Thursday, October 23, 2014
The index came in at 11.0, which is just a little below the long-term average of 11.7.
Under normal circumstances, a young-of-the-year number that nearly reaches the long-term average is hardly worth noticing. It's merely what one would expect if all was well with the stock.
However, there are three things that make the 2014 more significant than the raw number suggests.
One is the fact that the most important factors in spawning success, a cold winter and a wet spring, were present last year, yet the index could barely struggle up close to the long-term average.
Another is the fact that, if you look at the 2014 number in context—as part of a multi-year average and not a stand-alone number, the bass just aren’t doing that well.
And the final and biggest factor that draws attention to the young-of-the-year figure is the way that Maryland is trying to spin what is, at best, a mediocre spawn into some sort of fisheries management victory, gushing that
“the 2014 juvenile index, a measure of striped bass spawning success in Chesapeake Bay, is 11.0, nearly equal to the 61-year average of 11.7. The results indicate a healthy level of reproduction for Maryland’s state fish.”
That’s the kind of talk you hear from someone who is trying to downplay the fact that the striped bass stock will likely be declared “overfished” in 2015, and is trying to find a way to water down fishery managers’ efforts to reduce fishing mortality and begin rebuilding the stock.
It’s the sort of thing that you’d expect to see coming out of the Maryland Department of Natural Resources, and Tom O’Connell, Director of its Fisheries Service, who has already said
“I think that it really comes down to a cost-benefit analysis…
“…I think…a 32 to 36 percent reduction is going to have large socio-economic impacts as well as potential ecological impacts. I think we don’t have a stock situation that is in dire need of protection…”
and spearheaded the effort to rewrite the management plan to allow phasing in harvest reductions over three years, instead of making them all in 2015.
We can expect the other “kick the canners” (which is what Capt. Dave Pecci, founder of the Save Our Stripers, calls Management Board members who continually strive to delay action to rebuild the stock) to quickly latch onto Maryland’s forced exuberance and use it in arguments to drag out—or completely set aside—reductions in fishing mortality.
We can only hope that a majority of Management Board members won’t be fooled by such sleight-of-hand.
Because, as mentioned above, conditions seemed right for a much better result, given the weather last winter and spring.
A good example of how weather affects spawning success can be seen in the very different young-of-the-year figures for 2011 and 2012. The winter of 2011 was cold, and led to favorably wet conditions in the spring; the result was an index of 34.58, the fourth-highest ever recorded. The winter of 2012, on the other hand, was one of unprecedented warmth; the result was an index of 0.89, the worst on record. Even during the last collapse, none were so low.
Granted, other factors can influence young-of-the-year production. A successful spawn may have been frustrated by poor survival of eggs, larvae or fry. Or conditions other than weather might have held spawning success down.
The take-away message is that even when the weather is good, other factors may lead to mediocre production. That gives little hope for a good year class when the winter is warmer than it should be.
And given the worldwide temperature trend, warmer winters are becoming the rule…
So clearly, in that context, the 2014 Maryland index gives little cause for celebration, and less cause to delay harvest cuts.
In other contexts, the index looks even worse.
Back in 1985, when the Atlantic States Marine Fisheries Commission adopted Amendment 3 to the Interstate Fisheries Management Plan for Atlantic Striped Bass—the amendment that was ultimately responsible for bringing the stock back from a catastrophic collapse—it set a three-year rolling average for the Maryland index of 8.0 as a threshold indicating that the stock had begun to recover.
Until the three year average hit 8.0, ASMFC imposed restrictions on harvest designed to assure
“That the states prevent directed fishing mortality on at least 95% of the 1982 year class females, and females of all subsequent year classes of Chesapeake Bay stocks until 95% of the females of these year classes have an opportunity to reproduce at least once.”
The current three-year average, which includes the supposedly ‘healthy” 2014 spawn, is 5.9, and people are still arguing about whether to reduce fishing mortality to F=0.180, a lot higher than the Amendment 3 levels…
Certainly, there’s a big difference between rebuilding a collapsed stock and trying to rebuild a stock that has just slipped below the “overfished” threshold. But if the stock is declared “overfished” in 2015, do we believe that a three-year average index of just 5.9 is going to be enough to bring it back to health, without prompt and meaningful reductions in harvest?
And if we want to look at the intermediate-term trend, things still aren’t all that comforting. The 10-year average, which includes the dominant 2011 year class still comes in at a sub-par 10.4.
The trend of sub-par spawns is particularly troubling when you realize that the long-term average itself includes a built in “shifting baseline” provision.
As more and more below average spawning years are included in the index, the index will trend ever downward. Today, an “average” spawn would result in an index of 11.7; ten years ago, before the recent run below-average year classes, it would have been 12.1.
