SandBar 6:3, October, 2007

Horseshoe Crabs Up for Grabs
Bernie’s Conchs, LLC v. State, Division of Natural Resources & Environmental Control, 2007 Del. Super. LEXIS 158 (Del. Super. Ct. June 8, 2007).

Terra Bowling, J.D.

Regulations mandating a two-year moratorium on horseshoe crab harvesting are invalid, according to a Delaware superior court.

Background
The Department of Natural Resources and Environmental Control (Department) adopted the contested regulations to comply with an addendum from the Atlantic States Marine Fisheries Commission outlining the minimum level of restriction necessary for horseshoe crab harvesting regulations. The Depart­ ment held a public hearing and presented two options that would comply with the addendum. The first option was to institute a limited harvest and the second option was a complete moratorium. The Department ultimately adopted the moratorium. Bernie’s Conchs and Charles Auman (Bernie’s), who harvest horseshoe crabs in the Delaware Bay, filed suit under the Delaware Admin­ is­ tra­tive Procedures Act (APA) to have the regulations declared invalid.

Substantial Evidence
First, the court established the appropriate standard of review under the APA. The Department con­tended that the court should examine whe­ ther there was any reason to support the moratorium, but the court disagreed. The court agreed with Bernie’s that the correct standard was the substantial evidence test, which required the court to ensure that the Department’s findings were supported by substantial evidence and reasonable legal conclusions.
      Using the substantial evidence test, the court first found that the Depart­ ment offered no scientific studies to show that a limited harvest of male horseshoe crabs would be ex­ cessive. The court noted that testimony at the public hearing and reports presented to the Depart­ ment supported a conclusion that a male-only limited harvest of 100,000 crabs would have a minimal effect on the population. The court further concluded that the Depart­ ment did not explain or provide a rational basis to prefer the moratorium over a limited harvest.
      The court also determined that there was no reasonable basis to support the finding that egg availability would improve through a moratorium, rather than a limited, male-only harvest. The court reasoned that if a limited harvest of the crabs would have a minimal effect on the population, then the impact on egg availability would be minimal, as well.
      The Department argued that the red knot, a shorebird that depends on the availability of horseshoe crab eggs during migration, would be harmed by a limited harvest. Although the court recognized that the red knot population depends heavily on the eggs to fuel their migration, it noted that despite the increase in the horseshoe crab population and presumably the increase in eggs, the red knot population has continued to decline. The court felt that since the Department could not offer evidence about the impact of the limited harvest on the red knot population, its decision to implement a moratorium was speculative.
      The court also considered the economic impact of a moratorium. In deciding to enact the moratorium, the Department found that the harm to the horseshoe crab and the red knot population outweighed the economic harm to the fishermen who harvest the crabs. The court also rejected this argument, finding, again, that the Depart­ ment’s decision was not supported by substantial evidence.

Conclusion
Because the court found that the regulations did not have a rational basis in fact, it held that the regulations were invalid. The regulations were vacated.