Delmarva Fisheries Association, Inc. v. Atlantic States Marine Fisheries Commission

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 4, 2025
• Docket: 24-1388
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1388

DELMARVA FISHERIES ASSOCIATION, INC.; MARYLAND CHARTER BOAT ASSOCIATION, INC.; BRIAN NESSPOR; KENNETH JEFFRIES, JR.,

Plaintiffs – Appellants,

v.

ATLANTIC STATES MARINE FISHERIES COMMISSION,

Defendant – Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, Senior District Judge. (1:24–cv–00688–RDB)

Argued: December 11, 2024 Decided: February 4, 2025

Before WYNN and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Judge Wynn wrote the opinion, in which Judge Thacker and Senior Judge Floyd joined.

ARGUED: James J. Butera, MEEKS, BUTERA & ISRAEL PLLC, Washington, D.C., for Appellants. Sean H. Donahue, DONAHUE, GOLDBERG & HERZOG, Washington, D.C., for Appellee. ON BRIEF: Andrew C. Meehan, MACLEOD LAW GROUP, LLC, Chestertown, Maryland, for Appellants. Keri S. Davidson, DONAHUE, GOLDBERG & HERZOG, Washington, D.C., for Appellee. USCA4 Appeal: 24-1388 Doc: 35 Filed: 02/04/2025 Pg: 2 of 14

WYNN, Circuit Judge:

Plaintiffs, a group of charter-boat operators and trade associations operating in

Maryland, sued the Atlantic States Marine Fisheries Commission in federal district court

to enjoin the Commission’s striped-bass plan. The Commission, which was formed in 1942

pursuant to an interstate compact, recommends fishery management plans to its member

states. The court denied Plaintiffs’ motion for a preliminary injunction in part because it

found that Plaintiffs likely lacked standing to enjoin the plan.

We conclude that Plaintiffs lack standing because they are regulated by Maryland,

not by the Commission, and Plaintiffs made no allegation that enjoining the Commission’s

recommended plan would likely cause Maryland to rescind its own regulations. And even

if they had, they would have needed to bolster that allegation with specific reasons

supporting it, as Maryland adopted stricter measures than the plan called for.

Because Plaintiffs lack standing to pursue an injunction of the striped-bass plan—

which is the only relief they seek—we remand with instructions to dismiss the case.

I.

A.

The abundance of the Atlantic striped bass (also known as rockfish) once

“astonished the early [European] settlers in New England.” John C. Pearson, The Life

History of the Striped Bass, or Rockfish, Roccus Saxatilis (Walbaum), 49 Bull. Bureau

Fisheries 825, 825 (1938). In 1614, Captain John Smith wrote that he saw so many striped

bass in the Chesapeake Bay “that it seemed to me that one mighte go over their backs

drisho’d [dry-shoed].” Dick Russell, Striper Wars: An American Fish Story 13 (2005). In

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1623, the Plymouth settlers used their last boat and a single net to catch enough striped

bass to feed themselves through autumn. Id. at 14. Roger Williams recounted that the

Narragansett Indians called striped bass missuckeke-kequock, which meant “much fish” or

“great fish.” Id. at 13.

Despite the abundance of striped bass, colonial Americans recognized that their

supply was finite. Pearson, supra, at 825–26. In 1625, Massachusetts prohibited using any

bass as fertilizer—likely the first statutory conservation measure in colonial America. Id.

Anxiety regarding overfishing intensified in the nineteenth century. Robert B. Roosevelt

warned in 1870 that “the insatiable maw of the New York market” had seriously degraded

the striped-bass population. Russell, Striper Wars 16. His nephew, President Theodore

Roosevelt, fished for striped bass from the “bass stands” of Cuttyhunk Island,

Massachusetts, in the early 1900s but found that the fish’s population “had been reduced

to extremely low levels.” Id.

Motivated in part by the decline of the striped bass, the fourteen Atlantic coastal

states and Pennsylvania formed an interstate compact in 1940 to coordinate fishery

management measures. See Atlantic States Marine Fisheries Compact, Pub. L. No. 77-539,

ch. 283, 56 Stat. 267, 267 (1942) [hereinafter Compact], amended by Pub. L. No. 81-721,

64 Stat. 467 (1950). Congress approved the agreement via the Constitution’s Compact

Clause, and the Atlantic States Marine Fisheries Commission was created. Id.; see U.S.