Not a big difference, to be sure, but still an unsettling trend with the potential to grow worse over time.
The Management Board meeting that will decide the striped bass’ fate is still six days away. There is still time for concerned anglers to warn their states’ ASMFC commissioners against finding reasons for undue optimism in this year’s Maryland spawn.
They must not be like the young boy of legend who was so filled with naïve optimism that his father finally decided that, for the child’s own good, he must be brought back to earth.
When that boy’s birthday came around, he came down from his bedroom early, knowing that a wonderful present must be awaiting him somewhere in the house. So he looked at his father expectantly, and his father told him what he wanted to hear, that his gift awaited him in the garage.
Excited and filled with expectation and wonder, the boy rushed outside and flung open the garage door, only to find a heap of manure. Upon seeing the pile, the child cried out in joy, jumping up and down and clapping his hands, finally shouting “With this much manure, there must be a pony around somewhere!”
Maryland spinning this year's index as good certainly deserves to be viewed as manure.
But there sure ain’t no pony around.
And if managers don’t look past Maryland’s spin, in a few years, there may not be any striped bass around either.
Sunday, October 19, 2014
The Atlantic States Marine Fisheries Commission’s Striped Bass Management Board will meet ten days from today.
In roughly 240 hours, we’ll know whether managers have taken meaningful steps to conserve and hopefully restore the Atlantic migratory striped bass stock, or whether they abandoned their obligation to the public at large and chose to pander to the small minority of people who profit from killing this public resource.
Late last week, ASMFC released some of the materials that the Management Board will—or at least should—consider when making their decision. Both a memorandum drafted by ASMFC’s Striped Bass Technical Committee and comments received during the public hearing process make two things very clear.
The new fishing mortality reference points established in the benchmark stock assessment should be adopted.
And we need to reduce harvest to or below the new fishing mortality target within one year.
The numbers are pretty striking.
Out of everyone who addressed the questions at public hearings, nearly 93% support adopting the new reference points, and 81% don’t want to change the current language in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which requires that the needed harvest reductions be achieved within just one year.
In the fractious world of the striped bass fisherman, where any two people are as likely as not to hold three different opinions, that level of agreement is striking—particularly when you realize that we’re not just talking about anglers’ views, but those of commercial fishermen and for-hire operators as well.
Things get even more remarkable when you realize that a majority of all respondents—a little over 52%--favor the most restrictive recreational option offered by the Management Board, a limit of one striped bass that must be at least 32 inches long.
In a perfect world, the support for the new fishing mortality reference points wouldn’t be too remarkable, as they represent the best available science—which is what reasonable people would hope is being used by the folks we entrust to manage our living marine resources.
However, as anyone who has entered the fisheries management arena knows, it exists in a world that is neither perfect nor perfectly rational. That unfortunate fact is reflected in the public hearing comments as well.
At the striped bass hearings, most of the irrationality was limited to a single event. Seven of the twelve dissenters showed up at the hearing in Ridgefield Park, New Jersey, arguing that the reference points mandated in the new, peer-reviewed benchmark assessment shouldn’t be adopted because
“there is no problem with striped bass abundance and the science is flawed.”
(I always fantasize about getting all of these “the science is flawed” types together in a room, dropping copies of the stock assessment and the associated raw data on a table in front of them and asking them, very politely, if they could please help us out and show just where the flaws in the data resided—and then quickly stepping out of the way as they all roared something bellicose and likely obscene and then rushed back to the bar for another few beers…)
Opposition to the one-year harvest reduction was more evenly spaced up and down the coast; on the other hand, there were clear demographic patterns.
As Al Ristori, Striped Bass Advisory Panel member from New Jersey notes in his blog on nj.com,
“The commercials didn't want any further cuts or restrictions, while the recreational representatives were primarily in favor of reducing to a single bass at 28 inches or 32 inches…”
What Ristori didn’t explicitly note, because they weren’t widely represented on the Advisory Panel, was that a lot of the for-hire boats were also opposing the single-bass bag limit and single-year harvest reduction. But if you go through the meeting notes, the pattern becomes pretty obvious.
Traditional “six-pack” charters, that tend to hang dead fish on the racks by their docks when they return from an outing, largely oppose the conservation measures that have broad support among the fishermen themselves. Instead, they are pushing hard for a two-fish bag limit and, in most cases, a three-year recovery.
On the other hand, fly and light-tackle guides, along with a minority of six-pack operators, who promote a “quality fishing experience” rather than just dead fish on the dock, have been strongly supportive of taking the entire harvest reduction in a single year and, in the majority of cases, of a 1-fish bag and 32-inch minimum size. Charter operators in northern New England, where striped bass are already scarce, or in “destination” areas such as Block Island and Nantucket, also strongly supported conservation measures.
