Gov. Andrew M. Cuomo first threatened to sue over New...

Gov. Andrew M. Cuomo first threatened to sue over New York's low quota at an event in Montauk in 2013. Credit: Howard Schnapp

A federal judge has dismissed New York’s lawsuit seeking to challenge the state’s relatively small portion of the East Coast commercial fluke quota as a. congressman called for local fishermen to not comply with the restrictive allotment. 

With little fanfare, U.S. District Judge Sandra Feuerstein on July 30 issued an order dismissing the case, allowing the state 10 days to file a notice to reargue its claims by next April. Court records showed no such filing had been made. New York’s original complaint was filed Jan. 14. Gov. Andrew M. Cuomo first threatened to sue over New York’s low quota at an event in Montauk in 2013.

Meanwhile, Rep. Lee Zeldin (R-Shirley) on Friday recommended that New York commercial fishermen go out of compliance with the fluke quota system in what would be a clear signal to Washington of their frustration with the process. 

“New York State should formally enter into the non-compliance process and set its own quota," said Zeldin, citing a successful non-compliance effort in New Jersey last year. Zeldin said "all elected officials from every political party at all levels of government should be unified in that process to be successful …"

Fluke, also known as summer flounder, are not considered threatened or overfished, and this year’s quota for New York fishermen has recently been as high as 280 pounds a day before settling to the current 140 pounds daily. In past years it’s been as low as 50 pounds a day.

The federal government argued that New York fishery regulators already have pursued their case for a larger share of the fluke quota before two interstate bodies that allocate fish stocks — the Atlantic States Marine Fisheries Commission and the Mid-Atlantic Fisheries Management Council. Those bodies are “in the process of considering the relief sought by New York” — a process that’s ongoing, according to a July 8 motion by Assistant U.S. Attorney Vincent Lipari. He didn’t return a call seeking comment.

Dismissal of the suit is "a big loss, absolutely,” said Riverhead fisherman Phil Karlin, who trawls for fluke on Long Island Sound out of Mattituck. He’d been among dozens of local commercial fishermen urging the governor to sue for years. “We want our fair share of the quota,” he said.

New York regulators and fishermen have long claimed that fishermen here got a raw deal when the federal regulators in the mid-'80s divided up percentage shares of the quota for fluke, based largely on historic landings. While southern states such as North Carolina receive 27.4 percent of the fluke quota, New York received only 7.6 percent, reportedly because of a lack of documentation to prove New York’s historic landings.

The unfairness of the rule is even more acute, New York has argued, because the fluke populations have largely migrated north as ocean temperatures have warmed.

Cuomo, in a statement issued after Newsday's report of the dismissal, said the state "will continue to challenge this unfair quota and explore every avenue to ensure that New York's access to summer flounder is consistent with national standards and our state's fishing industry can continue to thrive."

He called the state's commercial fishing industry "a critical driver of our economy that has been held back by outdated federal restrictions for decades. The hardworking men and women of this industry deserve equitable treatment so they can succeed and grow their businesses and continue to boost their local economies."

Regulators’ 2019 rules for fluke shares are “arbitrary, capricious and contrary to law because they are not based on current data showing that the center of the summer flounder sock has shifted significantly northeast, to the waters off Long Island,” wrote Channing Wistar-Jones, a state assistant attorney general.

A spokeswoman for the DEC didn’t immediately provide a comment on the judge’s ruling, and a spokesman for U.S. Secretary of Commerce Wilbur Ross, who was named as a defendant in the suit along with the National Oceanic and Atmospheric Administration and other agencies, declined to comment.

Even while New York has argued that its 7.6 percent of the fluke quota is unfair, decisions by the fisheries management council have increased the overall amount of fish each of the states can harvest.

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