Const. art. I, § 10, cl. 3.

The Commission, which is composed of three representatives per state, does not

regulate states or individuals; rather, it “recommend[s]” regulations to the compacting

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states. Compact, Art. IV, 56 Stat. 268. The Compact neither “limit[s] the powers of any

signatory state” nor prevents states from “imposing additional conditions” beyond the

Commission’s recommendations. Id. Art. IX, 56 Stat. 269. States may leave the

Commission for any reason by providing six months’ notice. Id. Art. XII, 56 Stat. 269.

Despite the Commission’s efforts, striped-bass populations continued to decline

throughout the twentieth century. Russell, Striper Wars 17–18. New power boats equipped

with radar and sonar caught swaths of striped bass, and recreational angling increased

exponentially in the 1970s. Id. In 1979, Congress ordered an emergency striped-bass

research survey, see Act of Nov. 16, 1979, Pub. L. 96-118, 93 Stat. 859, 860, which found

a precipitous decline in striped-bass survival in the preceding decade such that “too few

young survive to replace their parents,” U.S. Fish & Wildlife Serv., Dep’t of the Interior &

Nat’l Marine Fisheries Serv., Dep’t of Com., Emergency Striped Bass Research Study:

1981 Annual Report 11.

Concluding that striped-bass stocks “have been severely reduced,” Congress

strengthened the Commission’s hand in 1984 by enacting the Atlantic Striped Bass

Conservation Act, Pub. L. No. 98-613, § 2, 98 Stat. 3187, 3187 (1984) [hereinafter Bass

Act] (codified as amended at 16 U.S.C. § 5151 et seq.). The Bass Act created a federal

enforcement mechanism for Commission recommendations. Under the Bass Act, if the

Commission finds that a state failed to adopt measures consistent with its striped-bass

plans, it reports that finding to the Secretaries of Commerce and Interior. 16 U.S.C.

§ 5153(a), (c). If they agree with the Commission’s finding, the Secretaries must impose a

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moratorium on striped-bass fishing in that state’s waters until the state remedies its failure.

Id. §§ 5152(9), 5154(a). 1

This approach soon proved effective. The first Commission plan under the Bass Act

called for states to implement conservation measures such as minimum size limits. Atl.

States Marine Fisheries Comm’n, Fishery Management Report: Amendment 3 to the

Interstate Fishery Management Plan for the Atlantic Striped Bass (1985). Some states—

including Maryland—went further by imposing a total moratorium on striped-bass fishing.

Atl. States Marine Fisheries Comm’n, Forging Knowledge into Change 52 (2017). In 1995,

the Commission “declared coastal and Chesapeake Bay striped bass stocks restored.” Id.

at 53. “The resurgence of striped bass along the eastern coast of the U.S. is probably the

best example in the world of a species that was allowed to recoup through tough

management and an intelligent rebuilding plan.” Carl Safina, The World’s Imperiled Fish,

Sci. Am. Nov. 1995, at 46, 53.

B.

But striped bass were still not off the hook. The Commission’s 2019 benchmark

assessment found the striped-bass stock once again to be “overfished and experiencing

1 In 1993, Congress applied this approach to all other species of Atlantic fish. Atlantic Coastal Fisheries Cooperative Management Act, Pub. L. No. 103-206, 107 Stat. 2447 (1993) (codified as amended at 16 U.S.C. § 5101 et seq.). 5 USCA4 Appeal: 24-1388 Doc: 35 Filed: 02/04/2025 Pg: 6 of 14

overfishing.” 2 Atl. States Marine Fisheries Comm’n, Addendum VI to Amendment 6 to the

Atlantic Striped Bass Interstate Fishery Management Plan § 1.0 (2019).

So, in 2019, the Commission amended its striped-bass plan to rebuild populations

“no later than 2029,” and permitted the Striped Bass Management Board 3 to quickly amend

the plan further in response to future stock assessments. Atl. States Marine Fisheries

Comm’n, Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped

Bass §§ 4.4, 4.7 (2022). Striped-bass populations seemed to stabilize, and in 2021, the

Commission’s data indicated a “very high chance” of rebuilding striped-bass stocks to the

target level by 2029. Atl. States Marine Fisheries Comm’n, Addendum II to Amendment 7

to the Atlantic Striped Bass Interstate Fishery Management Plan for Atlantic Sea Bass

§ 2.2.2 [hereinafter Addendum II].