Such pro-conservation sentiments were shored up by the Technical Committee, which noted that
“Reducing [fishing mortality] to the target in one year will be more beneficial to increasing [spawning stock biomass] and protecting strong year classes than reducing [fishing mortality] to the target in three years…”
“Although all the recreational management options achieve the required reductions, the [Technical Committee] has greater certainty in the percent reductions of simple management measures (e.g., changes in bag or size limits) relative to more complex measures (e.g., slot or trophy fish options).”
In the context of the current debate, that means a one fish bag and a minimum size of 28, 30 or 32 inches—just what almost all of the anglers are asking for.
So it’s pretty clear what the majority of the folks who commented on the issues want (more than 3,000 written comments submitted outside of the public hearing process have yet to be tabulated, but there is no reason to believe that they won't be at least as supportive of conservation measures as the comments made at the hearings).
The science, in the form of the benchmark stock assessment, is very clear.
So is the Technical Committee’s advice.
So will the Management Board go along?
The sad truth is, we don’t really know.
If striped bass were a federally-managed species, governed by the provisions of the Magnuson-Stevens Fishery Conservation and Management Act, we could be certain that managers would do the right thing.
Magnuson’s National Standard Two requires that
“Conservation and management measures shall be based upon the best scientific information available,”
so we wouldn’t even be discussing whether the fishing mortality reference points from the benchmark assessment should be adopted. That would have been done back in 2013.
A federal management plan would have to
“contain…conservation and management measures…which are necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery. [emphasis added]”
And a plan governed by Magnuson would also have to
“specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished (with an analysis of how the criteria were determined and the relationship of the criteria to the reproductive potential of stocks of fish in that fishery) and, in the case of a fishery which the Council or the Secretary has determined is approaching an overfished condition or is overfished, contain conservation and management measures to prevent overfishing or end overfishing and rebuild the fishery. [emphasis added]”
So under the federal management system, when the update to the benchmark assessment found that
“If the current fully-recruited F (0.200) is maintained during 2013-2017, the probability of being below the SSB reference point increases to 0.86 by 2015,”
meaning that the stock was very, very likely to be overfished next year, there would have been no room for debate.
Meaningful action would, in all likelihood, already have been taken. No one sitting around the management table would even think about uttering the words, “status quo.”
But at ASMFC, things are different.
Its Interstate Fisheries Management Program Charter contains a section entitled “Standards and Procedures for Interstate Fisheries Management Plans” which says that
“Above all, [a fisheries management plan] must include conservation and management measures that ensure the long-term health and productivity of the fishery resources under management. [emphasis added]”
That’s a pretty high standard, and it might even be meaningful if ASMFC decisions were subject to the same sort of judicial review that applied to federal management decisions. But with no effective way yet found for a court to place limits on ASMFC’s exercise of discretion, it has proved pretty meaningless in practice, even though the Charter also clearly states that
“Conservation programs and management measures shall be designed to prevent overfishing and maintain over time, abundant, self-sustaining stocks of coastal fishery resources. In cases where stocks have become depleted as a result of overfishing and/or other causes, such program shall be designed to rebuild, restore, and subsequently maintain such stocks so as to assure their sustained availability inj fishable abundance on a long-term basis.”
It further states that
“Conservation programs and management measures shall be based on the scientific information available.”
However, as anyone familiar with the management plans for winter flounder, weakfish and tautog, not to mention northern shrimp or the southern New England stock of American lobster know, such nice words don’t really mean a lot when management boards choose to ignore them.
And that’s largely because there is one simple sentence in the Standards and Procedures section which says
“Social and economic impacts and benefits must be taken into account.”
And in the real world of ASMFC management plans, when those “social and economic impacts” collide with the scientific findings and/or the realities of conservation, which is generally the case, the social and economic impacts end up on top, just about every time.
They are not merely “taken into account.” They are generally the deciding factor.
But there have been exceptions.
Strong public outcry played a big role in convincing ASMFC to place restrictions on horseshoe crab harvest, and it’s pretty likely that it also led the Commission to eventually (after years of foot-dragging and ignoring the problem) to impose meaningful restrictions on the harvest of forage fish such as menhaden, shad and river herring.
So I’m not being completely naïve when I express hope that the strong public support for cuts in striped bass harvest will compel the Management Board to take meaningful action again.
But I’m not going to say what such action might be.
