Sunday, June 25, 2017

EXTENDED GULF RED SNAPPER SEASON ILLEGAL & ILL-ADVISED

Recently, the National Marine Fisheries Service (NMFS) issued a rule which reopened the federal red snapper season for private-boat anglers in the Gulf of Mexico (Temporary Rule). While such Temporary Rule was welcomed by many participants in the red snapper fishery, it is in serious conflict with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in the federal waters of the United States.

Magnuson-Stevens enumerates ten “national standards for fishery conservation and management,” which establish the nation’s fishery management policy.
National Standard One states that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” A federal appellate court decision, Natural Resources Defense Council v. Daley, handed down in 2000, determined that a fishery management plan which does not have at least a 50% chance of preventing overfishing does not comply federal law.

In addition, Section 303(a) of Magnuson-Stevens requires that “Any fishery management plan, which is prepared by any Council, or by the Secretary, with respect to any fishery, shall…establish a mechanism for specifying annual catch limits in the plan (including a multi-year plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to assure accountability” [emphasis added].

Despite such clear mandates that prohibit overfishing, when NMFS filed a notice in the Federal Register announcing the Temporary Rule, it stated that the extended season “will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.” Thus, NMFS clearly admits that the Temporary Rule violates both National Standard One and the provisions of Section 303(a).
The Temporary Rule may also impermissibly extend the rebuilding period for the Gulf red snapper stock.
NMFS admitted that, “if employed for a short period of time, this approach may delay the ultimate rebuilding of the stock by as many as 6 years. This approach likely could not be continued through time without significantly delaying the rebuilding timeline.”
Section 304(e)(4) of Magnuson-Stevens requires,
“For a fishery that is overfished, any fishery management plan, amendment or proposed regulations…for such fishery shall specify a time period for rebuilding the fishery that shall (i) be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish with the marine ecosystem; and (ii) not exceed 10 years, except in cases where the biology of the stock of fish…dictate otherwise” [emphasis added, some internal numbering deleted].

Because of its biology, the red snapper stock could not be rebuilt within ten years, so when the Gulf of Mexico Fishery Management Council (Council) finalized its rebuilding plan in 2004, after considering the relevant factors, it determined that rebuilding should be completed by 2032. By adopting the Temporary Rule, NMFS effectively extended that rebuilding period by as much as six years, but provides no explanation of why such extended rebuilding period satisfies the “as short as possible” criterion.

NMFS also fails to explain how the increased harvest attributable to the Temporary Rule can be considered the optimum yield for the red snapper stock.
Magnuson-Stevens provides that
“The term “optimum”, with respect to yield from a fishery, means the amount of fish which (A) will provide the greatest overallbenefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems, (B) is prescribed as such on the basis of maximum sustainable yield from the fishery, asreduced by any relevant economic, social or ecological factor, and (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery” [emphasis added].

Thus, optimum yield may never exceed maximum sustainable yield (MSY). In 2017, MSY for Gulf red snapper was 14.80 million pounds, which is divided between the commercial and recreational sectors. If some current estimates are correct, the Temporary Rule could lead to private-boat anglers exceeding their 2017 catch limit by as much as seven million pounds, which would lead to overall harvest exceeding MSY by nearly 50%.

NMFS justified the Temporary Rule, and its de facto extension of the rebuilding period by stating “Given the precipitous drop in Federal red snapper fishing days for private anglers notwithstanding the growth of the stock, the increasing harm to coastal economies of Gulf States, and that the disparate [state] approaches to management are undermining the very integrity of the management structure, creating ever-increasing uncertainty in the future of the system, the Secretary of Commerce has determined that a more modest rebuilding pace for the stock is a risk worth taking.”
Those are essentially social and economic arguments. Setting optimum yield above MSY in response to social and/or economic considerations has been outlawed ever since the Sustainable Fisheries Act of 1996 became law.

There is also reason to question the overall benefits that the Temporary Rule provides to the nation. While it does provide at least a short-term benefit to private-boat anglers, slowing down the red snapper’s recovery can only harm commercial fishermen and charter and party boats, as both will be forced to endure smaller catch limits, and consequently reduced income, throughout the extended rebuilding period.
Thus, a number of conservation and charter/party boat organizations have thus criticized the Temporary Rule. However, despite the Temporary Rule’s apparent illegality, its opponents seem to have little recourse.

Judicial review of NMFS’ regulations is governed by Section 305(f) of Magnuson-Stevens, which allows the agency 45 days to reply to any petition that challenges a regulation. Such long response period, coupled with the time typically consumed by the litigation process, makes it certain that no court decision could be issued before the red snapper season, extended by the Temporary Rule, closes on September 4.
Section 305(f) also prohibits a court from suspending application of the Temporary Rule until it had an opportunity to decide on its legality, which forecloses the only other possible remedy.
Yet, although some anglers’ rights groups are praising the Temporary Rule today, they may well have reason to curse it a year from now.