That changed in 2022 when the Commission found that recreational harvest of

striped bass had increased eighty-eight percent from the previous year (while commercial

removals remained steady). Id. § 2.2.1. The Commission’s new projections showed that,

without action, there was only a fifteen percent chance of rebuilding striped-bass stocks by

2029. Id. The Striped Bass Management Board undertook to amend the 2019 plan, using

the procedures contained in that plan. After holding fifteen public hearings and receiving

2 “Overfished” means that the stock of fish is currently below a sustainable level, while “experiencing overfishing” means that the rate of fishing is above a sustainable level. Atl. States Marine Fisheries Comm’n, Fisheries Science 101, https://asmfc.org/fisheries- science/fisheries-science-101 [https://perma.cc/QH8F-9D47]. 3 The Commission has a management board—essentially a subcommittee—for each species within its jurisdiction. Atl. States Marine Fisheries Comm’n, Interstate Fisheries Management Program Charter [hereinafter Charter] § 4. 6 USCA4 Appeal: 24-1388 Doc: 35 Filed: 02/04/2025 Pg: 7 of 14

2,832 written public comments, the Management Board promulgated Addendum II, the

target of this lawsuit. Atl. States Marine Fisheries Comm’n, Proceedings of the Atlantic

Striped Bass Management Board Meeting—January 2024, at 5 [hereinafter Board

Minutes].

Among other measures, Addendum II recommended limiting the customers of

Maryland charter boats to keeping one striped bass per day starting in 2024, down from

two. Addendum II § 3.1.1. Private boats and shore fishers were already subject to a one-

fish limit for striped bass, as were nearly all charter boats in states other than Maryland.

See Atl. States Marine Fisheries Comm’n, Review of the Interstate Fishery Management

Plan for Atlantic Striped Bass: 2022 Fishing Year 23–25 (2024).

One of Maryland’s three Commission representatives moved to delay the one-fish

limit for an additional year, and to instead “implement” the limit on January 1, 2025, “so

that our businesses can plan for the change that will be coming.” Board Minutes at 28, 30.

A representative from New Hampshire opposed the motion because “what we’re trying to

do here is to reduce the removals in 2024 by 14.5 percent,” but the Maryland

representative’s proposed solution “would have [only] an 11 percent reduction, and so it

doesn’t get us to where we need to be in 2024.” Id. at 29 (emphasis added). The motion

failed. Id. at 30. Maryland’s representatives then voted against including the one-fish limit

in Addendum II at all, but the limit was approved. Id. at 32. Finally, Maryland’s

representatives voted against Addendum II as a whole, but it was approved. Id. at 52.

Maryland’s representatives did not exercise their authority to appeal the one-fish

limit or Addendum II to the Commission. See Charter § 4(h). And—despite a request from

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Plaintiffs—Maryland’s Attorney General did not sue to enjoin the plan in court. Opening

Br. at 30–31; see New York v. Atl. States Marine Fisheries Comm’n, 609 F.3d 524, 536 (2d

Cir. 2010) (“[M]ember states may seek judicial relief to enforce rights under the

[Compact].”).

Following the Commission’s adoption of Addendum II, the Maryland Department

of Natural Resources quickly moved to implement emergency regulations in accordance

with the plan, including limiting the customers of charter boats to keeping one striped bass

per day. Maryland Enacts Striped Bass Emergency Regulations to Increase Protections for

the Spawning Population, Md. Dep’t of Nat. Res. (Feb. 9, 2024),

https://news.maryland.gov/dnr/2024/02/09/maryland-enacts-striped-bass-emergency-

regulations-to-increase-protections-for-the-spawning-population/ [https://perma.cc/F7BY

-RE5C]. Its proposed regulations also imposed additional measures beyond those required

by Addendum II, including cancelling the Spring 2024 striped-bass trophy-fishing season.

Id. The Department expressed concern that in 2023, “Maryland’s annual striped bass

young-of-year index, which tracks reproductive success, was 1.0, well below the long-term

average of 11.1.” Id. The Maryland General Assembly’s Joint Committee on

Administrative, Executive, and Legislative Review approved the emergency regulations.

Md. Code Regs. 08.02.15.09 (2024). The emergency regulations took effect on February

9, 2024, and lasted through June 15, 2024; the Department of Natural Resources

permanently adopted them on November 25, 2024. Id.

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C.

