HAS THE ASMFC GIVEN UP ON STRIPED BASS?

 

In Ann Kubler-Ross’ landmark book, On Death and Dying, she outlines what she called The Five Stages of Grief:  Denial, Anger, Bargaining, Depression, and then, finally, Acceptance that one’s condition is, in fact, terminal.

Yesterday, as I listened to the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board debate whether or not to adopt a 12% reduction in striped bass removals, in the hope of rebuilding the stock, I began thinking that it had finally reached the fifth stage of griefwith regard to the striped bass’ future.

Early on in the debate, Martin Gary, New York’s saltwater fisheries manager, asked a representative of the ASMFC’s Striped Bass Technical Committee to confirm that any chance the stock has to rebuild, as well as the future of the spawning stock biomass, largely hinges upon the three above-average year classes produced in 2014, 2015, and 2018. 

Apparently the big 2011 year class has been so reduced in size that it is no longer considered, while the next-oldest big year class, produced in 2003, is now more than 20 years old and largely removed from the population.  Given the poor Maryland juvenile abundance indices in the years since, it’s pretty clear that nothing much is coming up to replace the 2014s, 2015s, and 2018s as they yield to attrition from both natural and fishing mortality.

That bodes ill for the fishery, as the 2014s and 2015s have already grown out of the 28- to 31-inch coastal slot limit, while the average size of the 2018s suggest that at least half of them will be above 31 inches next year.

And while there are currently plenty of bass in the fishery to keep anglers’ rods bent for the next few years, and to keep commercial fishermen busy, what is currently a seven-year hole in the population structure, driven by the poorest seven years of striped bass recruitment ever recorded, guarantees that there will be few legal slot fish in the Chesapeake Bay next season, and few legal slot fish on the coast, beginning in 2027 and stretching out until at least 2032—and potentially stretching out indefinitely if recruitment doesn’t improve.

The Management Board was aware of those things when it sat down at the table yesterday morning. 

Mr. Gary observed that the biggest problem facing the Management Board wasn’t whether the stock will rebuild by 2029, but the lack of any strong—or even near-average—year class since 2018.  As he noted,

“The real problem is what lies ahead in the ‘30s.”

Doug Grout, the Governor’s Appointee from New Hampshire and a long-time advocate for striped bass conservation, advised that

“We need to make the public aware that things are going to get worse before they get better…If you think things are bad now, wait until the 2030s.”

And Michael Luisi, a Maryland fisheries manager who has often proved a formidable impediment to conservative striped bass management, spoke to the need of

“Managing the expectations of our fishermen during [this] time…The striped bass fishery may never be what it once was.”

Chris Batsavage, a North Carolina fisheries manager, was a little more vehement, recognizing that

“We’ve seen warning signs with this stock since 2011 or so…Doing nothing now just puts the slow motion train wreck on fast forward,”

a theme continued by Sarah Peake, the Legislative Proxy from Massachusetts, who warned,

“Hope is not a message…The light we’re seeing at the end of the tunnel is a locomotive…If we do nothing and take no action, the economic losses…will be unimaginable.”

So, there is no question that the state fisheries managers, and probably most of the other members of the Management Board, were fully aware of what was at stake when they began to consider what action to take on what would become Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

They had the choice of doing nothing, and letting striped bass-dependent businesses make what money they can  before a lack of striped bass brings everything to a crashing halt.  Or, they could impose a 12% reduction on the recreational and commercial fisheries, in the hope of rebuilding the stock and maybe averting bigger problems a decade from now, while knowing full well that, if recruitment stayed low, their best efforts would probably all be futile.

So, as befits someone in the final stage of grief, they seemed to accept the bass’ fate as inevitable, and chose to do nothing at all.

There were certainly arguments made that supported the status quo.

Comments, both from the public and from the Atlantic Striped Bass Advisory Panel, leaned toward the status quo, although the makeup of the Advisory Panel hardly reflected the demographics of the striped bass fishery as a whole, and did not really reflect public opinion.  And if the Marine Recreational Information Program data from March through June 2025, which showed substantially lower than expected catch and landings, was indicative of effort and landings for the rest of the year, and if effort and landings stayed at that level through 2029, it was far more likely than not that spawning stock biomass would actually be rebuilt to the target level by 2029 even without a mandated harvest reduction.

Plenty of Management Board members, many undoubtedly looking for a way to avoid a contentious debate over how and when to impose closed seasons on the recreational fishery, grasped at those facts to argue that a reduction in landings would cause unnecessary economic harm in both the commercial and recreational fisheries. 

John Clark, the Delaware fisheries manager, implicitly questioned the need to adhere to the management plan’s requirement that the stock be rebuilt within ten years, arguing for the status quo by saying,

“Ten years is not a lot of time biologically for the striped bass, they work on their own timeframe,”

then fell back on an old-time fisheries management mantra that, I had hoped, might have become obsolete and forgotten in this supposedly more informed and evolved age,

“Every striped bass that dies of old age is an economic loss to the fishery.”

Apparently, he believed, managers should try to assure that, at some point, fishermen catch them all.

Others were more modest in their comments, but still stressed economic considerations.

Mr. Gary noted that conservation, economics, and social impacts were all a part of fisheries management decisions, which was right as far as it went, but ignored the fact that, without any fish, the economic and social benefits equate to precisely zero.

David Sikorski, the Legislative Proxy for Maryland, made a similar pitch, supporting the position of his employer, the Coastal Conservation Association and saying that

“I don’t think that the biological risk is as great as the economic risk,”

before asking,

“What do we lose economically, what do we lose in our community?”

if the 12% reduction was imposed.

He then went on to note that

“This [striped bass] is the Atlantic Coast’s most important fish,”

apparently without thinking about how long that might remain true, given where the stock is probably heading.

But it was notable how, as the Management Board debated the motion of New Jersey’s Legislative Proxy, Adam Nowalsky, which read simply

“Move to adopt in Section 3.4 Option A Status Quo,”

most of the usual fire seemed drained from its members, who appeared resigned to just playing out their assigned roles until the inevitable end.