It will almost certainly represent a compromise between the handful of extremists pushing for status quo, the minority emphasizing the short-term economic benefits of a three-year phase in of reductions and the conservation-minded anglers who are calling for making the all harvest cuts in a single year, and imposing nothing less than a 1-fish bag and 32-inch minimum size on recreationally-caught stripers.
Beyond that, nothing is clear, except that we’re in the home stretch of a race that, for some of us, began about two decades ago, when we told managers that the liberal harvests proposed in Amendment 5 to the Interstate Management Plan for Atlantic Striped Bass, and echoed in Amendment 6, would cause too many bass to die.
Nearly twenty years later, the 2013 benchmark assessment showed that we had been right all along.
We can only hope that the Management Committee wants to be right as well.
Thursday, October 16, 2014
As we get closer to the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board meeting on October 29, anglers are understandably anxious about what the Management Board is going to do.
Will it act responsibly and impose a harvest reduction of at least 25% for the 2015 season? Or will it cave in to the demands of some industry voices, and favor short-term economic interests over the public interest in a healthy stock?
Along with that worry, there’s one more that has come up throughout the debate. And it’s not going to go away.
Even if the Management Board does the right thing, will states try to game the system and get a leg up on their neighbors by invoking the concept of “conservation equivalency?”
Conservation equivalency is one of those concepts that’s unique to ASMFC.
You don’t generally see it in the federal system. The Magnuson-Stevens Fishery Conservation and Management Act’s National Standard Three requires that
“To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.”
That’s usually interpreted to mean that, in federal waters, regulations will be the same throughout the stock’s range.
There are a few exceptions.
The South Atlantic Fishery Management Council’s Fishery Management Plan for the Dolphin and Wahoo Fishery of the Atlantic does not impose a size limit for dolphin on most states’ anglers. However, in order to avoid conflict with regulations in Florida, Georgia and South Carolina, anglers landing dolphin in those states must abide by the relevant state’s minimum size limit.
And in the Gulf of Mexico’s troubled red snapper fishery, the Gulf of Mexico Fishery Management Council tried to impose seasons of different lengths on anglers from different Gulf states, in order to compensate for disparate size limits, bag limits and seasons adopted in state waters. However, that effort was frustrated by a federal court, which found that it violated National Standard Four of the Magnuson Act, because it discriminated between the residents of the affected states.
However, at ASMFC, the idea of states imposing different but supposedly “equivalent” regulations has a long, if somewhat checkered, history.
ASMFC’s Charter specifically permits it, saying that if a management board chooses to permit conservation equivalency to apply to any management plan, such management plan must contain
“procedures under which the states may implement and enforce alternate management measures that achieve conservation equivalency.”
Over the years, that provision has been applied pretty liberally.
The most controversial application of conservation equivalency was undoubtedly in the summer flounder fishery, where each state was given its own share of the recreational allocation and required to come up with some combination of size limit, bag limit and season that—again in theory—kept its anglers from exceeding their quota.
The system didn’t work.
Neighboring states had wildly different regulations. Disgust and anger flared when anglers fishing on one side of a state border were forced to release fluke that were undersized for them, but were a couple inches over the limit for anglers in another boat, who were fishing a just a few yards away, but on the other side of the border.
Summer flounder management board meetings became less an exercise in conserving and managing the stock and more an effort by each state’s commissioners to protect their share of the fishery and, if possible, grow that share at the expense of their neighbors.
And the whole thing was pointless, because they were all fishing on the same stock of fish, that swam where they chose without regard for state borders.
That problem was fixed, at least temporarily, by the adoption of regional management in 2014, but there is no guarantee that it won’t rear its head up again next year.
In other fisheries, conservation equivalency didn’t arouse such passions, but it still didn’t always make sense.
In the scup fishery, for example, the four states that share most of the harvest, New York, Connecticut, Rhode Island and Massachusetts adopt a similar set of regulations. That is a good thing, because they’re fishing on the same stock of scup, and managing on a regional basis helps smooth out the regulatory swings that seem endemic to state-by-state management.
However, the states from New Jersey south fish by different rules, and that’s where the problems set in.
In New York, for most of the season, anglers may keep 30 scup at least 10 inches long, and the season runs from May 1 through the end of the year. However, in New Jersey, anglers may keep as many as 50 scup no less than 9 inches long, and the season runs from January 1 through February 28, and from July 1 through December 31.
Boats running south out of Long Island ports, or southeast out of Staten Island or Sheepshead Bay, often fish on the same wrecks as vessels that run east out of New Jersey. Two boats might be anchored within easy sinker-throwing distance of one another, but the anglers on the New York boat may take only 30 10-inch fish compared to the Jersey boats’ 50 fish at 9 inches. In January and February, the Jersey boats may still load up while the New York boats can’t retain any scup at all; in May and June, that situation is reversed and the Jersey boats must go empty while the New York boats score.
