Lupton, of Merritt, is a well-known recreational angler who invented the "Owen rig" that is credited with reducing deep hooksets of red drum; Shute is a veteran guide and owner of Atlantic Beach's Cape Lookout Fly Shop; and Goldsboro's Brown, an investment counseler and recreational angler, has been on NCMFC advisory committees for 11 years.
That the Commission voted to extend the commercial flounder season - without consulting the committee or following an already-established plan to manage southern flounder - was the straw that broke the camel's back, Brown said.
"For each one of us, a common thread was it became more apparent as time has passed the Commission was going to vote the way they wanted to regardless of science and law - especially the overfishing law," Brown said. "It made (us) finally throw up (our) hands and decide try to fight a different way."
Louis Daniel, director of the North Carolina Division of Marine Fisheries, agreed the Commission didn't act upon science. Daniel said his agency didn't recommend extending the netting season into December at November's meeting.
"The Division of Marine Fisheries recommended (the Commission) not extend the season for two reasons: the fishery is overfished and the state is in the midst of amending a fishery management plan that will likely entail stricter harvest limitations, and because such a decision could aggravate any attempts to negotiate with litigants who have served a notice of intent to file suit against the division regarding sea turtle takes in gill nets," Daniel said.
Yet the MFC voted 5-2 to extend the southern flounder season to Dec. 15.
The Karen Beasley Turtle Rehabilitation Center of Topsail Island notified the agency and Commission in October that it will file a federal lawsuit if those agencies don't take steps to protect endangered sea turtles from gill nets in North Carolina waters. The suit will be filed Dec. 18, if the Division of Marine Fisheries and the Commission don't craft a solution.
Without a remedy, the lawsuit will demand gill nets be removed from North Carolina waters.
Southern flounder (found mainly in inshore waters) have been overfished since 2001, according to N.C. Division of Marine Fisheries reports. They are also the fish that brings in the most money to commercial fishermen of all fish in North Carolina inshore waters.
The 1997 Fisheries Reform Act, passed by the state General Assembly, demands certain steps to cure overfishing.
"The rules are very clear," Brown said. "If you've got a species that is overfished, (overfishing) has to stop, and the state has 10 years to bring the stock back to a healthy point where it's not overfished."
Strategies can include shortening or closing seasons or increasing minimum-keeper size limits (so less fish are taken).
After four years of study, a DMF biologist and the advisory committee said in 2005 that the fall netting season should be closed from Nov. 1 to Dec. 31. But the Commission ignored that advice and allowed commercial netters to take flounder to the end of November.
In 2007, the Commission approved overfishing for southern flounder beyond Nov. 30, and continued the practice again with its Nov. 2009 vote. Both votes violated the Commission's approved southern flounder recovery plan.
"For the four years the (2005) plan has been in place, the (Commission) has gutted it twice because commercial fishermen said they had a bad year catching flounder," Brown said. "That shouldn't matter: If we set a season, you've got to leave it alone and give it a chance to work. The (prescribed) seasons are the core of the Fisheries Management Plan."
Brown said he has reviewed 10 years of commercial netters' trip-ticket reports, but the system is so lax the Commission doesn't use a catch-quota system to manage southern flounder.
"(DMF) can't do a (catch) quota, nor a dynamic quota, because the state doesn't require (fish) dealers to do real-time reporting," he said. "(DMF) told (the advisory committee) some years they don't get trip tickets until the first of April, and commercial (netters) catch 75 percent of all southern flounder."
The Commission's 2007 decision allowed an additional 90,000 pounds of flounder to be landed with gill and pound nets. Although the two-week extension granted in November 2009 allows only pound nets, experts believe an additional 20,000 pounds of flounder can be caught.
"It's the equivalent of losing about 10,000 fish from a plan we didn't think would work in the first place," Lupton said. "The members of the (advisory committee) could have been consulted, but nobody asked me a thing."
Brown said the latest Commission vote is part of a pattern he's observed that overturns advisory committee ideas. He has been on advisory committees since 1998.
"I was on the Shrimp Advisory Committee, but of the 15 members, 10 of them were (shrimp) trawlers or married to trawl owners," he said. "And the two 'recreational' seats went to people who trawled recreationally. So the deck was stacked from the beginning (as far as management votes were concerned)."
Brown said the shrimp committee did vote to put some areas off limits to shrimp trawls, but only after the committee's majority made sure no one trawled those areas.
He added that the wording of the Fisheries Reform Act that determines who is appointed to the Commission and advisory committees is the real problem.
"Nothing is going to happen (to change North Carolina coastal fishery management) until the wording of the Act is changed," Brown said. "There are good people on the committees on each side, but they're appointed according to whether they represent commercial, recreational or scientific interests. Each person represents a (special-interest) group, and that's how they vote.
"No one should be able to serve on the Commission if they have an economic interest in the harvest or sale of marine resources or sell products or services or for pleasure that deal with marine resources. And there are hundreds of people with that qualification, including the current (Chairman) chairman.
"We're never going to get changes at the (Commission) until we put the resources first in this state and not economic interests."
Brown pointed out that Lupton is a retired school teacher who taught commercial fishing in the Pamlico County school system while Shute does business with commercial fishermen in his area.
"They aren't just recreational or commercial guys," Brown said. "We resigned as a vote for the resource and for following the law."
Brown said he's worried overfishing of southern flounder could push that species down the same road as river herring.
The Commission allowed annual netting of collapsing herring stocks until the Atlantic States Marine Fisheries Commission threatened to take over management of that species. The Commission finally closed all harvests of herring, hoping to rebuild their numbers and keep control of management.
"(By resigning) we're just saying the MFC should pay attention to the law and the advisory committees," Brown said. "If they're not going to do that, we decided we were nothing more than window dressing and weren't going to be a part of it."