Mr. Gary tried to improve the situation somewhat, moving to amend Nowalsky’s motion with one which read,

“Move to amend to add ‘and establish a Work Group to develop a white paper that could inform a future management document.  The Work Group should include representation from all sectors in addition to scientists and managers.  The goal of this Work Group is to consider how to update the [fishery management plan’s] goals, objectives, and management of striped bass beyond 1929, in consideration of severely reduced reproductive success in the Chesapeake Bay.  The Work Group should utilize public comment, including that received during the Addendum III process to inform its research and management recommendations and work with the Benchmark [Stock Assessment Subcommittee] to incorporate ideas and deliver necessary data products.  Work Group discussions should include the following topics:

·        Review [biological reference points] and consider recruitment-sensitive, model-based approaches.

·        Formally review hatchery stocking as both a research tool and a management tool for striped bass w/cost analysis.

·        Evaluate the potential for other river systems to contribute to the coastal stock.

·        Explore drivers of recruitment success/failure in Chesapeake Bay, Delaware, and the Hudson in the light of changing climactic and environmental conditions, including potential impacts from invasive species.

·        Explore the reproductive contribution of large and small female fish and the implications of various size-based management tools.

·        Methods to address the discard mortality in the catch and release fishery.”

His intent seemed to be to make some sort of relevant information available to inform any management action that might be taken after the 2027 benchmark stock assessment is released, and maybe that will matter, but given that the terminal year of that assessment in 2025, and neither the impacts of the most recent year classes on the health of the spawning stock, nor any additional recruitment information, will be included in the assessment, it’s not clear that a majority of the Management Board will be much more inclined to adopt new conservation measures then than they were yesterday, although they might well be willing to liberalize the regulations already in place if they can find an excuse to do so.

Still, a few Management Board members were willing to at least try to take some kind of action at yesterday’s meeting; like a surgeon making every effort to keep her patient alive, Nicola Meserve, a Massachusetts fishery manager, made an impassioned effort to convince the Management Board to at least try to do something that might help the bass.

Saying that the striped bass was the “backbone” of the recreational fishery in the Northeast, admitting that she was “personally pessimistic” about the species’ future, and reminding the Management Board that they had made a commitment to the public in the management plan to recover the striped bass spawning stock biomass within ten years, she pointed to the declining trend in striped bass abundance, which had already fallen to the levels of the 1990s, and the “spotty availability” of bass along the coast. 

Ms. Meserve noted that while others felt more optimistic about the bass’ future, she didn’t share their optimism, and felt that managers would be better prepared for the future if they took action now.  Thus, she made a motion to amend Nowalsky’s main motion, replacing “Option A Status Quo” with language that favored Option B, a 12% reduction in both commercial and recreational removals.

Her motion was seconded by Dr. Jason McNamee, the Rhode Island fishery manager, who had stated earlier that

“Protecting these remaining spawners is becoming really, really important,”

and later, in response to Ms. Meserve’s comments about others’ optimism, observed that

“It is really risky to bank on that optimism and not take action now.”

Others, including Ms. Peake and Mr. Batsavage, also supported Ms. Meserve’s motion, but in the end, it only won the votes of five states—Maine, Massachusetts, Rhode Island, Connecticut, and North Carolina—while every other member of the Management Board voted against, assuring that no action will be taken to conserve the striped bass in 2026 and, in all likelihood, in 2027 as well.

The Management Board effectively accepted that the striped bass’ current problems are beyond its control, and that only the whims of nature can influence the fish’s fate.

Mr. Batsavage gave the bass’ eulogy at meeting’s end, declaring that

“We missed an opportunity, again, to slow down what we know is going to happen to this stock in the 2030s.”

And then, on a vote of 13 to one, with only North Carolina voting against, and the Rhode Island delegation unable to agree and so casting a “null” vote, Addendum III, sans any meaningful conservation measures, was officially adopted by the Management Board.

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When I first read On Death and Dying about forty years ago, to help me better understand and cope with the last months of a close family member, I never even impagined that I would use the same work to describe a fisheries management body’s approach to a living marine resource, yet in the case of striped bass, the parallels were too close to ignore.

First came Denial, in November 2011 when, despite a stock assessment update projecting that, regardless of recruitment, the striped bass stock would become overfished by 2017 if no management action was taken, the Management Board decided to stand pat and do nothing, with some saying that striped bass were still “a green light fishery,” and arguing that no action was needed because the management triggers in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass had not yet been triggered.

Next came Anger, at least among some, after the management triggers in Amendment 6 were finally tripped, but the Management Board failed to do what its own management plan said it “must,” and adopt a ten-year rebuilding plan.  Anger increased when the recreational fishery in the Chesapeake Bay, and particularly in Maryland, not only failed to achieve the 20.5% harvest reduction called for in Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan called for, but increased its landings by more than 50% and, in response, Maryland’s Luisi nevertheless called the Addendum IV a success, because

“When we see numbers, an increase in harvest of 58.4 percent in the Chesapeake Bay, it kind of leads, I think, board members to believe that Maryland and Virginia, Potomac River [Fisheries Commission] may not have contributed to the successful management.  I stress the word success…”

Some folks in coastal states didn’t like the fact that they were reducing their landings more than was necessary while the Chesapeake jurisdictions were allowed to increase harvest and ride on the coastal states’ coattails.  But none of the coastal states ever got angry enough to propose a measure to fix the problem.

So, after that, came the Bargaining, when several states—but mostly New Jersey and Maryland—used the concept of “conservation equivalency” to get around the most burdensome management measures in both Addendum IV and in Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, and thus condition their compliance with the Management Board’s decisions on their ability to adopt measures which allowed their fishermen advantages not enjoyed by fishermen in other states.

Then came Depression, not so much on the part of the Management Board as on the part of anglers who saw the striped bass stock begin to dwindle, while the Management Board lacked the will to take decisive action to turn the decline around.  Some Management Board members expressed the same frustration, but never managed to convince the majority to do what was needed to rebuild the stock.

Through all those four stages, the striped bass stock declined and then became overfished, with only ineffective half-measures proposed to solve its problems.

And now, Acceptance, on the part of the Management Board, and also of myself, at least to the point that I accept that I, who actively fished for striped bass before and then through the last stock collapse, may very well see the stock collapse for a second time; even if collapse is averted, I know and accept that, at my current age, I will never have the opportunity to know and enjoy a healthy striped bass stock again in my lifetime.

