Thursday, July 28, 2016

WHO HAS THE RIGHT TO MANAGE RED SNAPPER?

Louisiana Congressman Garret Graves is the primary sponsor of H.R. 3094, legislation that would strip the National Marine Fisheries Service of its authority to manage red snapper in the Gulf of Mexico, and to turn that authority over to the five Gulf states.

Rep. Graves has provided a number of justifications in support of such bill, ranging from the alleged inaccuracy of federal fisheries data to a presumption that anglers would have better access to a state-managed resource. Recently, in a Facebook post, he came out and baldly said, “This is about state’s rights.”

And that is just wrong.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) clearly says that “the United States claims, and will exercise in the manner provided for in this Act, sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone…”

However, Magnuson-Stevens also says that “Except [for situations where state regulation will substantially and adversely affect a fishery management plan for a fishery predominantly prosecuted in the exclusive economic zone], nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”
Such language, combined with provisions of the federal Submerged Lands Act, which grants coastal sovereignty over natural resources, including fish, located within three miles of their coastlines (and within three marine leagues of the coastlines of Texas and the west coast of Florida), may have led people to believe that the states have an inherent right to manage coastal fisheries, whether in state or, as Rep. Graves asserts, in federal waters.

A review of court decisions shows that such belief is unfounded. The federal government, and not the states, has primary jurisdiction over the fish that swim off our coast.
That was made clear in the Supreme Court decision United States v. California, where the Court noted that

“At the time this country won its independence from England there was no settled international custom or understanding between nations that each nation owned a three-mile water belt along its borders…when this nation was formed, the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but a nebulous suggestion. Neither the English charters granted to this nation’s settlers, nor the treaty of peace with England, nor any other document to which [the Court had] been referred, showed a purpose to set apart a three-mile ocean belt for colonial or state ownership…
“It did happen that shortly after we became a nation our statesmen became interested in establishing a national dominion over a definite marginal zone to protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world…That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact.
“Not only has acquisition, as it were, of the three-mile belt been accomplished by the National Government, but protection and control of it has been and is a function of national external sovereignty. The belief that local interests are so predominant as constitutionally to require state dominion over lands under its land-locked navigational waters finds some argument for its support. But such can hardly be said in favor of state control over any part of the ocean…”
The decision completely undercuts Rep. Graves’ state’s rights assertion, saying
“Conceding that the state has been authorized to exercise local police power functions in the part of the marginal belt within its declared boundaries, these do not detract from the Federal Government’s paramount rights in and power over this area…national interests, responsibilities, and therefore national rights are paramount in waters lying to the seaward [of the low water mark] in the three mile belt.”
Although United States v. California dealt with mineral rights rather than fisheries regulation, the language of the decision, which speaks of “national dominion” and the nation’s “paramount rights…in waters lying…in the three mile belt” makes it clear that it applies to natural resources that reside within, and not merely beneath, such waters.

Another Supreme Court decision, Skiriotes v. Florida, makes it clear that a state’s authority to regulate fisheries in federal waters is limited to situations where the federal government has chosen not to regulate the fishery in question. Even then, a state may only regulate the actions of its own citizens, and not the citizens of any other state.

Thus, Rep. Graves’ state’s rights argument is shown to be completely false. It seems to spring from the same kind of false assumptions that have led some of his colleagues to call for “returning” ownership of vast tracts of federal land to a number of western states. Just as such land belonged to the federal government before the states ever existed, making the notion of “returning” it to the states nonsensical, so did the federal government have dominion over the three-mile coastal sea before the states ever tried to assume such control.

Another, even more basic, consideration militates against Rep. Graves’ state’s rights claim.
Article I, Section 8 of the Constitution of the United States gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts have construed that so-called “Commerce Clause” very broadly, with one landmark Supreme Court decision holding that even a few bushels of wheat, grown by a farmer for his personal use, are subject to federal regulation.

If that is the case, then the Gulf of Mexico red snapper fishery, which generates commercial landings worth $11.5 million annually, that are subsequently shipped throughout the nation, and also supports a recreational fishery that contributes no less than $61.6 million to the gross domestic product while playing a significant role in the interstate tourism industry, certainly falls within the Commerce Clause’s ambit.