The 2017 recreational catch limit for Gulf red snapper is about 6.6 million pounds. Existing accountability measures require that, if anglers exceed such limit, the overage would be deducted from the 2018 recreational catch limit. Should the predictions of a seven million pound overharvest turn out to be true, it is very likely that the 2018 recreational catch limit will, as a result, be at or very close to zero, and there will be no federal season at all.

If that occurs, the problem won’t be limited to 2018. Even if accountability measures resulted in a federal catch limit of zero next year, state seasons would remain open. Any fish caught during those state seasons would then be deducted from the permissible 2019 catch, launching recreational fishery management into a downward spiral that has no obvious end.
That would have a real and undeserved impact on the federally-permitted charter and party boats, which may only fish for red snapper when the federal season is open, and are allotted 42.3% of the overall recreational catch limit. A small, or nonexistent, recreational catch limit would thus completely shut down the charter/party boat fishery, even if it did not overfish in 2017, while the private-boat anglers responsible for the problem would still be able to land red snapper caught during state seasons.

For all of the reasons set out above, the Temporary Rule is both illegal and ill-advised, a threat to both the health of the red snapper stock and the integrity of the fishery management system.
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This post first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/

Thursday, June 22, 2017

A TUESDAY EVENING WITH THE LYNCH MOB

The Atlantic States Marine Fisheries Commission is preparing a new amendment for its tautog management plan.  Last Tuesday, an ASMFC staffer came to New York to take public comment on the new amendment.

Things did not go well.

For some reason, at least here in New York, tautog hearings seem to bring out the worst in those who attend.  I’m not sure that I ever went to one that ran smoothly; ill-mannered people, profanity and a lack of respect for both the forum and the management process are endemic at such events.

Even so, last Tuesday’s hearing hit a new low.  The room was filled to standing-room-only with a crowd of for-hire fishing boat operators, along with a number of commercial and recreational fishermen.  From the start, the room was filled with a low murmur of discontent.

And, to be honest, such discontent was understandable. 


That reduction never occurred.  Instead of focusing on the needs of the stressed tautog stock, ASMFC’s Tautog Management Board worried about the short-term social and economic impacts of the needed harvest reductions.  First, they tried to phase in the reductions, but never reduced landings enough.  Then they sought alternate management measures and management targets, none of which where adequate to restore tautog abundance.

Regulations that could best be characterized as “too little, too late” increasingly turned the screws down on fishermen, making it more and more difficult for them to participate in the fishery, while never turning the screws down enough to successfully rebuild tautog populations.

Things have gotten so bad up in Long Island Sound, where the fish are badly overfished and overfishing is still occurring, that the fishermen could be looking at a one-fish bag limit.  As a practical matter, that isn’t much different from a completely closed season if you’re in the business of taking people out on tautog trips.

The result is an angry bunch of fishermen, and a depleted tautog stock, a combination that isn’t likely to do make anyone happy or do anyone any good.

That became pretty clear early Tuesday night.  The ASMFC representative who was supposed to run the meeting was running about 45 minutes late, due to three separate airline delays and the usual rush-hour traffic out of JFK.  Normally, the delay wouldn’t have caused any comment, as a member of the New York State Department of Environmental Conservation’s Marine Division was stepping up to run things until the ASMFC rep arrived. 

But this time, foreshadowing how the entire night would go, someone already stood up to complain that “We’re not getting paid to be here,” as if the attendees were somehow being inconvenienced from having the presentation made by someone else.

So John Manascalco, the top finfish biologist in the Marine Division, began explaining the details of the management plan amendment—the issues that everyone had supposedly come to comment on—to the folks in the room.  He didn’t get very far when someone asked why he was bothering to show all of that information on the screen.

It seems that the folks in the room didn’t come to listen to anyone speak about tautog management, or to politely discuss the proposed amendment.

As one of the attendees, a Montauk party boat captain, said during that first hiatus,

“We don’t care about your science.  Your science is bullcrap.”
And things headed more or less downhill from there.

John Manascalco made a few more efforts to explain the amendment before Ashton Harp, ASMFC’s Fishery Management Plan Coordinator for tautog, managed to navigate her way through the after-work traffic.  He was interrupted several times, and when she took over the presentation, she was treated, if anything, worse.

The interruptions were varied and often contradictory.  One Huntington party boat captain arrived with a lawyer in tow, threatening to sue the DEC (or maybe ASMFC, or maybe both) for earnings losses due to any additional harvest restrictions. 