Although I accept that, I have to admit that it makes me a bit sad, and more than a bit angry, that the people charged with maintaining stock health have failed the bass, and me, and the rest of the bass fishermen in every state and in every sector, just as they failed us all with their inaction 45 years ago.

It is difficult to watch something that you’ve loved for a very long time as it dies.

ADDENDUM III: THE STRIPED BASS COULD LOSE THIS ROUND

 

The Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board will meet all day next Wednesday—October 29—to debate Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, and there’s probably at least a 50-50 chance that its decision won’t bode well for the resource.

I say that for a number of reasons.

The issue of closed seasons—something never imposed on the coastwide striped bass fishery before—has clouded the conservation debate, with many anglers seemingly more concerned with when and if they will be able to fish than whether they will have anything to fish for when they do.  The possibility of a “no-target” season, when even catch-and-release would be illegal, has proven to be a particular distraction.  Many of the comments sent in respect off Addendum III emphasize opposition to no-target closures over support for a reduction in striped bass landings.

And, at least in the second and third “waves” (March through June), both angler effort and catch has been far lower than expected.  In preparing the draft Addendum III, both the Striped Bass Technical Committee and the Plan Development Team assumed that recreational removals—the combination of landings and fish that died after release—would increase by 17% this year, due to the above-average 2018 year class growing into the coastwide 28- to 31-inch slot limit.  Instead, preliminary Marine Recreational Information Program data indicates that angler effort was down about 25% compared to 2024, while recreational catch fell even more, by about 48%.  It’s not hard to predict that some Management Board members are going to use those figures to argue that additional management measures will not be needed to get fishing mortality down enough to rebuild the stock by 2029, as the management plan requires.

Finally, the majority of the public comments received by the ASMFC support maintaining current regulations, and oppose the proposed 12% reduction.  That was somewhat surprising, given that in the case of other, recent management actions, most notably Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass, which was adopted in May 2022, and Addendum II to Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass, which was adopted in January 2024, more than 90% of all comments supported more restrictive management measures.

In total, 2,722 comments urged the Management Board to maintain the current management measures, while 1,775 asked that it impose a 12% reduction in both commercial quota and recreational removals.  Another 28 people felt that the commercial quota should not be reduced, but seemingly had no issues with imposing a reduction on the recreational fishery.

But those overall numbers are somewhat misleading.

When it came to individual comments, 330 people appeared at public hearings to oppose the 12% reduction; except in New Jersey, where angler opposition to the proposed conservation measures was high, most of those arguing for status quo were either commercial fishermen or members of the party and charter boat industry.  Only 81 hearing attendees supported the 12% cut.  However, individual letters were skewed in the other direction, with 1,175 individual letters opposing the 12% reduction, and 1,423 supporting it.

Adding all of the individual comments together, the public’s sentiments were almost perfectly split, with 1,505 individuals supporting the status quo, and 1,504 supporting the conservation measures.

However, members of the various sectors of the fishery responded in very different ways.  The summary prepared by Emilie Franke, the ASMFC’s Fishery Management Plan Coordinator for striped bass, notes that

“When possible, staff tracked individual comments on the reduction by sector/mode as self-identified by the commenter:  private recreational angler, for-hire, commercial.  Some commenters (19%) were part of other stakeholder groups or did not indicate their sector/mode.  Of those other/unidentified comments, 54% were in favor of status quo 46% in favor of a reduction.

“Of the identified private recreational anglers, 39% were in favor of status quo and 61% were in favor of a reduction.

“Of the identified for-hire, 73% were in favor of status quo and 27% were in favor of a reduction.

“Of the identified commercial, 97% were in favor of status quo and 3% were in favor of a reduction.”

However, when it came to form letters, petitions, and similar documents, 1,187 persons appear to be in opposition to any reduction in commercial quota or recreational removals, while just 249 were in support, and it were these form letters and multi-signature documents that skewed public comment so heavily toward the status quo side.

And it was just two such documents, a form letter prepared by the American Sportfishing Association and a somewhat mysterious—it’s hard to know what to call it—petition or set of sign-on sheets only identified by the ASMFC as “South Shore of Long Island Form Letter,” and by its originator(s) as “Striped Bass Status Quo Management Support Sheet (Addendum III), but identifying no preparator or originating organization, together accounting for 1,145 of the 1,187 form letter comments in favor of status quo.

The significant divergence of opinion, particularly within the recreational sector, along with the nature off the form letters, raises an interesting issue, of whether every comment should be given equal weight, or whether some consideration should be given to not only the level of thought and effort underlying the comments, but also to the contribution, in terms of effort expended and the social and economic benefits derived from the striped bass fishery.

As an example of the latter, for-hire vessels—party and charter boats combined—were responsible for about 1.42% of all directed striped bass trips in 2024.  Yet, at most of the public hearings, and certainly the hearing in New York, the for-hire industry accounted for most of the people in the room, even though, in New York, they represent an even smaller proportion of the fishery, making only 0.94% of all directed striped bass trips in 2024.  Despite their very small role in the recreational striped bass fishery (although it should be noted that for-hire landings, at more than 9% of all recreational harvest, are vastly disproportionate to for-hire effort), the various for-hire organizations did a very good job turning out their members at public hearings and inspiring their members to submit written comments; although no for-hire organization seems to have circulated a form letter for its members to use, the similarity of wording of many letters sent by for-hire operators (particularly in Massachusetts) makes it clear that the for-hire opposition to the proposed 12% reduction was well-coordinated.

The opposite is true of private recreational fishermen.  Although they were responsible for over 98% of all directed striped bass trips in 2024, and thus undoubtedly generated the lion’s share of the social and economic benefits accruing from the recreational striped bass fishery, private anglers were underrepresented at both the public hearings and in the written comments.

Thus, members of the Atlantic Striped Bass Management Board should give real thought to the question of whether the comments of for-hire operators should be given the same weight as those of private anglers, or whether some consideration should also be given to the importance of each mode within the recreational sector, and the weight given each comment balanced accordingly.

We face the same question with regard to form letters. 