From a conservation and management perspective, that’s pretty hard to defend.
So some folks are concerned that we’re going to have a plethora of regulations governing the migratory population of Atlantic striped bass.
To some extent, we already do.
Maine wanted to kill immature fish, and accepted a 1-fish bag limit in order to make its 20 to 26-inch or over 40-inch slot “equivalent” to two at 28 inches. New York didn’t want its commercial fishermen to put big, PCB-laden fish from the Hudson River into the stream of commerce, and traded a 24 to 36-inch slot for a reduced commercial quota. And Connecticut and New Jersey, which are “gamefish” states with no legal commercial harvest, translated unused commercial quota into a bigger recreational kill.
But today, with regulations as restrictive as one fish at 32 inches being discussed, I’m hearing a lot of concerned talk about states turning to conservation equivalency to frustrate the spirit, if not the letter, of any harvest reductions.
The concern comes from two camps. There are the conservation-minded anglers who don’t want to see the spawning stock threatened by “equivalent” regulations that raise the bag limit above a single fish. Then there are their polar opposites, the for-hire boats who support a big kill, and fear that “equivalent” options might lure meat-hungry customers away.
The concerns are not groundless.
Right now, we’re looking at a striped bass population that features big gaps between dominant—or even average—year classes. The 2008 and 2009 year classes, which will provide the just-legal fish in 2015, were below average in size; the last dominant year class was 2003, and those fish will be about 40 inches long next season.
It’s not impossible that one or more states will decide that they can achieve conservation equivalency by adopting a 2-fish bag limit, for everyone or perhaps just for their for-hire boats, and a size limit somewhat higher than the one set by the Management Board.
If the Management Board adopted a 1-fish bag and a 28-inch minimum size, two fish at 33 inches would probably be deemed equivalent.
That sounds like a big step up, but since there has only been one average year class (2007) between 2005 and 2011, it probably wouldn’t have much effect on harvest, since the 2005s would be about 36 inches long. On paper, two at 33 inches might look “equivalent” to one at 28, but on the water, taking account of the largely missing year classes, it would probably result in a lot more dead fish.
That would be a bad thing, and would largely frustrate efforts to reduce fishing mortality, which already have a 50% probability of failure.
In New Jersey, giving the unused commercial harvest currently allocated to its “bonus fish” program to the for-hire landings could give its boats a second fish and competitive advantage over boats in neighboring states. Coupled with an increased size limit, it might be enough to get a second fish for everyone.
Conservation equivalency would probably be less of a problem if the Management Board opts for a 32-inch minimum size, because the size limit associated with a 2-fish bag could become prohibitively large.
Unfortunately, there’s probably little that we can do about the conservation equivalency issue.
In theory, the Management Board could decide that conservation equivalency won’t apply to striped bass. But you’ll probably see your house get hit by a meteor before you see conservation equivalency banned. The ASMFC commissioners are just too used to the concept, have all used it when it served their purposes, and would be reluctant to see their discretion to use it taken away.
So the best we can probably do is to admit that we live in an imperfect world, and try to convince our state fisheries managers that the best way to rebuild the striped bass is to manage it under one set of uniform regulations throughout its range, and not permit state-by-state exceptions to undermine the management process.
It’s not a perfect answer, but it’s the best one that we have.
Because conservation equivalency, as flawed as it may be, isn’t going away any time soon.
Sunday, October 12, 2014
A few days ago, I stopped down at a local marina and, as often happens, started talking about fish.
This time, the conversation kicked off when one of the guys said “It looks bad for striped bass.” We exchanged some technical babble about benchmark stock assessments and the young-of-the-year trends, and then he noted “But what’s really bad is the poaching.”
He went on to talk about supposedly “recreational” folks going out, coming back with an illegal load of stripers that they sell to local markets and restaurants.
From that point, the conversation broadened to include the folks who killed too many school bluefin, then sold them illegally to the same sort of places, the wealthy folks with the 50-foot battlewagons who come in from the canyons with 40-pound yellowfin that they “need” to market for $1 per pound and, perhaps worst of all, the live-fish poachers that have decimated our blackfish (you might call them “tautog”) stocks.
And what got the folks down at the dock angrier than anything else was that on the rare occasions that someone actually got caught, the fines were completely disproportionate to the crime, amounting to a mere slap on the wrist.
Someone said that fines should be punitive.
“Make the first illegal fish $500, $1,000 for two, and just keep going until it starts getting really expensive. And take the boat, too. After it happens a couple of times, people will start thinking that it’s not worth the risk of losing a $300,000 boat to sell $300 of fish.”