After claiming that

“Fraud was committed”
in the preparation of something—presumably the draft amendment, but possibly the underlying stock assessment—and complaining about “fraudulent data,” tried to create an issue over the DEC providing meeting attendees with a 40-page summary of the draft amendment, instead of the entire 142-page document, which was easily available on the ASMFC website,  

Apparently he thought that everyone would speed-read the 142 pages in the minutes before the meeting began...

Shortly after that, other attendees asked where the information being presented by Ms. Harp had come from, not realizing that it was the same information that they held in their hands, in the form of the summary that DEC had provided. 

Many of the people in the room obviously hadn’t read the draft amendment, and really didn’t care to because, as expressed by the Huntington party boat guy,

“My knowledge and everything else is worth a million times more”
than any data that the scientists could develop.

Virtually all of the attendees seemed to agree with the speaker who said that

“We all believe that there’s plenty of blackfish”
and another who proclaimed that

 “We don’t have a problem with blackfish,”
before asking

“Why are we here?”
By then, It had become very clear that the assembled mob—for that’s what it had become by that time—had no interest in working with the DEC, ASMFC or anyone else to manage the tautog stock.  

They had no interest in any data being presented, and no interest in possibly hearing a fact that contradicted what they thought that they “knew.”

They were a lynch mob, pure and simple, snug in their own beliefs and determined that, before things were done, the proposed amendment would die.  

They didn’t know exactly what the proposed amendment contained, but they still wanted it to die, just to maintain the status quo.

It’s not that they didn’t understand that tautog fishery.  

They were excellent fishermen and good observers, with years of time on the water.  Their problem—and it’s one that plagues fisheries managers on every coast—is that they have perspectives limited by space and time, and refuse to accept that things are, or could be, any different from what they have personally experienced.

Like most people, they also suffer from confirmation bias, accepting only information that confirms what they believe—or want to believe—is true, and rejecting anything that conflicts with such beliefs.

The Huntington captain (he talks a lot) insisted that tautog can’t be caught in Long Island Sound before October 23, and that fishery managers are wrongly attributing catch to the earlier days of the season.  

Such comment demonstrated a gross misunderstanding of how the Marine Recreational Information Program, used to estimate anglers’ landings, works, it also demonstrated a failure to acknowledge that his experience is not universal—even in Long Island Sound.

I grew up in western Connecticut, more or less directly across the Sound from Huntington.  When I was young, in the 1960s and ‘70s, tautog were far, far more abundant (the folks who say that “there’s plenty of blackfish” and “we don’t have a problem” in the Sound are either kidding themselves, being dishonest or lack enough historic context).  Back then, we caught tautog from the middle of spring until we took the boat out of the water in November—even during the height of summer.

As kids still too young to drive, my friend and I would walk barefoot to his boat, beach it on an exposed sand bar to find a few mud crabs beneath overturned rocks, then head over to some rocky bottom, where we caught blackfish beneath a high August sun.

A little later, after I had become a full-fledged striped bass addict, I caught decent blackfish—three- to five-pound fish—while trolling sandworms for stripers just after sunrise throughout the season, from May right through fall.

And while in college, I came home every Columbus Day weekend to fish for—and catch a lot of—blackfish during that early October weekend.

Now, I haven’t fished for tautog in Long Island Sound for a few years and perhaps, these days, there are so few fish around that they don’t bunch up enough to make fishing worthwhile until late October.  But to say that they won’t bite before then is just untrue.

Maybe, if the stock is rebuilt, folks would be catching plenty of fish earlier in the year, and so could find that out for themselves.

But such mistakes, even if driven by personal bias, are arguably honest errors, made when people assume that their own limited experiences represent a universal truth.  

Other comments made at the hearing were far less innocent.

One charterboat captain complained that further conservation measures shouldn’t be adopted because they would hurt his business and the business of other for-hire operations.  Saying

“We make our living on the water,”
he suggested that there should be a special set of for-hire regulations different from those affecting the general public.

Such notion, that the state should subsidize their fishing businesses, by either allocating a portion of a public resource to their private use, or allowing that public resource to be further degraded for their short-term profit, seemed to be shared by many of the people at the meeting.  It’s an age-old lament among fishermen, although none ever try to explain why other businesses similarly burdened by government regulation, such as restaurants or gas stations, should not get government subsidies while charter and party boats should…

The other dominant, self-serving theme was opposition to a proposed requirement that any tautog caught by commercial fishermen be tagged before being put into the stream of commerce.

