A judge from Raleigh on Thursday said he would issue a another temporary injunction prohibiting the Oct. 16-Dec. 31 closure of flounder fishing in North Carolina as part of a lawsuit filed by two commercial-fishing groups and three coastal counties.
Judge John Jolly Jr., a Superior Court special judge from Raleigh, ruled after a two-hour hearing in Carteret County, but the injunction was not filed by the end of business on Friday. When filed, it will remain in effect until further judicial hearings are scheduled on the suit.
The hearing was the second in a suit filed Sept. 23 by the N.C. Fisheries Association, Carteret County Fisherman’s Association, and Carteret, Dare and Hyde counties against the N.C. Division of Marine Fisheries, members of the N.C. Marine Fisheries Commission, and the secretary of the N.C. Department of Environmental Quality. At the first hearing, Judge John E. Nobles Jr. granted a temporary restraining order until the Oct. 6 hearing. A former law partner of Stevenson Weeks, the plaintiff’s lawyer, Nobles recused himself after the first hearing.
The 30-page complaint, which was amended on Sept. 30, alleges the management measures enacted by Commission were arbitrary and based on inadequate scientific data using an abbreviated regulatory process and done in violation of North Carolina open meetings laws. This litigation was specifically aimed at preventing closure of the large-mesh gill-net fishery, but will also prevent closure of the recreational flounder season.
Jolly’s ruling means the closures in the flounder fishery, scheduled to begin Oct. 16, will not take place. It also stopped the proposed reduction in harvest of flounder by pound-net fishermen and daily reports that were to be required of them. The minimum size limit of 15 inches, minimum mesh size of 6 inches, and escape panels that became effective on January 1, 2016 will remain in effect.
“It should be evident that there are real problems in the way the Marine Fisheries Commission is doing business,” said Jerry Schill, president of the NCFA. "Even though we did not prevail on the violation of open meetings law, it should be noted that it was due to the expiration of time and not the substance. The state did not dispute our allegation that the violations occurred, but that the time period for making a complaint had expired! Decisions by regulatory bodies such as the MFC must be based upon science and not agendas, and cannot, as ruled yesterday, be arbitrary and capricious.”
David Snead, executive director of the Coastal Conservation Association of North Carolina, said, "It's another sad day for fisheries management in North Carolina but not unexpected. Fisheries biology is not an exact science, and we have come to expect the NCFA to fight any science that indicates a species may be in trouble. They paint this as about keeping working families working, yet you would expect the fishermen that make a living from our public trust resources would be the ones that lead the fight to conserve them for future generations.
"It will be interesting to watch the reaction of the MFC in the wake of this lawsuit," Sneed said. "Will our state ever wake up to the need to put conservation ahead of greed when it comes to our public trust resources?"
Braxton Davis, director of the N.C. Division of Marine Fisheries and Sammy Corbett, chairman of the Marine Fisheries Commission, were contacted for comments regarding the litigation and injunction, but did not respond.