At the December 16, 2024 Management Board meeting, Michael Waine, who speaks for the American Sportfishing Association with respect to East Coast matters, made depreciating comments with respect to the private anglers who had repeatedly supported needed conservation measures, saying

“…And I look at the public comments, and I know that there’s millions of striped bass anglers out there.  Millions.  And I’m only seeing twenty five hundred comments from a lot of the same people that we know have been commenting.”

He promised,

“And so, as an organization, we’re going to work with our members to try to get more people integrated into this process.  We know that the recreational fishery is very diverse, and I don’t feel the public comments really are a good reflection of that diversity…Don’t talk to the same folks that you’ve been talking to all the time.  Find the people who care about this resource and value it in a way that their voices should be heard, too.  And that’s what we’ll do as an organization ourselves.”

Waine was true to his word, using contacts in the tackle industry and the angling press to find recreational fishermen opposed to striped bass conservation measures, feed them a load of misleading, one-sided information, and direct them to a website that would allow them to send a form letter opposing the 12% reduction in removals to the ASMFC, which received 660 such form letters (with another 269 ASA form letters being tabulated as individual comments, because the senders didn’t settle for the original form, but enhance it with their own comments).

There was no organization with the reach and resources of the American Sportfishing Association that worked to gather comments of anglers who supported striped bass conservation measures.  Backcountry Hunters and Anglers, an organization of conservation-minded sportsmen with most of its membership in inland states, did its best, gathering 239 form letter comments. 

However, the only organization with both the capacity and the resources to mount a coastwide effort—and the one that, at one time, probably would have done so—the Coastal Conservation Association—long ago abandoned its former role as an advocate of striped bass conservation, and instead sided with the members of the tackle and boating industries that buy ads in its magazine and donate product to its fundraising auctions, joining in a letter with the American Sportfishing Association, Boat U.S., the Center for Sportfishing Policy, the National Marine Manufacturers Association, and the Marine Retailers Association of the Americas to oppose the 12% reduction and support the status quo (it’s probably notable that the only state CCA chapter to comment on the issue, CCA New Hampshire, split with the national organization and called for the 12% reduction in removals to be adopted; given the position of the national CCA office on striped bass, the most important recreational species in New England and the mid-Atlantic states, it’s difficult to understand why anyone living between Maine and Virginia would continue to keep paying membership dues).

So, again, a question arises for the Management Board.  How much weight ought it give the American Sportfishing Association form letter, when it knows that such letter was the product of a directed campaign, and that there was no similar campaign to support needed conservation measures.

The other big form letter—really, more like a petition or sign-on letter—raises questions of a very different sort.

The biggest ones are:  Who put the form together and distributed it?  Who are the people who signed it?  And, what are the signatories’ connections to the striped bass fishery.

There is no indication on the form as to who put it together.  As noted above, it is called a “Striped Bass Status Quo Management Support Sheet.”  It contains a list of four assertions which sound a lot like those made by the American Sportfishing Association, such as

“Status quo management is the most equitable option.  It will minimize further economic harm to businesses…”

“Anglers that prefer to harvest fish should not bear the overwhelming conservation burden when catch-and-release practices contribute to a significant portion of total mortality.”

And

“No-Target and No-Harvest options unnecessarily put anglers against each other creating a lose-lose scenario.”

So maybe the petition, sign-on letter, or whatever one wants to call it was an extension of the American Sportfishing Association campaign, promoted by one or more Long Island businesses.  But looking at the way the sheets were signed, and the number of individuals who identified themselves as coming not from the South Shore of Long Island, or anywhere else in New York, but instead from the neighboring states of Connecticut and New Jersey and, in a few cases, from states as far away as Georgia and Florida, my guess is that the signatures were gathered by one or more party boats that solicited their customers at some point during a trip.

And that’s fine, although the Management Board really ought to understand who those signatories are before taking the sign-on sheets at face value.  A lot of the signatures are completely illegible, and there is no indication that the folks who signed have any connection to the striped bass fishery.  After all, the deadline for submitting comments was October 3, and on one of the signature sheets, the first people to sign thought the column that read “STATE” said “DATE” instead, and wrote in dates of 9/19/25 and 9/20/25.  At that time, South Shore party boats were fishing for fluke (summer flounder) and black sea bass, not striped bass, which raises the question of whether the signatories were participants in the striped bass fishery at all, or whether they just signed the sheets because they were asked to, and had no well-considered opinions about the striped bass fishery, and Addendum III, at all.

Again, those are things that the Management Board ought to consider when looking at the public comment on Addendum III.

But just how many Management Board members will consider such things is impossible to predict.

The Management Board members who understand the plight of the stock, who are trying to minimize the chances that the stock will collapse once again, are going to vote their consciences, and vote for conservative management that will give the stock the best chance to rebuild, and even if rebuilding doesn’t occur, to maximize striped bass abundance until such time as more favorable spawning conditions occur.

And the Management Board members who serve as the voice of the commercial and for-hire fisheries, and perhaps or the tackle and boating industries as well, are going to oppose any additional management measures, in an effort to maximize the short-term profits of the commercial and recreational striped bass fisheries, even if the data and the scientific advice recommend a far different course.  Such individuals will sympathize with the charter boat captain who commented,

“I was concerned, as I listened to some members of the [Advisory] panel make their arguments, that they were under the impression that the board’s directive is to save the Striped Bass.  We are dealing with a species that has its own path regardless of human interaction.  Species will increase and decline, and also become extinct if they can’t adapt to changes in the environment.  Unfortunately, human interaction, both direct and indirect, has had an effect on the Striped Bass population.  It is the job of the ASMFC and the Mid Atlantic Council to be management boards.  It is their job to MANAGE the striped bass stock in order to give the greatest access, while balancing the health of the SSB with the socio economic impact of reducing mortality.  We are managing, not saving!”

 

Thus, the outcome of Addendum III is going to depend on the Management Board members who sit somewhere in the middle, those inconsistent advocates who sometimes support conservation measures and sometimes oppose them out of concern for their impacts on the recreational and/or commercial fishing industries.

How they consider the debate over the timing of seasons and the question of no-target versus no-harvest closures, how much they are concerned about the future of the striped bass in the face of continuing low recruitment, how willing they are to believe that lower recreational catch and effort will lessen the need for management action, and how they value the public comment will ultimately decide whether the centerpiece of the draft Addendum III, the 12% reduction in removals, is adopted by the Management Board.