One of the factors that contributed to the tautog’s decline is a very large illegal fishery, which sells live tautog into ethnic markets in New York City and other urban areas.  It is a very difficult market to regulate, because if poachers aren’t caught while in the act of landing or selling their catch, the illegally-caught fish, unless undersized, are impossible to detect once in a dealer’s tank.  A tagging requirement would make dealers liable to fines if they sold illegal fish, and so would sharply restrict the number of buyers willing to those willing to risk apprehension.

Tagging would also allow regulators a way to cross-check catch reports filed by fishermen who are tempted to exceed daily trip limits, claim the legal number of fish on their vessel trip reports, and sell the rest under the table.  If the state issued numbered tags to each individual fisherman, the number of such tags and the VTR reports would have to coincide, making illegal harvest easier to detect.

That wouldn’t make poachers happy, so they’re part of the lynch mob, too.

Now, it’s in the hands of ASMFC. 

ASMFC is responsible for the fate of the proposed amendment, and it has a choice.

It can hold the amendment over until August, when it can be judged on its factual merits, and its fate decided by the Tautog Management Board.

Or it can turn the amendment over to the lynch mob who will merely kill it, not based on any data, but merely because killing things is what incensed mobs do when no one is willing to take responsibility and exert some needed control.

In the past, the lynch mob has always won, and tautog stocks have never been restored. 

Let’s hope that, this time, things are different, and people of good will and courage prevail.  

The tautog can use the help. 










Sunday, June 18, 2017

DOES NEW JERSEY NONCOMPLIANCE THREATEN INTERSTATE FISHERIES MANAGEMENT?

Managing federal fisheries is a relatively simple process, thanks to the Magnuson-Stevens Fishery Conservation and Management Act(Magnuson-Stevens).

Pursuant to Magnuson-Stevens, “Conservation and management measures shall be based on the best scientific information available.” Such “Conservation and management measures shall prevent overfishing.” To better assure that overfishing doesn’t occur, each regional fishery management council must “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its science and statistical committee…”
Thus, while there is often squabbling about the details—such things as the level of recreational harvest, allocations and the specific measures used to manage a particular stock of fish—the framework used to conserve and manage fish populations is largely cast in stone.
On the state level, things tend to be much more fluid. With a few very limited exceptions, Magnuson-Stevens doesn’t apply within state waters and, to date, no court has found that any state’s fishery statutes require managers to employ similarly rigorous conservation and management measures.
Intermediate between the state and federal level of management lie three interstate commissions, the Atlantic States Marine Fisheries Commission (ASMFC), Gulf States Marine Fisheries Commission and Pacific States Marine Fisheries Commission, which are interstate compacts, ratified by Congress, organized to promote cooperative fisheries management between the states.

All three commissions, as initially established, served in a solely advisory capacity; each could recommend fishery management measures, but could not compel such measures’ adoption by the states.
That is no longer the case for ASMFC.
In 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Cooperative Management Act), which required member states to comply with fishery management measures adopted by ASMFC.

Should ASMFC find that any state was not in compliance with a mandated management measure, the Cooperative Management Act requires that notice of such finding be sent to the Secretary of Commerce (Secretary). The Secretary then has up to 30 days to make an independent determination that such state is out of compliance and that “the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.”
Before making any determination, “the Secretary shall give careful consideration to the State that the Commission has determined…is not in compliance…and provide such State, upon request, with the opportunity to meet with and present its comments directly to the Secretary.”
If the Secretary ultimately imposes a moratorium, such moratorium must go into effect within six months after that determination is made.
Since 1993, ASMFC’s management decisions went largely unchallenged. From time to time, states went out of compliance and, once in a great while, a moratorium was imposed, but states normally backed down in the face of a threat to their fisheries, and any moratorium imposed lasted for only a very short time.
This year, ASMFC faces a more serious challenge.
In August 2016, the Mid-Atlantic Fishery Management Council (MAFMC) learned that six years of poor reproductive success had caused the summer flounder population to decline so far that it would soon become overfished if harvest wasn’t reduced. In response,MAFMC adopted annual catch limits intended to reduce fishing mortality by 30%.

In December, MAFMC decided that states, acting through ASMFC, might set their own summer flounder regulations, so long as such regulations yielded the same coastwide conservation benefits as a 4-fish bag limit, 19-inch minimum size and a season that ran from June 1 through September 15.

MAFMC’s actions drew a strong reaction from some members of the angling community, but nowhere was the reaction as strong, or as frenetic, as it was in New Jersey. An article published in The Fisherman, a New Jersey-based magazine and website, began “I’m about to really tick you off. Seriously, reading any farther is just going to make you incredibly angry.” It warned anglers about a purported 2-fish bag limit, 19-inch minimum size and a three-month season “at best,” a suite of measures far more restrictive than anything that was being seriously considered by either MAFMC or ASMFC.