Thus, the Constitution, federal statutes and the common law make it clear that red snapper management is not a “state’s rights” issue at all, but rather an issue that is, first and foremost, a federal concern.

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This essay first appeared in "From the Waterfront," the blog of the Marine Fish Conservation Network, which may be found at http://www.conservefish.org/blog/

Sunday, July 24, 2016

DIMINISHING RETURNS

Our local waters are getting too hot for sharks, and our local canyons are mostly quiet.  This morning, I decided to fish inshore and try to put something in the freezer, rather than run deep and look for the big fish that probably weren’t there.

The problem is that the inshore fishing has been pretty spotty, too.

There are a few summer flounder around, but although some big fish are being taken, four consecutive years of poor recruitment has significantly reduced the number of legal fish landed by anglers.  

Poor spawns took place in every year from 2010 through 2013.  It takes a summer flounder about 4 years to grow larger than the 18-inch minimum size so, at best, things will get worse until 2018.  

Although 2014 still provided a lot of good fishing, probably thanks to strong recruitment in 2008 and 2009, things went downhill quickly in 2015, with anglers landing only about two-thirds of the fish that they had harvested the year before.

This year, we’re in the heart of the drought caused by the recruitment decline, and fishing feels even worse than it did last season.

Thus, I figured that I’d run out to a few wrecks that lie in 80 to 100 feet of water and look for some survivors from the ’08 and ’09 year classes.  Big fluke like to hunt the edges of the wrecks’ rubble piles, where they have a good chance to snatch a small sea bass, porgy or other fish attracted to the structure.

Most seasons, I’d have left the fluke alone and fished the wrecks for black sea bass, but after New York dropped the bag limit down to just 3 fish, running 15 miles or more for that few fish didn’t seem to be very worthwhile.  The shot at a few big fluke, perhaps even a legitimate “doormat” of 10 pounds or more, made the run a lot more appealing. 

I was hoping to have at least one or two of the wrecks to myself, believing that the meager sea bass limit would deter most anglers from running that far.  As drew within three miles or so of the first piece, I could see a couple of dark spots on the horizon; at least two other boats had decided to make the run.

That was still OK.  Both boats were drifting the structure, and as the wreck had broken up into three distinct pieces, we could all stay out of each other’s way and still manage to catch a few fish.  I started to bait up my line, and saw two more boats on the horizon, headed my way.

By the time that I started my first drift, two more boats drew closer.

It wasn’t long before seven boats, including mine, were all trying to fish the same small piece of bottom.  The crowd made it impossible to make the sort of precise, just-brushing-the-wreck sort of drifts that produce most of the summer flounder. 

However, that didn’t seem bother anyone but me, because I appeared to be the only fluke fisherman on the wreck.  

Everyone else, despite the low bag limit, was apparently targeting black sea bass.  And it seems that a lot of boats have been targeting black sea bass on that wreck since the season opened a month ago, because the fish were very picked-over.  Almost all were small, below the legal size limit; any big fish that had been there were gone.

Even so, there were more boats fishing for black sea bass on that wreck this morning than I had ever seen there before, including the years when the bag limit had been five times higher and it wasn’t uncommon to catch two quality fish at a time, each a big knucklehead male that weighed between three and four pounds.

I’m not sure what it means when that many anglers are willing to spend between $50 and $100—perhaps more—just in fuel, plus bait and tackle, to catch a mere 3 sea bass per person.

Optimists might say that it’s a good sign, proving that people are more concerned with the act of angling, and aren’t feeling the need to come home with a load of dead fish.

Pessimists—include me in that number—are more likely to say that it just shows that people aren't concerned with the law, and will fill up their cooler with undersized fish, knowing that the odds of getting caught are slim.  I will note that while I was drifting, I saw a lot of black sea bass get caught, and saw very few go back into the water.

More broadly, it certainly says that the fluke fishing is bad; people aren’t going to run 15 miles for 3 black sea bass if they can catch 3 similar-sized—or larger—fluke closer to home.  And it shows that the artificial reefs outside each inlet are probably picked-over too, because if they weren’t, folks would stay and fish there.