Right now, as I consider past debates and look at the positions that have been previously taken by members of the Management Board, I believe that the question of whether fishing mortality will be reduced, or whether current management measures will remain in place, will be decided by a very narrow vote.

And as I consider the outcome of that vote, I find that I can’t predict whether the Management Board will rise to the occasion, and take action to conserve the striped bass resource, or whether it will take shelter in the current uncertainty, and maintain the status quo.

The striped bass may very well lose, and find themselves on an increasingly perilous road, where stock collapse becomes an ever more likely destination.

And at this point, there is little that anyone can do to change the outcome.  We can only wait until next Wednesday, and see whether wisdom or mindless profligacy prevails.

FEDERAL COURT HEARS ARGUMENTS IN CASE CHALLENGING STRIPED BASS MANAGEMENT

 

On Tuesday, October 21, a federal district court in Washington, D.C. heard arguments in the matter of Cape Cod Charter Boat Association v. Burgum, an action brought to challenge Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass and, more generally, to challenge the Atlantic States Marine Fisheries Commission’s authority to manage the striped bass resource.

The lawsuit is the spiritual successor to an earlier action, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, which was ignominiously tossed out of court by the United States Court of Appeals for the Fourth Circuit, which found that the plaintiffs, Delmarva Fisheries and the Maryland Charter Boat Association, lacked the standing to bring an action against the ASMFC, as the regulations that supposedly harmed their businesses were actually drafted by the State of Maryland, and not the ASMFC.

Last spring, having been thwarted by the Fourth Circuit, the two original plaintiffs returned with a handful of allies—the Cape Cod Charter Boat Association, the Connecticut Charter and Party Boat Association, and the Montauk Boatmen and Captains Association—to try again, this time naming not only the ASMFC, but all of its member jurisdictions, including the National Oceanic and Atmospheric Administration, the Department of Commerce, the Department of the Interior, the United States Fish and Wildlife Service and many others—originally, 55 defendants in all—while making essentially the same arguments that were made in the Delmarva case.

The similarity of the two arguments is probably not surprising, given that the same attorney, James Butera, of the Washington, D.C. law firm of Meeks Butera & Israel, argued both matters.

Nor, given the outcome of the Delmarva case, is it surprising that the defendants again moved to dismiss the matter, with standing a paramount reason to do so.

So, on October 21, the plaintiffs were given an opportunity to convince the judge why the Cape Cod Charter Boat Association case should not be dismissed, as well.

It so happened that there was a telephone number that members of the public could call if they wanted to listen in, I had some free time that morning, and as an attorney, I was interested in hearing the arguments as they were made.  As usual, the proceeding began a few minutes late, but when the judge, Judge Trevor N. McFadden, began, things started to move pretty quickly, and in what seemed to be a promising direction.

After asking all of the attorneys to introduce themselves, he noted that Mr. Butera, plaintiff’s counsel, would make his arguments first, followed by any of defendants’ counsels who wished to speak, with counsel for Maryland (who was also representing all of the more northerly states, that stretched from Maine to Pennsylvania and Delaware) going first because, despite the new defendants, Maryland and Maryland’s striped bass regulations were still the focus of the lawsuit.  Plaintiffs’ attorney would then make his closing remarks.

Before plaintiffs’ counsel could begin his arguments, Judge McFadden noted that

“Defense has raised some serious dismissal issues,”

particularly with regard to plaintiffs’ standing to sue, which Mr. Butera ought to address.

Mr. Butera began by challenging the ASMFC’s authority to manage striped bass pursuant to the Atlantic Striped Bass Conservation Act and the Atlantic Coastal Fisheries Cooperative Management Act on Constitutional grounds, claiming that those laws illegally and unconstitutionally coerced the states

“into requiring or prohibiting acts within their own commerce powers”

and also claiming that the states’ and Congress’ failure to re-ratify the interstate compact creating the ASMFC after the passage of both the Striped Bass act and the Atlantic Coastal Fisheries act was an error of Constitutional proportions that invalidated the ASMFC’s presumed management authority.

At that point, Mr. Butera detoured away from his Constitutional arguments, to make some dubious factual claims, alleging that no scientist claims that there is any issue with the health of the striped bass stock—an argument easily rebutted with a simple reference to the 2024 stock assessment update—and quoting an unnamed former member of the ASMFC’s Atlantic Striped Bass Management Board, who reputedly said that striped bass

“fishing has never been better.”

He also claimed that 50 Maryland charter boat operations went out of business as a result of Addendum II, which allegedly caused business to drop by 75%, and warned that Addendum III toAmendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass would be debated on October 29, implying that a ruling in his favor was needed to prevent Addendum III from further harming to his clients.

Judge McFadden quickly steered Mr. Butera back toward the pertinent legal issues, asking him who should, in his view, manage the striped bass fishery, a question that caused Mr. Butera to revert to his original assertion that striped bass management was

“illegally delegated to the states,”

and that bass management should be governed by the Magnuson-Stevens Fishery Conservation and Management Act which was where he alleged that all management authority resided, but since then,

“That is powers that has been given to the states.”

In making such statements, Mr. Butera evidenced his ignorance of how the state and federal fishery management systems worked, seemingly not realizing that the Atlantic Striped Bass Conservation Act was passed in 1984 precisely because, prior to that, there was no federal law that allowed striped bass management to be coordinated on a coastwide basis because up until then, only the states had authority to manage the fishery.

He also ignored a provision in Magnuson-Stevens which reads,

“Except as provided in subsection (b) [which has no applicability to striped bass], nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

That provision makes it clear that Magnuson-Stevens does not and may not give the federal government the authority to manage striped bass within state waters, which generally extend three miles out from the coast.

Judge McFadden quickly picked up on that fact and, although not quoting from Magnuson-Stevens, noted that there was a difference between state waters and the federal waters of the Exclusive Economic Zone, and observed that the states had the power to manage striped bass before the passage of the Atlantic Striped Bass Conservation Act.  

He asked Mr. Butera whether, with the states managing bass cooperatively through the ASMFC, state management is

“just now done in a more coordinated process between the states?”

But again Mr. Butera doubled down on his position, saying that

‘[the states] have a role but it is illegally delegated.”