At that point, I interjected that, as nice as such penalties would be, the trend is headed in the opposite direction. In another sad example of the inmates running the asylum, the folks who break our fisheries laws now have now taken control of the debate, and have fisheries enforcement folks on the defensive.
At both the federal and state level, the folks charged with protecting our natural resources are having to justify fining poachers and making fishermen to play by the rules, while everyone else stands around ignoring the fact that the folks righteously criticizing law enforcement them stand on the wrong side of the law themselves.
It started up in New England, as a lot of the bad things in fisheries do, when a volatile combination of fishermen who were hostile to, and often violated, federal fisheries regulations faced off against federal law enforcement officers who aggressively pursued those violators. A tense situation exploded into public controversy after agents from the National Marine Fisheries Service raided the Gloucester Seafood Display Auction.
The agents were seeking evidence that the Auction was dealing in illegally-caught cod, and served a warrant demanding possession of its business records.
As noted in a 2011 article entitled, “The Gloucester Fish War,” which appeared in Bloomberg Businessweek magazine,
“All day the agents checked in with their boss, Andy Cohen, the man responsible for policing NOAA’s northeastern fisheries. Cohen was at a fish farming conference in Connecticut, but even from a distance he sensed that things might not work out the way he had hoped. Several local politicians had shown up at the auction house. The Ciullas’ friends were bringing the family sandwiches. The Gloucester mayor sent a veteran police detective to watch over the feds. A representative from Democratic U.S. Representative John Tierney’s office had stopped by for half an hour.
Cohen knew that fishing was the business of Gloucester, but the next five years would reveal just how powerful the industry could be. The battle between Cohen and Ciulla had begun many years earlier and would end this past summer with NOAA’s enforcement powers severely compromised and with Cohen out of a job. Starting that day in Gloucester, much would be revealed about the balance between the world’s fisheries and the businesses that harvest them. ‘I don’t think the fishing industry is ever going to be the same,’ says Cohen.”
The politics of the situation, along with some overly-aggressive tactics on the part of the enforcement agents, quickly overshadowed the fact that members of the Gloucester fishing community often opted to break the law.
As the Buisnessweek story reported,
“The Gloucester community had its share of habitual offenders, but the low likelihood of getting caught made it more tempting for otherwise honest fishermen struggling to profit from depleted stocks. ‘There’s a fine line when it comes to breaking the law,’ says Jack Lakeman, whose family has owned and fished from dozens of boats over the years. ‘You’re trying to make a living.’”
An academic paper entitled “Rational noncompliance and the liquidation of Northeast groundfish resources,” published in 2009 by Dennis M. King of the University of Maryland and John C. Sutinen of the University of Rhode Island, stated that
“The results of a 2007 survey of fishers, managers, scientists and enforcement officials indicate that noncompliance is a significant problem in the Northeast multispecies groundfish (NEGF) fishery, as it has been for at least 20 years. The percent of total harvest estimated to be taken illegally is 12-24%…
“The deterrence effect of the existing enforcement system in the NEGF fishery is weak because economic gains from violating fishing regulations are nearly 5 times the economic value of expected penalties. For example, by fishing illegally a midsize trawler in the NEGF fishery is estimated to increase expected earnings per trip by $5,500. Fishing violations have a 32.5% probability of being detected, and enforcement data show that detected violations have a 33.1% probability of being prosecuted and resulting in a penalty. The average penalty assessed for a violation is $20,455 and the settlement amount averages 53% of the assessed penalty. The expected cost of a violation, therefore, is $1,166. When compared to the illegal gain, the economic incentive not to comply is $4,334 per trip.
“…normative factors favoring compliance in the NEGF fishery are weak because many fishers believe recent fishery management decisions were not justified and that planned stock rebuilding targets and schedules are arbitrary and unfair. Until this situation changes, more enforcement and more certain and meaningful penalties will be needed to improve compliance. Fishing restrictions will need to be tightened to achieve new legally mandated stock rebuilding targets. This will increase economic incentives for noncompliance in the fishery and require even more enforcement and more significant penalties to achieve adequate compliance rates. [emphasis added]”
People might think that such a rational analysis, made by qualified and disinterested persons, should have had a significant influence on policymakers.
However, anyone believing that would merely be demonstrating a profound ignorance of the fisheries arena, where politics, emotion and well-motivated greed will usually trump science, sound policy and reason.
In the real world, the Secretary of Commerce felt politically obligated to appoint a “Special Master,” in the form of a retired federal judge, to look into the fishermen’s claims of overly aggressive enforcement efforts. From all reports, such Special Master did an admirable job of digging into the allegations and interviewing witnesses, and he did find situations where search warrants may have been faulty and agents were truly overzealous.
