doesn’t adopt Addendum XXXI’s management measures by July 1, the Lobster Board, at its August 2025 meeting, could vote to find them out of compliance with ASMFC’s lobster management plan.

If the Lobster Board finds one or both states out of compliance, the matter would then be referred to the Interstate Fishery Management Program Policy Board (Policy Board). Should the Policy Board agree that Maine and/or New Hampshire is out of compliance, the Coastal Fisheries Act would require the ASMFC to notify the Secretary of Commerce and the Secretary of the Interior of its finding within 10 working days.

And that’s when things could get a little bit tricky.

According to the Coastal Fisheries Act,

The Coastal Fisheries Act also requires that, “Upon making a finding…that a State has failed to carry out its responsibility [to comply with and enforce a management plan] and that the measures it failed to implement and enforce are necessary for conservation, the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of the noncomplying State. The Secretary shall specify the moratorium’s effective date, which shall be any date within 6 months after declaration of the moratorium.”

While it would be nice to believe that the Secretary of Commerce’s decision would be objective and based solely on the facts presented by the ASMFC and the allegedly noncompliant state, politics can also play the deciding role. Before Commerce Secretary Wilbur Ross excused New Jersey’s noncompliance with the ASMFC’s summer flounder management plan, his office was heavily lobbied by members of the state’s congressional delegation and by the state’s then governor, Chris Christie, who was an early supporter of Donald Trump’s 2016 presidential bid. Given the strong scientific support for the ASMFC’s noncompliance finding, it was New Jersey’s political connections that probably carried the day.

While Maine’s Governor Janet Mills is a Democrat, and unlikely to garner any sympathy from the current Republican administration, New Hampshire Governor Kelly Ayotte is a Republican who might find a more receptive ear in Washington; that might explain the tone of her letter to the ASMFC which aggressively declared New Hampshire’s intent to go out of compliance with the lobster management plan. In addition, although Donald Trump didn’t win a single New England state, he was the favorite candidate of many commercial fishermen in the Northeast. That fact, too, could come into play in any secretarial decision.

After Secretary Ross excused New Jersey’s noncompliance in 2017, Douglas Grout of New Hampshire, then chair of the ASMFC, noted in a press release that

But, for the moment, such processes and possibilities are no longer a concern.

Members of the Lobster Board apparently didn’t want to take the chance that a new Secretary of Commerce might overturn a noncompliance finding. Perhaps they feared that any new secretarial decision to excuse noncompliance would fatally undermine the ASMFC’s ability to enforce the terms of its management plans, for on February 4, 2025 the Lobster Board approved a motion that read, “Move to initiate an addendum to repeal all gauge and [lobster trap escape] vent size changes in Addendum XXVII. The other sections of Addendum XXVII will remain in effect.”

A few members on the Lobster Board criticized the motion, on the grounds that other ASMFC management boards had enforced management plan provisions that some states, and some states’ fishermen, had strongly opposed. New Jersey’s legislative proxy, Adam Nowalsky, explained that he could not support the motion because

New Hampshire’s legislative proxy, Dennis Abbot, responded by asking,

Mr. Abbott was clearly not the only Lobster Board member who had such concerns.

Yet if the ASMFC doesn’t act to enforce its decisions out of fear of being overruled, it also encourages any state which disagrees with a management action to threaten noncompliance, or even a complete withdrawal from the ASMFC, in order to escape the burdens of a locally unpopular management measure. The members of the Lobster Board sit on other management boards as well, and so vote on issues affected other species; fisheries managers from Maryland and New Jersey both drew connections between Addendum XXVII’s impacts on Maine’s and New Hampshire’s lobstermen and the impact that striped bass management measures, which were supported by both Maine and New Hampshire, had on Maryland’s and New Jersey’s fishing industries.

The unspoken threat was that if Maine and New Hampshire are not expected to comply with the lobster management plan, then perhaps states such as Maryland and New Jersey should not be expected to comply with measures affecting their striped bass fisheries. Should such threat ever become explicit, the resulting race to the bottom could devastate inshore fisheries.

Thus, ASMFC finds itself on the horns of a dilemma, with any action it takes or refrains from taking having the potential to weaken its ability to manage inshore fish stocks.

And that’s not where the ASMFC needs to be. Instead, it must be able to rely on the Secretary of Commerce to cooperate, respect its decisions, and support its management processes. Hopefully that will occur, for while the ASMFC process is not perfect, and not without need of reforms, coastal fisheries management has come a long way in the three decades since the Coastal Fish Act became law, compared to the regulatory chaos that existed when each state was the sole arbiter of how fish were managed within that state’s waters.

Coastal fisheries would suffer if we went backwards now.

Top photo via Wikipedia/NOAA