The reality was far more benign. On February 1, 2017, ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board (Management Board) established summer flounder regulations for Connecticut, New York and New Jersey. While the Management Board did increase the minimum size to 19 inches, it allowed anglers to retain three fish, not two, and left the entire 128-day season intact.

Connecticut and New York adopted such regulations, but New Jersey refused to abide by the Management Board’s decision. Bob Martin, Commissioner of the New Jersey Department of Environmental Protection, announced that “We will use every legal and administrative tool available to stop these unfair cuts that will devastate our state’s fishing industry and have far-reaching impacts on the shore economy.”

He went on to question whether the fluke population was in decline, saying that “Our data has consistently shown that our fluke population has been stable since 1992,” although such observation could hardly help New Jersey’s case, since, in 1992, the summer flounder population was badly overfished.

New Jersey then appealed the Management Board’s decision to ASMFC’s Interstate Fishery Management Policy Board (Policy Board). Such protest claimed that the Management Board based its decision on flawed science, that it failed to consider public comment, that it failed to consider the economic impacts that harvest restrictions would have on New Jersey and that the draft Addendum proposing such reductions contained printing errors when released to the public for comment. All but one of those grounds were summarily rejected; an appeal based on the printing errors remains pending.

New Jersey also took another, much more consequential action. On May 18, upon the recommendation of the New Jersey Marine Fisheries Council, the Department of Environmental Protection adopted new regulations which retained the state’s 18-inch minimum size, reduced the bag limit to 3 fish and shortened the season to 104 days. New Jersey submitted such regulations to the Management Board for approval, arguing that they had the same conservation effect as the regulations that the Management Board had adopted in February.

ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee (Technical Committee) reviewed the New Jersey regulations, and disagreed. So did the Management Board. The harvest reductions achieved by the New Jersey regulations fell so far short of the target that not a single member of the Management Board would even second New Jersey’s motion to approve its new rules.
The Management Board then went on to find New Jersey out of compliance with the summer flounder management plan.

On June 1, the Policy Board also found New Jersey out of compliance, but New Jersey has kept the noncompliant regulations in place. The matter has now been referred to the Secretary, who will determine whether a moratorium will be imposed.

The Secretary’s decision could well decide not only the future of the summer flounder, but also the future of the cooperative interstate management system itself.
The current Secretary, Wilbur Ross, has said that “Given the enormity of our coastlines, given the enormity of our freshwater, I would like to figure out how we can become much more self-sufficient in fishing and perhaps even a net exporter.” He has also said that he sees a need for “obtaining maximum sustainable yield for our fisheries.”

It’s not clear from those statements whether Secretary Ross would favor conservative management measures which would allow fish stocks to fully recover, produce maximum sustainable yield, and thus provide more product for both domestic use and export, or whether he would favor more relaxed regulations that would set all annual catch limits at maximum sustainable yield, rather than at lower levels that would provide room for error and more reliably conserve and rebuild pressured stocks such as summer flounder.
If the Secretary wants to rebuild fish stocks and maximize their long term, sustainable yield, he is likely to endorse the Policy Board’s decision, and promptly impose a moratorium on summer flounder fishing in New Jersey waters until the state comes into compliance. In such case, both the fish and the fishery management system can look forward to a healthy and productive future.
If, on the other hand, the Secretary believes that fishery regulations need to be relaxed, he is more likely to favor New Jersey’s position. In such case, one of two things might happen.
The Secretary might find that New Jersey is out of compliance with management measures needed to conserve the summer flounder stock, and impose a moratorium, but make such moratorium effective after the close of New Jersey’s summer flounder season. That would effectively defer a final decision until next year, and provide an opportunity for biological or political events to render the noncompliance finding moot.
Or, the Secretary could find that the measures adopted by the Management Board are not “necessary for the conservation of the fishery in question,” and allow New Jersey to maintain its current regulations.
Neither of those alternatives would bode well for the future of the summer flounder or the fishery management system.
Even under the best circumstances, in which the Secretary agrees with ASMFC’s position and promptly imposes a moratorium, New Jersey anglers will have been able to fish under noncompliant regulations for at least four or five weeks; after that, compliant rules could be adopted to avoid a moratorium. That opportunity alone could tempt states to go out of compliance in other fisheries, particularly in fisheries where relatively short seasons make the benefits of going out of compliance disproportionately high.
Delaying the imposition of a moratorium, and so allowing anglers to enjoy noncompliant regulations for an even longer time, would make the noncompliance option even more tempting.
However, should the Secretary explicitly decide in New Jersey’s favor, he might well ring the death knell for the interstate management system.
If Secretary Ross allows New Jersey to adopt regulations that failed to gain Technical Committee approval, and were universally rejected by every other member of the Management Board, he will be inviting every ASMFC state to adopt inadequate regulations based on questionable data, in the hope that even such weak rules will somehow pass secretarial muster.
If he decides in New Jersey’s favor, he will make noncompliance a win-win strategy for every state. At worst (from a state’s viewpoint), states will be able to let their anglers fish for weeks, perhaps even months, pursuant to noncompliant regulations. At best, states will be able to avoid more restrictive ASMFC management measures completely, letting their neighbors shoulder the responsibility for rebuilding and maintaining fish stocks.
The Cooperative Management Act hasn’t been a panacea for East Coast fisheries management. It still has many flaws. However, thanks to the Cooperative Management Act, ASMFC’s fisheries management efforts have been far more effective than the chaos that existed before.
But a cooperative management system only works if everyone cooperates. Once a state is allowed to adopt regulations less restrictive than those imposed on everyone else, it won’t be long before the other states begin to become uncooperative, too.
And that could only cause the entire interstate management system to come crashing down.
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This post first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network.  It, along with posts from a number of other fishermen on the Atlantic, Gulf and Pacific coasts, can be found at http://www.conservefish.org/blog/