And it gives us another indication of just how perilously balanced our local recreational fishing industry is right now. 

The summer flounder fishing isn’t very good, so more people fish for black sea bass.  Black sea bass are abundant, but because of strict regulation, folks can’t take too many home.  Yet, for the moment, they’re willing to settle for whatever they can (legally or illegally) have.

In some places, the very abundant scup are taking up the slack, but on the South Shore, scup fishing is spotty; some days, there will be a lot of decent-sized scup on a wreck, but on other days—such as today—there won’t be any at all.  

In the old days, bluefish were always a summer standby, but lately, they’re hit-and-miss, too.  Summer weakfish are largely a think of the past, while summer striped bass, always a nighttime proposition, are largely gone from the South Shore as well.

And that explains why the fishing industry ought to be more concerned with conservation issues, rather than how many fish they can kill.  Right now, New York’s marine fishing industry stands on a shaky tripod, with one leg made of striped bass (which may be rebuilding slowly), one of summer flounder (which may be in decline) and one of black sea bass and other, lesser stuff.

The striped bass leg has gotten pretty weak; there are some fish at Montauk, but few elsewhere.  Poor recruitment has weakened the summer flounder leg as well.  From what I’m seeing on the water, black sea bass are probably carrying a lot of the industry right now.


That means that we need to conserve them, and make sure that overfishing doesn’t occur.  For if it does, and should the black sea bass also decline, the tripod that holds up the recreational fishing industry could well collapse.

And that would be a very bad thing.

Thursday, July 21, 2016

BY THE NUMBERS

If you’ve gone to enough fisheries management meetings, you know the routine.

First, biologists will address the public, and describe the state of the stock, providing numbers for biomass, recruitment and fishing mortality.  They’ll then recommend regulations that, they believe, will prevent overfishing and allow the stock to rebuild or, if the stock has already reached its biomass target, maintain it at sustainable levels.

At that point, the debate begins.

Inevitably, someone—generally someone with no background in either science or statistics—will rise to critique the stock assessment, supporting his position with arguments like

“Your numbers are no good.  You don’t know what you’re talking about.  You just sit behind a desk while we’re out on the water every day.  There’s plenty of fish out there.  Come out with us, and we’ll show you how to catch ‘em.  You shouldn’t be trying to cut back our harvest; there’s so many fish out there, you should be letting us catch more!”
It doesn’t matter too much where you are or what species you’re talking about; Gulf of Maine cod, mid-Atlantic black sea bass or South Atlantic red snapper, when you go to a meeting, they all sound just about the same.

It might be useful, then, to take a look at some recent stock assessments, and compare them to what is really going on out on the water.  I’m going to limit my comments to species commonly found in my home waters off Long island, because I follow those fish more closely, and can more easily provide reports of what’s going on.

I’ll start with scup—our northern porgy—because that’s one of the easiest fisheries to address.  It was considered a data-poor fishery as recently as 2008.  For a while, it gave managers a hard time; fish were sparse and small.  Biomass bottomed out around 4,000 metric tons during the mid-1990s.

Fortunately, a good stock assessment model was finally devised, and the Mid-Atlantic Fishery Management Council implemented a rebuilding plan that was so wildly successful that a benchmark stock assessment released in 2015 reported that

“Spawning stock biomass (SSB) was estimated to be 182,915 mt in 2014, about 2 times the…biomass reference point SSBMSY Proxy = SSB40% = 87,302 mt.”
If the stock is truly twice the size of the biomass target, anglers should be catching plenty of scup, and that’s exactly what’s happening.  A report in a Riverhead, New York publication was typical:

“The bite was all day long.  As soon as things slowed, we would just move to find another pile of fish.  Toward the end of the day, the wind turned south and picked up quite a bit.  This worked like a dinner bell for the porgies.  The bite ramped up to lights out status…”
So it certainly seems like the biologists got their scup numbers right.   

But maybe scup are too easy, because there are plenty around.  The numbers for other popular species, such as fluke and striped bass, aren’t quite so optimistic.  Did the scientists get those right as well?