He claimed that the ASMFC prepares the striped bass regulations, despite the fact that regulations are, in reality, promulgated and adopted by the individual states, and further argued that the states have no role, or at least no legally acceptable role, in managing striped bass, and that the authority of the ASMFC is advisory only, as the original interstate compact provided.  

Judge McFadden tried to bring the debate closer to reality, saying

“Your colleagues are going to be telling me the states had this authority [to manage striped bass] before”

Magnuson-Stevens became law, but Mr. Butera, again demonstrating his unfamiliarity with the fishery management process, adamantly argued that there was no state authority to manage striped bass before the Atlantic Striped Bass Conservation Act was passed, insisting that

“They never had that authority before”

1984.

At that point, Judge McFadden took the argument in a different direction, noting that the ASMFC, as an interstate compact, was a voluntary association of the states, and that if Maryland (again, the primary focus of the argument was the Maryland fishery and Addendum II’s impact on the Maryland fishing industry; although representatives of for-hire fishing operations in Massachusetts, Connecticut, and New York are also plaintiffs, they were not the primary drivers of the litigation) had a strong disagreement with the ASMFC, it was free to leave the compact and manage fish its own way.

Mr. Butera sort-of acknowledged the truth of that, but then responded by asserting that

“The federal government may not appoint states as their agents,”

thus suggesting that the federal laws granting binding management authority to the ASMFC were unconstitutional.

Judge McFadden then backed up just a bit, to focus on the defendants themselves.  He asked whether Georgia, South Carolina, and Florida were impacted by Addendum II, and Mr. Butera conceded that they were not, as the migratory striped bass population did not enter their waters and they did not have seats on the ASMFC’s Atlantic Striped Bass Management Board.

The judge then asked where the Maryland plaintiffs fished for striped bass, and Mr. Butera responded that they only fished in Maryland state waters.  But when Judge McFadden then pointed out that Magnuson-Stevens was thus irrelevant, because it only applied in the EEZ, Mr. Butera countered that while the judge’s statement might be true, the Constitution’s prohibition on the appointment of states as federal agents was not limited to federal waters, and applied in state waters, too.

Judge McFadden then asked Mr. Butera whether the intent of the lawsuit was to challenge Addendum II, and not the regulations of the various states, Mr. Butera replied,

“Yes, we are, because these regulations were adopted under the mandate of the ASMFC,”

but when the judge asked where, in the plaintiffs’ complaint, that was alleged, Mr. Butera conceded that such allegation had not been made.

And when Judge McFadden referenced the Fouth Circuit finding that the plaintiffs lacked standing in the Delmarva Fisheries Association case, because the regulations were promulgated by Maryland, and not the ASMFC, and asked Mr. Butera to discuss that decision, Mr. Butera responded that Robert Beale, the Executive Director of the ASMFC, testified in a Congressional hearing that Congress gave the ASMFC authority to “require” the states to adopt management measures, a requirement that was unconstitutional because a state

“cannot be compelled by the Congress to regulate its citizens.”

He tenaciously clung to his position that the ASMFC, in exercising the authority granted by Congress, was forcing the states to adopt striped bass regulations, ignoring the fact that the states were regulating that fishery long before the Atlantic Striped Bass Conservation Act became law.

In an effort to further define the issues to be decided, the judge then asked Mr. Butera whether his clients were claiming any injuries that were not the result of Addendum II, which brought a reply that Addendum III would probably be adopted on October 29, leading to his clients being subject to further restrictions.  

When asked whether the primary injury the Maryland plaintiffs suffered was the adoption of a 1-fish bag limit, Mr. Butera stated that the bag limit caused the greatest problems, but that the altered size limit and shorter season impacted them, too.

He then tried to minimize the importance of the Maryland for-hire fishery, arguing that

“The boat captains in Maryland have removed 26,000 fish,”

a figure that he claimed was “negligible” when compared to the six million bass removed coastwide, and to the overall size of the striped bass population, a comment that Judge McFadden let pass without further question.

However, the judge did note that in order for an organization to have status to sue, there must be at least one party who has actually been injured by the challenged action.  He noted that there was only one affidavit on file, from Capt. Hardman, the head of the Maryland Charter Boat Association, alleging injury, and asked whether he was missing anyone else.  Mr. Butera responded that the Delmarva Fisheries Association also included injured parties.

He also responded by arguing that a recent case from the Third Circuit, involving appointments to a regional fishery management council, established the principle that

“The litigant need not show direct harm or injury.  Such injury is presumed”

when an unconstitutional action occurs.  

When Judge McFadden then suggested that, when establishing the requirements for standing, the standards for an appointment and the standards for the sort of challenge Mr. Butera was making were different, Mr. Butera asserted that both were Constitutional challenges, and that the standard for standing was thus the same.

Going back to an argument that Mr. Butera had made before, that the ASMFC was meant to be an advisory body with no management authority, the judge then noted that the regulations that Maryland had adopted after Addendum II had been finalized—the regulations that supposedly caused harm to the Maryland plaintiffs—were more restrictive than what Addendum II required, although still based on that addendum.  Thus, Judge McFadden asked, what if the ASMFC was still just an advisory body, and Maryland adopted regulations based on its advice?  Would Mr. Butera still find a Constitutional infirmity?  Mr. Butera dismissed that hypothetical as “different” from the matter being decided.

Judge McFadden then asked whether the fact that Maryland could walk away from the ASMFC at any time might make a difference, but Mr. Butera called the question “counterfactual,” because in the case at hand, Maryland either didn’t or couldn’t leave the ASMFC.

At that point, the judge turned to another of the plaintiff’s claims, that the ASMFC’s

“usage of such clearly defective methodology [to determine the need for the management measures included in Addendum II] fails to meet the most minimum due process requirements or any possible justifiable basis for destroying Plaintiffs’ businesses and thus represents a Regulatory Taking of their property in violation of the Fifth Amendment of the U.S. Constitution.  [citations omitted]”

To remedy such alleged violation, plaintiffs were seeking

“An interim order and permanent judgment holding unlawful, enjoining, and setting aside in full the ASMFC 2024 Striped Bass Addendum approved on Jan. 24, 2024 and reauthorized on December 14, 2024.”