Thursday, June 15, 2017

SOME FLUKE ANGLERS STILL MISS THE POINT

Fluke season here on Long Island started out slowly.

There have been pockets of fish here and there, and a few spurts of action, but by and large fishing has not been good.  

Nor’east.com, a popular website that posts fishing reports from all over the region gives a pretty accurate portrayal of what’s going on.  Reports from the Fire Island Inlet area, where I fish, say things such as

A party boat angler reported that

Another private boat angler reported

 while one more complained that he

Anglers from other parts of the South Shore of Long Island have issued similar laments.  But what I found interesting is that when a fisherman out of Jones Inlet, perhaps a dozen miles west of me, complained that

“Seems like there are no fish around at all,”
another angler responded by saying that

“I agree i fish Jamaica bay & outside every week , endless amount of fuel & bait 4 trips 0 keepers!  I think the fluke will not come in this year & the regs aren’t helping.  [emphasis added, typos present in original]”
It’s pretty clear that fishing for fluke, more properly called summer flounder, is much worse than normal this season, although a significant proportion of the fish that have been caught have been large, including a seven-pounder taken on a Captree party boat and a nine-pounder caught by a private boat in Jamaica Bay.

But judging from that last quoted reply, it’s pretty clear that some anglers still don’t understand why fluke fishing is so poor.  The comment that “I think the fluke will not come in this year” suggests that there still is a good body of fish out there somewhere, while “& the regs aren’t helping” sounds as if the angler believes that he should be able to harvest smaller fish.

But if we look at the science, both of those suppositions are clearly wrong, and that the folks who perpetuate the myth that the stock is healthy, and that the rules are too strict, are doing real harm.

The last update to the summer flounder stock assessment, which was used in setting this year’s regulations, was released nearly a year ago.  It found that

“[Spawning Stock Biomass] was estimated to be 36,240 [metric tons] in 2015, 58% of the [biomass target that would produce maximum sustainable yield] and 16% above the [threshold for an overfished stock]…The average recruitment from 1982 to 2015 is 41 million fish at age 0.  Recruitment has been below average since 2010, ranging from 21 million to 36 million and averaging 26 million fish.”
Based on that finding, fluke fishing shouldn’t be very good right now.  Anglers shouldn't be seeing many few fish, with the usual horde of shorts missing because of the below-average spawning success that has been consistent since 2010.

And that’s exactly what is going on. 

The Laura Lee Fleet, based right inside Fire Island Inlet at Captree State Park, provides comprehensive reports of its customers’ catches, right down to the sea robins and dogfish (a/k/a “cape sharks”).  When we look at such recent reports, we see

“Wednesday 6/14/16 [sic].  Today’s 7 AM trip had 23 fishermen they caught 109 fluke, and 5 sea robins.  Today’s 8 AM trip had 17 fishermen they caught 50 fluke and 10 sea robins.  Today’s 1 PM trip had 29 fishermen they caught 25 fluke, 3 sea robins and 1 cape shark…
“Tuesday 6/13/17.  Today’s 7 AM trip had 14 fishermen they caught 74 fluke, 12 sea bass, and 5 cape shark.  Today’s 8 AM trip had 13 fishermen and they caught 75 fluke, 3 sea robins, and 12 cape shark.  Today’s 1 PM trip had 17 fishermen they caught 47 fluke, 5 sea robins, and 7 cape shark…
“Monday 6/12/17.  Today’s 7 AM trip had 20 fishermen and they caught 51 fluke, 10 sea bass, 9 skates, 8 cape shark, and 3 sea robins.  Today’s 1 PM trip had 27 fishermen they caught 62 fluke, 3 sea robins and 9 cape shark…”
Thus, over the course of 8 boat trips, spread out over 3 days, 160 anglers caught a total of 483 fluke, that breaks down to just 3 fluke--including undersized fluke that must be thrown back--per person.  The fact that a 3.48-pound fish, caught on June 2, was given special mention would support an assumption that most of the fluke caught have been small.