There was quite a bit of displeasure last year when managers announced that the 2016 recreational summer flounder catch limit was going to be substantially reduced.  Brook Koeneke, who operates a New Jersey party boat, reportedly had a predictable reaction to the news.

“I’m convinced that they don’t know what they’re talking about.  We see a lot of flounder.  We raised the (size) limit and saved a lot of fish.  It looks like it recovered and then the next year they say we have a problem.”
So the question is, just why do managers believe that a problem exists?

It turns out that the problem was a combination of overfishing and poor recruitment.  For four consecutive years, 2010 through 2013, the number of young-of-the-year summer flounder entering the population was well below average.  Harvest had to be reduced, because flounder removed from the stock today won’t be replaced by new fish recruiting into the fishery next year.

Do anglers’ experience on the water reflect what the scientists believe to be true?

It apparently does.  Early June is peak time for fluke in Connecticut waters, but a report put out by the state’s Department of Energy and Environmental Protection on June 2 rates the fishing as only “fair to good.”  A New Jersey report from the same time period also talks about summer flounder fishing being “spotty at best,” and “very hit or miss.”  Another section of the same report says that fluke fishing in southern New Jersey is “not what it has been in some other early Junes.”

My own success with summer flounder has been far below average this season, with few fish being caught on what are typically productive drops.  A charter boat captain from Montauk whom I often speak with tells me that he is seeing a good number of large fluke, but not many smaller ones, which would be typical of a fishery with poor recent recruitment, that is forcing anglers to depend, at least in part, on the bigger, older survivors of the larger year classes produced in 2008 and 2009.

Once again, what’s happening on the water seems to match the biologists’ predictions.

And finally, we come to striped bass.

Chesapeake Bay produced big year classes in 1993, 1996, 2001, 2003, 2011 and 2015.  In the Hudson River, 2007 produced a very strong year class, and I have been told by folks at the New York State Department of Environmental Conservation that 2014 was above-average, as well. 

At the same time, a 2015 update to the striped bass stock assessment said that there was a 49% chance that the stock could have become overfished last year.  So while we’ve seen some strong year classes, the overall population is not at a high level of abundance.

So what do anglers see on the water?

Over all, experienced anglers are seeing a real decline in the number of fish available.  At the same time, a lot of big fish are being caught, including a 62-pounder that hit a trolled bunker spoon east of New York’s Fire Island Inlet.  However, there aren’t a lot of fish in one place.  When action was hot in New York Bight, it was slow farther east on Long Island.  Later in June, the big-fish action moved into my region of South Shore Long Island, but waned to the west while Montauk remained dead.

Now, bass have disappeared almost completely on the central South Shore, but have settled in at Montauk and Block Island, with one party boat operator reporting

“EPIC striped bass fishing aboard the Viking Starship tonight.  We had a sold out crowd and our anglers enjoyed and our anglers enjoyed a full boat limit of mighty moo cow Bass!  Most fish were in the 25-35 pound class, with a few smaller and a few bigger!  …the pool fish [was] a 43.9 pound Behemoth Striped Bass…the second place winner…was 39.8 pounds.”
Again, that’s about what one would expect from the data available.  There are only enough bass in the population to provide decent fishing in a few localities, and most of the fish caught can be attributed to one of the big year classes.  On the Viking Starship, the majority of the catch, 25 to 35 pound fish, were probably produced by the 2001 and 2003 year classes.  The 62-pound fish caught off Fire Island was likely a ’93.

But the smaller fish are showing up, too.  Here on Long Island, the 2011 year class began to show up in numbers in 2015, and reports indicate that they were also present up in New England.  They were back with a vengeance this spring, particularly in New York Bight and in western Long Island Sound, where the small, 22 to 26-inch fish were joined by a few in the 13 to 18 pound range, which were probably 2007s from the Hudson River.  We also saw a lot of menhaden-sized stripers along the western Connecticut shore, which were almost certainly spawned in the Hudson in 201A4.

Once again, the science predicted the sort of striped bass fishing that we’d experience.

That being the case, claims that the biologists’ “numbers are bad” don’t really ring true.  The stock assessments and similar data are usually very good predictors of what we will see on the water. 

Yes, there are areas of local abundance when populations are down, and places that fish sometimes avoid even when they’re abundant.