Unfortunately, he seemed to lack a true understanding of the fishery described in King and Sutinen’s paper, and instead was clearly sympathetic to the fishermen, saying in his Report and Recommendation of the Special Master Concerning NOAA Enforcement Action of Certain Designated Cases
“[T]here is a siege mentality throughout the fishing industry. Fishermen and fish dealers believe they are treated like criminals. It is an ‘us against them’ mentality. The regulations are complex, complicated, constantly changing, and in some cases, contradictory. Fishermen are paranoid every time that they come ashore to offload their catch that they will be met at the dock by a Special Agent who will look for and find a violation of some obscure or even well known regulation. They feel that the offloading of their catch is fraught with peril…
“The regulators have recently suffered a similar plight as their past actions in enforcing the fishing regulations are under public attack. The Special Agents and Enforcement Attorneys feel that they are now under siege because in their minds they are being punished for merely doing their job. However, as the pendulum of public opinion swings away from them to the fishermen and fish dealers, they should recognize that in some cases, their past actions may have precipitated their current plight…”
As a result of his investigation, the Special Master rebated or reduced a number of the penalties previously imposed, and seemed to side with some folks who clearly and willfully violated the law.
One example of that occurred right here in New York, which is described in the Report as follows
“A Coast Guard officer noticed a false bulkhead made of foam in the aft part of the fish hold. Mr. Kokell stated that there were fuel tanks behind the bulkhead. Further inspection of the area revealed several boxes of summer flounder. There were a total of seventeen (17) boxes, of which two (2) contained monkfish and fifteen (15) contained summer flounder. When asked how long he had had the compartment, Mr. Kokell could not provide an exact date, but he stated that he had made no more than three (3) or four (4) trips with that compartment…
“Mr. Kokell admitted that he knew that the summer flounder season had ended. Finally, Mr. Kokell told the agents to ‘take his boat because he refuses to provide any additional information regarding his previous illegal actions.’”
The fisherman eventually settled for a $65,000 fine and a 6.5-month suspension of his federal fishing permits. However, after three years, he only paid about half of the fine; NOAA ultimately wrote of the remaining $30,000 of the penalty. Freed from that financial burden and with his fishing permits restored, the fisherman then had the temerity to complain to the Special Master that he was not being allowed to participate in the Research Set-Aside Program!
(Readers of this blog may recall that the Mid-Atlantic Fishery Management Council suspended the Research Set-Aside Program last August after some other fishermen disguised hundreds of thousands of pounds of illegal summer flounder as RSA landings, noting
”One of the chief concerns about the RSA program is that its current design makes it vulnerable to abuse through under-reporting and non-reporting of catch. Two recent investigations in New York by NOAA’s Office of Law Enforcement revealed that significant quantities of summer flounder were being taken illegally under the cover of quota acquired through the RSA program.”)
The fallout of the Special Master’s report echoed far from Gloucester. Long Island, New York based Newsday reported that, after the Commerce Department declined to review additional incidents of claimed enforcement abuse,
“Fishermen, wholesalers and U.S. Sen. Charles Schumer urged Locke to reconsider his decision, saying excessive enforcement and fines over more than a decade devastated lives and drove some fishermen off the water.
“Bonnie Brady, executive director of the Long Island Commercial Fishing Association, said Locke's decision denies local fishermen ‘closure.’
"’You need to look back at the past in order to move forward,’ she said, adding that denying them right to review bolsters the perception that the system is corrupt. ‘Bottom line: The fix is in.’"
But if you follow up on some of the comments made in that Newsday article, you come to realize that it’s not “the system” that needs some attention—or who “the fix” really favors.
For Newsday went on to report the reactions of people in the fishing business to the Commerce Department’s decision.
One, Mark Agger, President of Agger Fish Company, said
"[The National Marine Fisheries Service is] refusing to take responsibility for their actions"
That seems more than a little ironic given that after Agger Fish Company was fined $750,000 in 2006 for trading in 300,000 pounds of shark meat without a permit and illegally possessing fins from seven different protected species, Agger reportedly
“called the case trivial and not worthy of a reply.”
When contacted by Newsday, his attorney supposedly said that
“Agger didn't realize his permits were expired, because permit rules had changed. He said they agreed to the settlement in part because fines for expired permits would have been thousands of dollars more.
"’You make one mistake and act in accordance to that mistake and the error is perpetuated,’ he said. ‘Mark wasn't told that he was missing a permit.’
“Addressing the prohibited fins fine, Ouellette said species are frequently added and taken off protection lists.”
Is that an example of “taking responsibility”?