The reports for those three days were typical of reports for the entire season.  The only notable exceptions were mentions of a three larger fluke, a 6.7-pound fish caught on May 31, a 6.24-pound fish on May 28 and an 8-pounder landed on May 17, when the season opened.

Those are the sort of reports you’d expect to see from a population that has declined to just 58% of the target level, has experienced poor recruitment for the past 6 years, but still includes some larger fish from years prior to 2010, when recruitment was still good.

We need to be honest here.  

In a typical season, you can catch three fluke, including shorts, over the course of a half-hour—sometimes in less than ten minutes—not over the entire course of a four-hour trip.

So folks who just assume that the fish are elsewhere, and “will not come in this year” are pretty clearly deluding themselves.  As of the last assessment update, we’re looking at a population that is still headed downhill.


It’s time for all of us—anglers, for-hire operators, tackle dealers and, most of all, those who write in the magazines and purport to speak for the angling community—to admit that the last stock assessment update is in perfect accord with what we’re seeing on the water:  Not many legal fish, relatively few shorts and a handful of big holdovers from 8 or 10 years ago.

The science isn’t bad.  It’s right on target.

Unless we start following that science, and stop rebelling against it, the current bad fluke fishing will soon get a lot worse.



Sunday, June 11, 2017

GULF RED SNAPPER SPAWN MORE QUESTIONABLE LEGISLATION

Over the last ten days or so, I have written about the first rays of light to shine on recreational red snapper management in a very long time.  One was a Louisiana proposal that had the potential to provide anglers with a year-round federal waters fishery without overfishing the red snapper stock.  The other was a potential compromise that would extend the 2017 federal red snapper season by bringing state seasons into harmony with federal rules.

Unfortunately, we may see that ray stifled by another dark cloud.

That cloud has a name.  It’s the “Regionally Empowered Decision-making for Snapper, Noting the Angling Public and the Preservation of an Exceptional Resource Act,” which will more commonly be referred to by its non-coincidental acronym, the “RED SNAPPER Act.”

The Act is being brought to us by the same Congressman, Garret Graves (R-Louisiana) who, in the last session of Congress, introduced the world to H.R. 3094, the so-called “Gulf States Red Snapper Management Authority Act,” which would have stripped the federal government of its ability to manage red snapper, and handed all management jurisdiction over to a new authority composed of representatives from the five states bordering the Gulf of Mexico.



With H.R. 3094’s chances for passage so very, very slim, Rep. Graves appears to have abandoned the idea of a multistate management authority, at least for now, in favor of the RED SNAPPER Act, which has a narrower focus, but perhaps just as large an impact.

The RED SNAPPER Act is new legislation, so new that it hasn’t yet been assigned a bill number.  The copy that fell into my hands is dated May 30, 2017, and may or may not be the final version of the bill.  

I have not been able to find any press releases on the bill, nor any references to it on Rep. Graves website, although a draft information sheet and other documents that I received along with the bill again suggest that a public announcement is imminent.

At any rate, the RED SNAPPER Act is intended to only address the recreational, private-boat red snapper fishery in the Gulf of Mexico.  Language in the bill provides that

“The allocation of red snapper, and the duration of the red snapper fishing season—
(A)    for the commercial sector in the Gulf of Mexico shall be the same as the allocation and duration, respectively, that applied for the most recent fishing year; and
(B)   for the charter fishing sector in the Gulf of Mexico may not be less than the allocation and duration that applied to such sector for the most recent fishing year.”
The bill also provides that

“Nothing in this section may be construed to alter—
(1)    any commercial catch share programs for Gulf of Mexico red snapper; [or]
(2)    any Federal programs related to charter fishing…”
By including such language, the RED SNAPPER Act eliminates some of the objections to H.R. 3094, which were that one or more states, pressured by a strong and well-financed recreational fishing lobby, would reduce the percentage of red snapper allotted to the commercial sector; eliminate so-called “sector separation,” which reserved a share of the recreational catch limit for federally-permitted charter and party boats; or eliminate the commercial catch-share system that allows each commercial vessel to harvest a set proportion of the commercial catch limit.  

All three of those issues were strongly opposed by the recreational industry and the anglers' rights crowd.  By eliminating such bones of contention, Congressman Graves apparently hoped that the RED SNAPPER Act would face less opposition and have a better chance of passage than did H.R. 3094.