Plaintiffs are a fisheries trade association, a professional group of charter-boat

captains, and two individuals (a commercial fisherman and a charter-boat captain). In

March 2024, Plaintiffs sued the Commission in federal district court. Their complaint

brought due-process and takings claims under the federal Constitution and related claims

under the Maryland Constitution and 42 U.S.C. § 1983. Plaintiffs sought an “order and

judgment holding unlawful, enjoining, and setting aside [Addendum II].” J.A. 26. Soon

after, Plaintiffs moved for a preliminary injunction against Addendum II. They provided

declarations alleging serious economic harm, including that Addendum II is “the tipping

point that will unquestionably force good businesses to close their doors.” J.A. 60.

After a hearing, the district court denied Plaintiffs’ preliminary-injunction motion,

finding that Plaintiffs were unlikely to succeed on the merits of their claims. The court

primarily concluded that Plaintiffs likely lacked standing, as their alleged injuries were not

likely to be redressed by an injunction against Addendum II. The court found it

was “unlikely that enjoining the addendum will have any impact on Maryland’s decision

to enact regulations in conformity with the addendum.” Delmarva Fisheries Ass’n v. Atl.

States Marine Fisheries Comm’n, No. 24-cv-688, 2024 WL 1721066, at *3 (D. Md. Apr.

22, 2024).

The district court further concluded that, even if Plaintiffs had standing to sue, they

did not plausibly state a claim for relief. The court noted that “Addendum II was issued

after a thorough deliberative process in which the State of Maryland participated, and

Plaintiffs had notice and opportunity to comment on its measures.” Id. And it found it

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unlikely that Plaintiffs even had an available cause of action under Section 1983, “as the

Commission is not a ‘person’ within the meaning of the statute, it does not act under ‘color

of state law,’ and Congress did not intend to create a private remedy authorizing private

parties to bring federal court actions challenging the Commission’s fishery planning

decisions.” Id. (quoting 42 U.S.C. § 1983). The court therefore did not reach the other

preliminary-injunction factors.

Plaintiffs timely appealed.

II.

Although we have jurisdiction to review a district court’s denial of a preliminary

injunction under 28 U.S.C. § 1292(a)(1), we must first ask if Plaintiffs have standing to sue

at all. Adams Outdoor Advert. Ltd. P’ship v. Beaufort County, 105 F.4th 554, 565–66 (4th

Cir. 2024) (“Federal courts are required to ensure that they have jurisdiction and must

address standing problems even when the parties do not raise them.”).

The district court found that Plaintiffs failed to show it was likely that they had

standing, so the court denied their motion for preliminary injunction. We conclude that we

are required to go further: because Plaintiffs’ complaint fails to plausibly plead the

elements of standing, the federal courts lack jurisdiction to consider their request for a

preliminary injunction (or any other relief) at all, so we remand with instructions to dismiss.

If a plaintiff fails to plausibly allege the elements of standing in their complaint,

federal courts do not have jurisdiction over their claims. Bishop v. Bartlett, 575 F.3d 419,

424 (4th Cir. 2009) (“[T]he party invoking the jurisdiction of the court must include the

necessary factual allegations in the pleading, or else the case must be dismissed for lack of

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standing.” (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)));

see Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (“Where, as here, a case is at the

pleading stage, the plaintiff must clearly . . . allege facts demonstrating each element.”

(internal quotation marks omitted)). When we determine that the federal courts lack

jurisdiction over a matter, we must remand with instructions to dismiss—even when

reviewing a preliminary injunction. See, e.g., Gallanosa ex rel. Gallanosa v. United States,

785 F.2d 116, 121 (4th Cir. 1986) (“Because we find the Virginia district court lacked

jurisdiction, we vacate the entry of the preliminary injunction and remand with instructions

to dismiss the action.”). In such a case, we retain jurisdiction on appeal “merely for the

purpose of correcting the error of the lower court in entertaining the suit.” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (quotation marks omitted).

In contrast, when plaintiffs meet their burden to establish standing for purposes of

the pleading stage but fail to show a substantial likelihood of success on the merits—

including when they fail to show a substantial likelihood that they have standing—we

affirm the denial of the preliminary injunction but allow the case to progress as usual below,

rather than remanding with instructions to dismiss for lack of standing. See Elec. Priv. Info.