Another fisherman, Charlie Wertz, was quoted by Newsday as saying that NMFS
“should give back those excessive fines. That would be the right thing to do."
It’s not clear from the article whether the “Charlie Wertz” quoted was the late Charles Wertz, Sr., a Freeport commercial fisherman, or his son, Charles Wertz, Jr. However, a press release issued by NMFS about a year ago noted that
“Charles Wertz, Jr. pled guilty in federal district court to one count of wire fraud and two counts of falsifying federal records. His company, C&C Ocean Fishery, Ltd., pled guilty to one count of wire fraud and three counts of falsifying federal records. Though the final sentence is up to the Court, the defendants have agreed to pay between $480,000 and $516,000 in combined fines and forfeitures and will undergo multiple sentence conditions, including relinquishment of federal fishing permits, a ban on participation in the RSA program, and shutting down C&C Ocean Fishery…
“Wertz manipulated the system by purchasing set-asides for fluke (also known as summer flounder) but underreporting the total catch. He used C&C Ocean Fishery to file false federal dealer reports that matched what was filed from his fishing vessel. The information submitted to NOAA on catch weights and fish species was false.
“…Agents worked with the Department of Justice Environmental Crimes Section to obtain and execute search warrants leading to the documentation of more than 86,000 pounds of unreported catch worth nearly $200,000.”
Given those facts, it’s not hard to understand why the guy might have been leery of enforcement agents…
And it’s not hard to understand what motivates the attacks on law enforcement efforts.
Still, those attacks go on.
Also here in New York, Daniel Rodgers, an attorney representing East Hampton fishermen, is seeking legislation that would limit the ability of enforcement agents from the Department of Environmental Conservation to inspect and, if they find any illegality, seize a fisherman’s catch.
He seems to have little concern that such restrictions would make it extremely difficult to detect and prosecute illegal harvesters, since fish can be easily moved and thus can be spirited away before any sort of court order to search the fisherman’s property can be obtained.
As in Gloucester, local lawmakers more concerned with votes than the future viability of New York’s fisheries have jumped on the bandwagon, trying to convince the state legislature to pass a “Fishermen’s Bill of Rights.” So far, rationality has prevailed and the bill has gone nowhere.
In the meantime, Rodgers has, through Assemblyman Fred Thiele, convinced the New York State Inspector General to investigate the DEC’s law enforcement activities.
He is also trying to prevent law enforcement from selling illegally harvested fish, and instead would require them to find some sort of storage for what could be very large quantities of seafood pending trial.
Rodgers seems to have little concern for how such a requirement would affect law enforcement efforts or the health of fish populations, commenting that
“’Part of the argument is, what is the alternative. If any officer attempts to confiscate fish, shellfish, lobsters or any other food fish how will they keep it for trial? Well, frankly, that is not my problem. If you are going to confiscate someone’s fish as evidence for trial in a criminal case, the law says you must keep it safe until a determination is made by court. That is called due process.”
Finally, down in North Carolina, we see the same problem take on yet another face.
The North Carolina Division of Marine Fisheries is seeking to enter into a joint enforcement agreement with the National Marine Fisheries Service, which among other things, would provide the state with an additional $600,000 for fisheries enforcement and allow both state and federal enforcement agents to address fisheries violations in either state or federal waters.
The $600,000 was included in the last state budget but
“Six weeks ago, Daniel [Director of the DMF], Skvarla [Director of the DMF’s parent agency], [Governor] McCrory, Rep. Thom Tillis (speaker of the state house and a candidate for the U.S. Senate) and Sen. Rep. Phil Berger (president of the state senate) received a letter from 10 Republican legislators expressing their opposition to the JEA, despite its having been part of the budget that was passed by both Republican-controlled houses of the legislature.”
Once again, it seems that fishermen aren’t very fond of enhanced enforcement efforts, and politicians are right there to pander to their concerns.
“In the Senate, we haven’t supported the gamefish bill and the joint enforcement bill. said Sen. Bill Cook (R-Beaufort).
Once again, protecting the fish, and the public interest in healthy fish stocks, from those who violate the laws didn’t seem to be much of a consideration.
Politicians are supposed to look out for the public’s interests, not the interests of folks who abuse publicly owned fisheries resources. But up and down the east coast, that’s not what’s happening.
Instead, politicians are looking out for the poachers, seeking to use their influence to pass legislation and intimidate regulatory agencies, to make the law enforcement effort as difficult as possible.
And it’s all going on under the radar, with most of the media, if they report the story at all, emphasizing alleged government abuses of fishermen and ignoring the fishermen’s demonstrated abuses of various fisheries.
That’s not the way that it’s supposed to be.
The first step in fixing the problem is to acknowledge that it exists...