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Post date: July 24 2009

Attorney General Cuomo Escalates Fight To Overturn Illegal Fluke Regulations That Burden New York's Anglers And Threaten State's Recreational Fishing Industry

NEW YORK, NY (July 24, 2009) – Attorney General Andrew M. Cuomo today announced a second lawsuit against the federal Department of Commerce (DOC) and the Atlantic States Marine Fisheries Commission (ASMFC) for violating federal law in adopting 2009 limits on recreational catches of summer flounder – commonly referred to as “fluke.”  The suit – which follows on the heels of a similar, pending suit brought last year – escalates Cuomo’s fight against regulations that harm New York’s anglers and recreational fishing industry, without benefiting the long-term health of these popular sport fish. 

“New York’s fishing industry is drowning under the weight of arbitrary and ineffective fluke regulations,” said Attorney General Cuomo.  “By relying on indisputably obsolete science, the federal government and the Atlantic States Marine Fisheries Commission are subjecting New York to limits that not only discriminate against New York anglers, but fail to properly protect the fishery.  Today’s lawsuit escalates the fight to protect New York’s recreational anglers and fishing industry against discriminatory and illegal regulations.”

Each year, the DOC – through the National Marine Fisheries Service (NMFS) and the ASMFC – sets limits on size, daily catch, and fishing season length for recreational catches for the fluke fishery, which stretches from North Carolina to Massachusetts.  The ASMFC determines the limits for state waters out to 3 miles, while the NMFS sets limits for federal waters from 3 to 200 miles.  The regulations could affect the entire fishery, or there could be different “state-by-state” regulations.  If the state-by-state approach is chosen, federal law and the ASMFC rules require that all states are treated fairly.

On June 24, 2009, the NMFS adopted state-by-state limits for regulating summer flounder catches in federal waters for the 2009 recreational fishing season, which had been approved by the ASMFC.  The suit announced by the Attorney General today charges that these new regulations illegally discriminate against New York anglers, subjecting them to far more stringent limits than any other state, including neighboring states.  For example, an angler based on the New York side of Raritan Bay can land a maximum of two fluke per day that must reach 21 inches, over a 78-day season.  In contrast, an angler based on the New Jersey side of the Bay, fishing for essentially the same fish, can land up to six fluke per day that only have to be 18 inches long, over a 101-day season.

Cuomo’s suit further charges that the 2009 regulations are based on one year of inaccurate – and indisputably obsolete – data from a single survey of potential anglers conducted in 1998.  Substantial changes to the fluke population, including the movement of more of the stock to New York waters resulting in more fluke fishing in these waters, have occurred over the past decade, yet the ASMFC and the NMFS both continue to rely on this 1998 survey as the basis of their limits.  Moreover, the state-by-state regulatory approach has consistently failed to protect the recreational fluke population from overfishing – the ultimate goal of the regulations.  

Today’s lawsuit is the second action that Cuomo has taken to overturn illegal recreational catch limits on fluke.  Last year, the Attorney General brought a similar lawsuit against the DOC over state-by-state recreational fluke limits that were adopted for the 2008 fishing season.  That suit argued that the state-by-state limits, which subjected New York anglers to the strictest catch limits of any state, illegally discriminated against New York, were based on outdated and unsound science, and provided no demonstrable benefit to the long-term health of these popular sport fish. 

The lawsuit filed today seeks to invalidate the 2009 recreational fishing regulations for fluke.  Both this suit and the one filed by Cuomo last year seek to direct the NMFS to adopt the alternative “coastwide” approach for managing recreational catches of the species.  Both suits were filed in the United States District Court for the Eastern District of New York, where last year’s case is currently moving forward. 

Department of Environmental Conservation Commissioner Pete Grannis said, “New York State and more importantly, New York’s recreational and commercial fishing industry continues to be unfairly penalized by a quota system that sets arbitrary limits and does not reflect improvements being witnessed in the fluke population.  Today’s lawsuit continues DEC’s efforts to change the system and seek a science-based, uniform, coast-wide approach to fluke management that is fair to all anglers and protective of the species.”

Phil Curcio, General Counsel for United Boatmen of New York and the New York Fishing Tackle Trade Association said, “The state-by-state recreational fluke regulations are based on bad science – pure and simple.  As a result, New York’s anglers will continue to be discriminated against and our recreational fishing community will continue to be decimated.  We applaud Attorney General Cuomo for upping the ante in his fight against these unfair, out-dated, and illegal regulations on behalf of New York’s anglers and recreational fishing community.”

The suit is being handled by Assistant Attorney General Andrew Gershon under the supervision of Special Deputy Attorney General for Environmental Protection Katherine Kennedy.  The DEC’s Bureau of Marine Resources is assisting with this case.