But Judge McFadden noted that, in the case of “takings” such as the one alleged in plaintiff’s complaint, money damages, not an injunction, were the most appropriate form of relief, and asked why that was not true in this case as well.  Once again, Mr. Butera insisted that Constitutional problems would still exist, and further explained that none of the defendants should be dismissed, because all might be required for an injunction to be issued. 

To that, the judge only responded,

“That’s certainly creative.  You’ve got a whole lot of plaintiffs here, sir,”

casting doubt on both the validity of Mr. Butera’s argument and the need to involve so many parties.  Yet once again, Mr. Butera insisted that

“The most important issue is the Constitutional question,”

and wouldn’t concede the point.

After a bit more back-and-forth, Mr. Butera sat down and Emilie Schwartz, counsel for the State of Maryland (and all of the states between Maine and Delaware), rose to make her points.

Her initial comments focused on standing, and the Fourth Circuit’s decision in Delmarva Fisheries Association.  In response to the judge’s questions, she affirmed that, even if the Court enjoined enforcement of Addendum II, there was “no chance” that Maryland would rescind its striped bass regulations.

She went on to explain that the program that allowed Maryland charter boats to retain two bass per person, in exchange for participating in a catch reporting program, was merely a pilot program that was initiated with the permission of the ASMFC, and that Maryland was not required to amend its regulations, in respect to the bag limit, in response to Addendum II, but merely terminated the pilot program.

She acknowledged that Maryland voted against Addendum II, but once it was adopted, Maryland put regulations in place that “far surpassed” Addendum II’s requirements

“to better protect the striped bass.”

Shortly thereafter, Judge McFadden made a comment which signaled that he understood what was at risk in the litigation:

“Remember ‘the Tragedy of the Commons’ from law school?..The ASMFC is to address ‘the Tragedy of the Commons.”

For those unfamiliar with the term,

“The tragedy of the commons is the concept that, if many people enjoy unfettered access to a finite, valuable resource, such as a pasture, they will tend to overuse it and may end up destroying its value altogether.  Even if some users exercised voluntary restraint, the other users would merely replace them, the predictferable result being a ‘tragedy’ for all.”

Thus, the judge’s reference to the concept may indicate that he is skeptical of the plaintiffs’ position, as did his subsequent suggestion that, if the ASMFC didn’t exist, the states might allocate the striped bass more generously among their own fishermen, to the overall detriment of the resource.

Ms. Schwartz disagreed with him there, noting that the states voluntarily came together to create the ASMFC, and to regulate striped bass and other fisheries, in the first place.

Judge McFadden then asked whether, if the ASMFC went away tomorrow, the states would continue to regulate striped bass, to which Ms. Schwartz replied yes, because

“The states always had the authority over the waters of the states,”

a fact that Mr. Butera still doesn’t seem to grasp.

Still, the judge admitted to being somewhat “perplexed” by the Atlantic Striped Bass Conservation Act, and its grant of regulatory authority.  Ms. Schwartz explained that it only applied to states belonging to the ASMFC, and that states were free to leave the ASMFC at any time; the law was only intended to keep ASMFC members compliant with the ASMFC’s decisions.  Similarly, when asked whether states “must” comply with ASMFC decisions, Ms. Schwartz again pointed out that was the case only if states voluntarily became and remained members of the ASMFC.

At that point, I had to get off the call to participate in another, but I was assured by someone who remained until the proceeding was adjourned that nothing more of significant importance occurred.

So what does it all mean?

If plaintiffs prevailed in the lawsuit, the ASMFC would lose its authority to compel states to comply with its management plans, both for the striped bass and for other species.  If that occurred, management would fall back on the shoulders of the individual states, which demonstrated in the past—most particularly in the early 1980s, when the striped bass stock had collapsed and the states were unable and/or unwilling to mount a coordinated response—that without both the carrot of healthy and rebuilt fish stocks and the stick of noncompliance sanctions being ailable to the ASMFC, effective fishery management measures were unlikely to be adopted.

That’s why the Atlantic Striped Bass Conservation Act was made law in the first place.

Lawsuits can take unexpected turns, and it’s impossible to predict with complete certainty how a judge will rule.  However, given the questions asked of both plaintiffs’ and defendants’ counsel, it seems likely that Judge McFadden is very skeptical of plaintiffs’ arguments, understands the value of the ASMFC’s role in striped bass management, and believes that the plaintiffs’ standing to bring suit is in doubt.

Whether that translates into a dismissal of all or part of the legal action is something that we should learn fairly soon.

 

STRIPED BASS: GRASPING AT STRAWS

 

By now, anyone who follows striped bass management issues knows that there has been another bad spawn in the Chesapeake Bay, with the Maryland juvenile abundance index coming in at 4.0, and the Virginia JAI at 5.12.  Both are well below the long-term JAI averages for the two states, which are 11 and 7.77, respectively.

While neither of those numbers fall into recruitment failure territory, which is defined as three consecutive years of JAIs that fall within the 25^th percentile of all JAIs for the region’s time series (1957-2009 for Maryland, 1980-2009 for Virginia), both are low enough, when combined with the previous two years’ JAIs, to trip the recruitment trigger contained in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which is three consecutive years of JAIs that fall within the 25^th percentile of JAIs for the period 1992-2006.

Once the recruitment trigger in Amendment 7 is tripped,

“an interim [fishing mortality] target and interim [fishing mortality] threshold calculated using the low recruitment assumption will be implemented, and the [fishing mortality]-based management triggers [that require management action to be taken under certain circumstances] will be reevaluated using those interim reference points.  In [a fishing mortality] reference point is tripped upon reevaluation, the striped bass management program must be adjusted to reduce [fishing mortality] to the interim [fishing mortality] target within one year.”

Of course, that's almost irrelevant now, since low recruitment in Maryland, Virginia, and the Delaware River already tripped that management trigger a while ago.

So it’s clear that the two JAIs, and the Maryland JAI in particular, were pretty bad news.

However, there are always people who try to deny reality, either because the have a financial incentive for doing so, or because they just can’t bring themselves to accept that the striped bass stock is quickly sailing into dire straits.  I didn’t realize how delusional such people could be, until I happened to look at the Facebook page of Fisherman’s Headquarters, a New Jersey tackle shop.  The store got the story and the context right, saying

“4.0…better than the last two years but another poor year (7^th consecutive) of striped bass recruitment from the Chesapeake Bay.”