Ctr. v. U.S. Dep’t of Com., 928 F.3d 95, 104 (D.C. Cir. 2019) (explaining that it is

appropriate to affirm the denial of a preliminary injunction if a plaintiff fails to “establish[]

a substantial likelihood of standing” at the preliminary injunction stage, but that it is

appropriate to remand with instructions to dismiss if a plaintiff “cannot establish

standing as a matter of law” (internal quotation marks omitted)); see also Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach element [of standing] must be supported in the

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same way as any other matter on which the plaintiff bears the burden of proof, i.e., with

the manner and degree of evidence required at the successive stages of the litigation.”).

We conclude that Plaintiffs have not carried their burden to establish standing even

at the pleading stage, so we will vacate and remand for dismissal for lack of jurisdiction.

For a plaintiff to have standing to sue, Article III requires that they “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 338

(citing Lujan, 504 U.S. at 560–61). Here, Plaintiffs allege that “the consequence” of

Addendum II’s one-fish bag limit “will be to . . . reduce [charter boat’s] business revenue

by an estimated 50–65 percent.” J.A. 9. Plaintiffs maintain that the Commission

“coerc[ed]” Maryland into implementing its striped-bass regulations, which in turn injured

Plaintiffs. Opening Br. at 53. They ask for an order “holding unlawful, enjoining, and

setting aside” Addendum II. J.A. 26.

Plaintiffs sued the Commission, not Maryland. But they are regulated by Maryland,

not the Commission. 4 So, to have standing to enjoin the Commission’s actions, Plaintiffs

must show that doing so will change how Maryland regulates them. Where choices by an

“independent actor[]” are involved—here, the sovereign state of Maryland—Plaintiffs face

the “difficult” burden of showing how Maryland would respond if the Commission’s

4 Plaintiffs also argue, without support, that the Commission “directly regulate[s]” them. Opening Br. at 18. But the Commission “recommend[s]” regulations to states. Compact, Art. IV, 56 Stat. 268. It does not itself promulgate regulations or otherwise bind individuals. 12 USCA4 Appeal: 24-1388 Doc: 35 Filed: 02/04/2025 Pg: 13 of 14

Addendum II were enjoined. Lujan, 504 U.S. at 562. In other words, Plaintiffs must

plausibly allege that Maryland would likely rescind its one-fish limit on charter boats if the

district court enjoined Addendum II. They have not done so.

First, Plaintiffs’ allegation that the Commission coerced Maryland to enact the

regulations that are allegedly causing them harm is unpersuasive. Maryland voluntarily

entered the Commission and may withdraw for any reason. Compact, Art. XII, 56 Stat.

269. As the Commission has authority to recommend plans only to its “member states,”

Atl. States Marine Fisheries Comm’n, Rules and Regulations, Art. I § 2 (1942) (amended

2016), only member states are subject to Bass Act penalties for noncompliance with

Commission plans, see 16 U.S.C. §§ 5152–5154. And taking a step back, Maryland has

collaborated with the other states in the Commission for over eighty years to preserve

critical fisheries in the Chesapeake Bay and the Atlantic Ocean. As with any collaboration,

sometimes Maryland takes and sometimes it gives. But it would probably surprise

Maryland to hear that it has been coerced.

Second, even if Plaintiffs could establish that the Commission did “coerce”

Maryland to adopt the regulations, they would still need to plausibly allege that Maryland

would opt to rescind its duly enacted regulations if Addendum II were enjoined. When

Plaintiffs’ “asserted injury arises from” the Commission’s alleged coercion “of someone

else,” it becomes the “burden of the plaintiff to adduce facts showing that those choices

have been or will be made in such manner as to . . . permit redressability of injury.” Lujan,

504 U.S. at 562. But Plaintiffs fail to even allege that Maryland would likely repeal its

regulations if Addendum II were enjoined. And even if they had made that bare allegation,

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they would have needed to provide an explanation given that Maryland chose to adopt

regulations more stringent than Addendum II’s recommendations.

In sum, Plaintiffs have not plausibly alleged that Maryland is likely to repeal its

striped-bass regulations if Addendum II were to be enjoined. So Plaintiffs lack standing as

they have failed to plead facts showing that an injunction of Addendum II would likely

redress their injuries. Accordingly, we must instruct the district court to dismiss this case.

III.

Because Plaintiffs lack standing to sue the Commission, we vacate the district

court’s order denying the preliminary injunction and remand with instructions to dismiss

this action.

VACATED AND REMANDED WITH INSTRUCTIONS