However, while the RED SNAPPER Act would not directly impact the commercial or charter/party boat fisheries, its provisions, if enacted, would certainly make such fisheries, along with the red snapper itself, victims of severe collateral damage, as the real-world impacts of the bill could not be limited to the private-boat recreational sector.

While the RED SNAPPER Act wouldn’t turn all authority to manage red snapper over to the states, it would give the five Gulf states the authority to manage red snapper not only in their own waters, but also inside

“a continuous line [drawn by the Department of Commerce and maintained on its website] in waters of the exclusive economic zone the Gulf of Mexico along the coasts of the Gulf states, that is comprised of points that are, on average,  25 fathoms in depth…
“No point on such continuous line shall be less than 25 miles from shore.”
Boundaries used to demark each state’s area of authority in federal waters would be the same boundaries used in the Outer Continental Shelf Lands Act.

In 2018 and 2019, the private-boat recreational red snapper seasons set by the states could not be longer than 50 days; from 2020-2024, such season could be as long as 180 days.
Given that, in 2017, the season in such waters was a mere 3 days, that suggests that a lot more red snapper would be removed from the population should the RED SNAPPER Act be adopted.  Such higher level of removals would certainly reduce the number of red snapper available to both commercial fishermen and charter and party boats, while slowing, and very possibly reversing, the stock’s current recovery.

That problem leads to the biggest ambiguity in the bill.  The RED SNAPPER Act states that

“In determining the season for the red snapper fishery…a Gulf State shall…to the extent practicable, be consistent with the national standards for fishery conservation set out in section 301 [of the Magnuson-Stevens Fishery Conservation and Management Act].”
Since National Standard 1 states that

“Conservation and management measures shall prevent overfishing, while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry,”
it would seem that the RED SNAPPER Act would no nothing to extend the private-boat season inside the proposed 25-fathom line, and thus serve no real purpose.

That conundrum, however, is addressed by the fact that it will be the states, not federal fisheries managers, who will decide when overfishing is taking place, and what the state of the red snapper population might be.  In making such determination, the states will be allowed to consider

“Data related to red snapper in the Gulf of Mexico collected by the Gulf States Marine Fisheries Commission, non-governmental organizations, and non-governmental sources, including fishermen, universities and research institutions.”
Given such broad discretion over the information used in their management programs, states will be able to base decisions on data of dubious quality, studies based on questionable methodology or which never faced rigorous peer review, and probably even anecdotal information, which will allow them to expand seasons while still arguing that no overfishing is taking place.

The draft information sheet that I had a chance to read alleged that

“Longer recreational red snapper fishing seasons can be achieved while meeting conservation goals by setting a maximum distance from shore (25 miles) and a maximum depth at which the species can be recreationally harvested (25 fathoms).  The proposal empowers the states to set seasons within this new area by preserving the fishery by leaving the majority of the stock in areas outside the restrictions untouched.  For red snapper, this is particularly important as a significant portion of the brood stock lives on habitat in water deeper than 150 feet…”
A draft set of frequently asked questions that was also part of the document set that I received noted that

“Fishing red snapper in water less than 25 fathoms will continue the harvest of 2-7 year-old fish that has been seen in all sectors for the past 25 years.”
What it does not explain is why concentrating recreational landings on such small and minimally fecund red snapper is desirable.  Nor does it address a problem that anyone who fishes for structure-dependent species will quickly recognize—when a wreck or reef sees a lot of fishing pressure over an extended period of time, both the size and number of the fish available quickly dwindle.  Anyone who believes that the RED SNAPPER Act will maintain a healthy red snapper fishery is probably kidding themselves.

Instead, fishing will be good for the first few days of the season, but will begin to slide downhill a couple of weeks later. 

At that point, any kid who ever jumped over a fence to catch big largemouth out of a private pond can tell us what happens next—private boats will begin to slide over the 25-fathom line, to poach red snapper out of deeper waters, knowing that the few law enforcement resources available will render illegal harvest in the open Gulf a nearly undetectable crime.

The lack of law enforcement will also mean that the population of fish in waters deeper than 150 will be far from “untouched,” and that the protection that the RED SNAPPER Act will provide to the big, fecund fish found in such greater depths is somewhat illusory.

Thus, while the RED SNAPPER Act isn’t all bad—it leaves such successful management approaches as commercial catch shares and sector separation intact, and at least gives a nod to Magnuson-Stevens—it’s not likely to either end the red snapper debate or promote the red snapper’s recovery.

Such things can only happen when the recreational fishing industry and the anglers’ rights folks finally realize that, when it comes to conserving and rebuilding stocks—and assuring that we’ll have something to fish for well into the future--nothing works better than killing fewer fish today.