by Tom Fote

(from Jersey Coast Anglers Association - December 1995 / January 1996 Newsletter)





On November 11, 1995, District Court Judge Dickinson R. Debevoise ruled that the original permit issued by the Army Corp. of Engineers on May 23, 1993 with the consent of the EPA region 2 to the Port Authority of New York and New Jersey was issued in violation of the Marine Protection Research and Sanctuaries Act and is therefore unlawful and invalid.

What does this mean? The permit that was issued that allowed millions of cubic yards of contaminated dredge spoil in the ocean should never have been issued according to current regulations. It is too late to get this contaminated material out of the ocean. But this ruling should have an effect on future requests and keeps this permit from being extended to cover additional dumping. The lawyers representing the Corp., EPA, Port Authority and the government all contended that it was not possible to extend this permit and no ruling was necessary. Our lawyers pointed out that companion regulations would have allowed the Corp. to grant an extension by request. This was another example of the Corp. selectively quoting regulations to suit their own purposes. Because of the earlier Appellate Court ruling requiring Judge Debevoise to review his decision and because of the continued misleading statements by the Corp., the Port Authority and EPA, our attorneys were able to make a successful case for overrule.

Does this victory guarantee that no further dumping of contaminated material in the ocean will take place? NO! The battle now moves into the regulatory process. The ruling only guaranteed that the Corp. and the Port must work within EPA’s existing regulations. There is already pressure on the EPA by the Corp. and the Port to amend the regulations to allow new permits to dump contaminated material in the ocean. The material doesn’t change, but if the regulations do, we will be told its safe and permits will be issued. This will effect permits for dredging throughout the United States. Clean Ocean Action and the Coastal Alliance will keep us informed about potential changes. We need to be ready to act immediately when necessary.

I must thank Clean Ocean Action for leading this battle and putting this lawsuit together. When other groups dropped out because they felt this suit was not a winner, JCAA stuck with Clean Ocean Action and supported their efforts. In particular I would like to thank Cindy Zipf. Cindy took a lot of heat about her determination to continue this lawsuit. It would have been much easier to accept the original ruling, sit on the sidelines and complain. That’s not Cindy’s style and that’s why she has won the respect of the fishermen and all of us who support protecting the environment. I would also like to thank Gordon Litwin and his firm for all their pro bono work and Susan Kennedy, the attorney for Clean Ocean Action and the Littoral Society. How great that Susan’s first case was a winner. If ever there was a David and Goliath situation it was the scene I saw when I walked into Judge Debevoise’s Newark courtroom. There must have been twenty attorneys representing the Corp., the Port, the EPA and the unions. The environmental community was represented by two, one a recent law school graduate. Money was beaten by hard work, talent and being right. This should confirm our belief that it is worth the effort to take on big money and big government. We can’t win every time but we will never win unless we are willing to take a risk and put in the effort. This has been a difficult year for those of us who care about the environment. Our current federal and state legislatures are not demonstrating a commitment to the environment. This victory is the best Christmas present.


At the last ASMFC meeting week, Public Hearing Draft FMP’s were approved for both weakfish and tautog. New Jersey will host public hearings on these draft FMP’s and they are tentatively scheduled for the last week in January or the first week in February. Watch the next newsletter for actual dates. These are important hearings, as they will decide how we manage these species in the coming years, so do your homework and well provide more information on these FMP’s in the next newsletter.

The Lobster Board met for the first time with their advisors and are proceeding with initial work on an FMP for these critters. Ed Bogart (201-226-4477) is the recreational advisor to the Lobster Advisory Committee from New Jersey. It is his job to represent recreational divers in plan development.


When the proposal was made to open the EEZ for striped bass fishing I thought it was premature and that the EEZ should remain closed for the reasons I stated in my testimony . I thought that there would be pressure from the recreational community to open it up but the commercial community in New Jersey would be neutral because it was of no benefit to them. Instead just the opposite took place. The recreational anglers were saying no and the commercial fisherman were pushing hard to open it up. It has become obvious from the concerted effort commercial fishing lobbyists in New Jersey who are pressuring to reopen the EEZ for the harvest of striped bass, that there must be something more on their agenda than just reopening a fishery for a species they are not permitted to sell by law. All the states adjacent to New Jersey require their commercial watermen to have tags for the striped bass they sell. Most state’s commercial quotas are already fully allocated to specific fishermen because of limited entry and a moratorium on new entrants into the fishery. So even if New Jersey netters were allowed a bycatch, there is no place they can land and sell them, even out-of-state.

Something is definitely up and it came out in the open during a conversation with a commercial fishing lobbyist after I testified before the House Fishery Subcommittee in Washington. We were discussing the problem New Jersey has enforcing its winter flounder regulations. The problems arose because of a lawsuit that permitted commercial fishermen to land winter flounder in New Jersey even though their state quotas were full and the season closed. The lawyers for the commercial fishermen argued that the fish were caught in the EEZ, which had no closed season, and they should be allowed to land them in New Jersey. This effectively prevented the state from prohibiting landings to enforce its quota.

The conversation got heated when we began discussing reopening the EEZ for striped bass. He made it known in no uncertain terms that once the EEZ is reopened, they will institute a lawsuit that will attempt to force the state to allow them to land striped bass in New Jersey to be shipped out-of-state for sale. The reason they think they might be able to get a judgment in their favor is because New Jersey does have a quota still listed as "commercial by ASMFC" that was used to establish the "Trophy Tag Program." This will effectively circumvent New Jersey’s "no sale" law and destroy the State’s "Trophy Tag Program". This is a prime example of trying to use lawyers, lawsuits and legal loopholes to deny the will of the people of this state. Through the legislature and the governor, the people have decided how they want their striped bass public resource to be utilized. If the fishermen of this state want to change the law to allow a return to commercial harvest and sale, they should use the democratic system that put the law in place and not try to bypass the system with legal maneuvering.

The hidden agenda is very clear to me now and I hope it becomes clear to JCAA members, recreational fishermen, commercial fishermen, fisheries managers and the public at large. The National Marine Fisheries Service must realize that by reopening the EEZ, they will create legal challenges that will damage the ability of individual states to manage the striped bass resource effectively. It could be used to set precedent in other fisheries that the states manage, also. It could destroy other state’s limited entry and tag systems and open their quotas to fishermen that have not historically landed in that state? There is already too much regulation by lawsuit and it can only get worse if fishermen feel it is a viable method to circumvent fisheries management strategies to rebuild stocks. This fishery must not be reopened until the NMFS can insure the integrity of state laws. This can be accomplished through an amendment to the Magnuson Act.

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