But then I noticed the comment,

“By the percentage, it looks like 25 was 100% better than 24, which was 75% better than 23.  I wouldn’t call that a failure.”

A second comment read,

“100% increase,non top [sic] of 100% increase.

Good news doesn’t sell.”

I’ve since seen similar comments on the Facebook page of a regional magazine and on a website dedicated to striped bass angling.

And then there are the conspiracy theorists, with one commenting,

“Can we really believe these numbers? Are bass still spawning in the same estuaries as ten, twenty and thirty years ago?  Is the entire biomass shifting northward as temps rise, making Chesapeake YOY less predictive?  We see more bass of NJ now than in the past 15 years and more in the past 15 then [sic] the past 50.  Bureaucrats can make numbers say whatever they want to justify their actions.”

I’ve heard those comments elsewhere,

 too, often at striped bass hearings when people, usually connected to the for-hire fishing industry, are trying to impeach the data underlying fisheries management actions, in order to maintain current regulations and current harvest levels.

It’s startling just how many people try to deny the reality that poor recruitment is putting the striped bass stock at risk of serious future decline, and how many others try to concoct stories in an effort to convince themselves that things aren’t really too bad, either because they found some hope in the data or because they are certain that conservation efforts are all part of some nefarious government plot.

To be fair to the first comment that I quoted, the last three Maryland JAIs were steadily increasing, and this year’s JAI of 4.0 was the highest since 2018.  But reaching a high of 4.0 over the course of seven years of poor recruitment isn’t something to be cheered.

If we look at the last time recruitment dropped to low levels for an extended period of time, the years 1975 through 1988—in other words, the years leading up to the last stock collapse, and the years extending through the collapse itself—we can find two different occasions when the JAI rose as high as 8.45, the first in 1978, the second in 1982.  

In the first instance, the 1978 JAI increased from 4.85 to 8.45, before falling back to 4.24 in the next year.  While none of the JAIs in the decade prior to 1978 were as low as all of the JAIs in the last seven years, the stock collapsed a few years later anyway.

In fact, no seven-year period, including periods immediately prior to the last stock collapse or during the collapse itself, resulted in an average JAI as low as the average for the period 2019-2025.  It isn’t even close, with the average JAI for the past seven years a mere 2.81, while the second-lowest seven year average was substantially higher, at 3.41.  And that one occurred during the years 1980-1986, in the heart of the last stock collapse, which puts the current low recruitment levels in an uncomfortable context.

Thus, the fact that the Maryland JAIs increased from 1.02 to 1.98 to 4.0 shouldn’t give anyone comfort, for those numbers are all still dismally low, and the last stock collapse occurred despite being preceded by JAIs that were substantially higher.

The 1982 JAI of 8.45 was bracketed by JAIs of 1.22 and 1.37, so taking heart because the JAI is trending somewhat higher in the near term is probably a mistake; the index can trend downward just as quickly as it can rise.    

That being said, the 1982 year class, with its index of 8.45, was the year class that managers relied on to rebuild the striped bass stock.  But that rebuilding didn’t occur because managers said, “Hooray, this year class is bigger than the last one!” and then clung to the status quo, hoping that the bass population would heal itself, but instead because managers built Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass around the idea of protecting that year class, and every year class that followed, with a steadily increasing size limit, and of limiting fishing-related removals to no more than five percent of the spawning stock biomass until the spawning stock biomass was well on its way to being rebuilt.  

The regulations needed to accomplish that goal were far more restrictive than any adopted, or even proposed, in recent years.

Amendment 3 seemingly worked, as the 1989 JAI was 25.20, a year class that was considered “dominant” then, and would be considered the same today.  Yet the JAIs for 1988 and 1990 were Just 2.65 and 2.14, respectively.

Thus, anyone who believes that they can predict good news from three poor, but increasing JAIs, or who believes they can predict future JAI trends from past patterns, are going to be disappointed.  JAI patterns can no more predict future JAIs, than the patterns in tea leaves or in the entrails of a ram can herald future events, and we would foolish to believe otherwise.

And, speaking of foolish, why do the conspiracy theorists of the fishery world so often believe that managers are manipulating the numbers to show fewer fish in advancement of some secret government agenda?  

More particularly, why do they believe that “the government” wants to place additional restrictions on fisheries, and so cooks the data to further such goal, as the comment quoted above suggests?

There’s just no upside to any government agency doing that.

Anyone who spends any time around fisheries meetings know how much flak the various agencies receive any time that restrictions are mentioned, and anyone who knows any fisheries managers, and has spent any time speaking with them, also knows how much more flak they catch in letters, emails, and phone calls made outside of the public eye.

And anyone who takes the time to think for maybe four seconds will realize that commercial and recreational fisheries generate sales tax revenues, fuel tax revenues, and eventually income tax revenues, that are, to some degree, lost when fishing is further restricted.

So exactly what government interest would justify distorting the data in order to cause fisheries managers additional stress while also reducing the stream of tax revenues from the fishing industry?

Wouldn’t it make more sense for the government to only do what is necessary, based on the most accurate data available, to rebuild fish stocks, so that regulations could be eased, government employees receive fewer complaints, and more tax revenues might be generated?

That certainly makes sense to me, but the conspiracy theorists might know something that I don’t, because they’re always complaining that fisheries managers are using bad data to adopt unnecessary rules, all to, as the quote above suggests, “justify their actions,” although just what those actions might be, and why those allegedly unneeded actions might be, is never made completely clear.

And that’s because folks are grasping at straws.

Instead of accepting the fact that the striped bass stock is facing real problems, and that, regardless of whether the stock rebuilds by 2029, we’re looking at an almost inevitable decline after that, and instead of resigning themselves to the truth that tough remedial measures are going to be needed to turn things around, fishermen try to find solace in bad news, and if they can’t do that, try to convince themselves that talk of incipient problems are all part of some sort of government con.

In a few years, it’s likely that the truth is going to hit them between the eyes, and it’s going to hurt.  Very badly.

And then they’ll ask how it all happened, when everything was going so well.

                                                                                                                          .