Delaware Court OKs Harvest of Horseshoe Crabs

Published September 1, 2008

Environmental activist groups have no basis for challenging horseshoe crab harvesting guidelines enacted by the Delaware Department of Natural Resources and Environmental Control (DNREC), the Delaware Supreme Court has ruled.

DNREC had aligned state policy with a regional organization’s total moratorium on the harvesting of female horseshoe crabs. The policy also limits the harvest of male horseshoe crabs to 100,000 per year.

A group of five environmental activist groups had sought to force a total moratorium on the harvesting of horseshoe crabs of both sexes.

Rules Debated

Fishermen prize horseshoe crabs as bait for conchs and eels. Concerned with a recent decline in populations of horseshoe crabs and red knots (a migratory shore bird that feeds on horseshoe crab eggs) in and near Delaware Bay, the Atlantic States Marine Fisheries Commission (ASMFC) in June 2006 adopted a series of conservation measures for the crabs.

ASMFC imposed a total moratorium on the harvesting of female horseshoe crabs and a 100,000 per year limit on the harvesting of male horseshoe crabs. DNREC held hearings on whether the state should impose an additional moratorium on the harvesting of male horseshoe crabs.

Hearing Officer Roy Miller of the Delaware Division of Fish and Wildlife oversaw the hearings and issued a report to DNREC Secretary John Hughes. Based on evidence that the harvesting of 100,000 male horseshoe crabs each year would have little or no effect on the ability of females to reproduce, Miller recommended the state adopt no restrictions beyond those imposed by ASMFC.

Sought Moratorium

Despite Miller’s recommendation, Hughes adopted a complete moratorium on the harvesting of horseshoe crabs of both sexes. Fishermen then filed suit against DNREC under the Delaware Administrative Procedures Act, arguing Hughes’ decision did not have a rational basis and was thus invalid.

A Delaware Superior Court agreed with the fishermen and vacated Hughes’ decision. DNREC decided not to appeal the Superior Court ruling, but a group of five environmental activist groups sought to intervene and appeal on behalf of Hughes’ original decision.

The Superior Court denied the appeal, and the activist groups then appealed to the Delaware Supreme Court.

Issue Became Moot

According to the Delaware Supreme Court decision, the issue of the 2006 DNREC hearings and subsequent legal challenges had become moot. After the Superior Court vacated Hughes’ decision and DNREC issued emergency orders to adopt the ASMFC recommendation, DNREC engaged in a formal rulemaking process promulgating separate horseshoe crab regulations. The new regulations, which once again adopted the ASMFC recommendations, constituted a separate and new rulemaking process that superseded and rendered moot any objections to the Superior Court decision vacating Hughes’ decision and requiring the adoption of the prior rules.

The consistency between the new rules and the prior ones imposed after the Superior Court decision does not change the fact that the new rules constituted a separate rulemaking process that superseded the previous regulations, the state supreme court ruled.

Activists Remain Energized

Despite the Delaware Supreme Court’s decision, the activist groups opposing the current rules will have additional opportunities to argue for more-restrictive horseshoe crab harvesting regulations. DNREC’s current rules are set to expire later this year, after which new ones will be promulgated based on the latest and best scientific evidence.

The activist groups’ prospects of convincing DNREC to impose the sought-after total moratorium appear poor, however, as the latest population counts show the current rules are working. Since the current rules have been put in place, numbers have been increasing in all horseshoe crab populations in ocean waters near Delaware Bay, scientists from Virginia Tech University report. The number of spawning crabs has also been increasing since the current rules were enacted.

James M. Taylor ([email protected]) is a senior fellow of The Heartland Institute and managing editor of Environment & Climate News.

For more information …

Delaware Supreme Court decision, American Littoral Society, Inc. et al. v. Bernie’s Conchs, et al.: