Judge issues temporary restraining order in flounder closure lawsuit

Commercial groups win first round in struggle to keep flounder season open

A Carteret County judge on Wednesday imposed a temporary restraining order on the N.C. Marine Fisheries Commission’s decision to end flounder fishing on Oct. 16 for the remainder of 2016, in response to a lawsuit filed Sept. 23 by the N.C. Fisheries Association, Carteret County Fisherman’s association, and Carteret, Dare and Hyde counties.

John E. Nobles, Jr,. a Superior Court judge in Carteret County, ruled in favor of the plaintiffs, who are represented by his former law partner, Stevenson Weeks of Wheatly, Wheatly, Nobles and Weeks in Beaufort, scheduling a full hearing for Oct. 6 at 10 a.m. If another injunction or permanent restraining order is issued at that time, the commercial gill net and recreational seasons on flounder will not close. If Nobles rules against the plaintiffs, flounder fishing will close Oct. 16 and remain closed through Dec. 31.

The closure was part of a wide-ranging decision by the Commission to try and reduce the annual catch of summer flounder, the numbers of which have plummeted in recent years.The regulation changes were made as part of a supplement to the N.C. Division of Marine Fisheries’ fisheries management plan for southern flounder, which are generally found in inshore waters of less salinity than summer flounder, which prefer the higher-salinity waters of the ocean.

The lawsuit was specifically aimed at preventing the closure of commercial gill-net fishing, and it names the Secretary of the N.C. Department of Environmental Quality, the director of the N.C. Division of Marine Fisheries, and the eight members of the N.C. Marine Fisheries Commission as defendants. The 30-page complaint alleges that management measures adopted by the Commission were arbitrary and based on inadequate scientific data, using an abbreviated regulatory process and did so in violation of North Carolina Open Meetings laws.

The temporary restraining order only affects regulations going forward. Raising the commercial minimum size for flounder to 15 inches to match the recreational minimum size and increasing the minimum mesh size for anchored gill nets to 6 inches, implemented this past January, are still in effect.

The lawyer for the defendants, Phillip Reynolds, said that not all of the defendants had been served with the lawsuit before the Sept. 28 hearing.

In a press release from the N.C. Fisheries Association, a lobbying group representing commercial fishermen, board chairman Brent Fulcher and president Jerry Schill said they had no other choice than a lawsuit.

“Filing a lawsuit is the last resort for us. We testified many times last year before the Marine Fisheries Commission that using the supplement is the wrong approach and should be managed by a full-blown amendment that allows full public participation. Our advice was totally ignored,” Fulcher said.

“In my 29 years of involvement with these fisheries issues, this is only the second time that we filed litigation against the Division of Marine Fisheries. Fishermen must have confidence in the process for management to be successful, but with the Commission and the Division ignoring the law and even their own guidelines, we have no other option left,” Schill said.