But over the long haul, you won’t go very wrong if you predict your likely success based on the numbers that the scientists provide.  Although some folks refuse to believe it, those numbers are usually right.






Sunday, July 17, 2016

DUBIOUS ASSUMPTIONS

In a perfect world, biologists wouldn’t have to estimate the size of fish stocks.  Someone would design a method that would count the number of fish, within 5% or so, with absolute reliability that works across the full range of species.

In that same perfect world, anglers’ catch would be fully documented.  Everyone who went fishing would report all of their catch—even when they caught nothing at all—using an application that would calculate landings, catch per unit effort, mode and landings compositions, and how everything changes year to year.

But we live in an imperfect world. 

Stock assessments contain imperfections, even those for data-rich stocks such as striped bass.  When dealing with data-poor stocks such as black sea bass, managers are nearly flying blind.  And when it comes to estimating anglers catch, fishery managers are trying hard to improve their accuracy, but still have a long way to go.

However, managers have to do their job with the information on hand.  That means that, at times, they have to use the best available data, coupled with a large degree of caution, to keep healthy stocks healthy and to rebuild those that have become overfished.

At times, that makes fishermen unhappy, particularly when very conservative management measures are imposed to prevent overfishing what people perceive to be a very abundant stock.

One of the best examples of that is black sea bass.  In the northeast and mid-Atlantic, black sea bass abundance appears to have increased substantially.  Anglers are catching far more than they used to, and voices in the recreational community frequently complain that regulations are far too restrictive.

Fisheries managers fall back on available data when trying to craft regulations.  They know, and will freely admit, that better data is needed to manage the black sea bass fishery, and hopefully, after a benchmark stock assessment is completed late this year, at least somewhat better data will be available.  Until then, they will try to do the right thing with the tools that they have.

Anglers, on the other hand, have no legal responsibility—moral responsibility, of course, being something else altogether—to manage the stock for sustainable harvest and future abundance.  All that a lot of them know is that they see a lot of fish when they go fishing, and want to be able to up their kill.  

Businesses that serve such anglers are also pretty quick to condemn managers’ efforts, since they imagine greater profits flowing from bigger fish kills.  Maybe the best example is a local party boat captain who complained about one of my blogs, telling me that

“Your [sic] a disgrace.  Your scientific bullshit is putting our sea bass fishery in the toilet.”
Now, I probably should point out that it’s not my “scientific bullshit.”  

I’m not a biologist.  I just know some biologists, and read the work put out by others.  I have, over the years, developed a real respect for some very bright people who do a very tough job for a very small financial reward. I just report what they say.

They know that their work isn’t perfect.

We all know--or, at least, we should--that it’s the best work that the available data and funding allow.

And we should admit that, with all its imperfections, it’s quite a bit better than what the anti-science folks would have us depend on, which are essentially any assumptions, unsupported by data, that would support their argument to relax regulations.

More restrictive black sea bass regulations have seen those assumptions spew out at a fever pitch.  They’re numerous and, ever so often, sort of amusing.

As a rule, the assumptions deal with estimates of recreational harvest, either the old Marine Recreational Fisheries Statistics Survey, generally referred to as “MRFSS”, or the work-in-progress “MRIP”, which is short for “Marine Recreational Information Program”. 

The assumptions usually arise out of the fact that no statistical estimate is perfectly precise—there is always some acknowledged level of error—and the fact that MRFSS, in particular, contained a number of statistical flaws.  Folks with no real knowledge of statistics, and no desire at all to learn how things actually work, will harp on such inherent errors to smugly assume that any data coming out of MRFSS or MRIP that doesn’t support their notion of what the facts should be must be wrong.

I was reminded of that the other day.

The folks at MRIP were reviewing data before finalizing 2015 harvest numbers, and determined that the preliminary landings estimates for black sea bass seemed to be low.  The revised harvest estimate was 16% higher, when based on the number of fish, and 9.6% higher, based on weight, than the preliminary numbers, which meant that 2016 regulations, already very restrictive, were theoretically not restrictive enough. 

That obviously caused a furor, and that’s when the assumptions kicked in.

For years, Capt. Monty Hawkins, who owns and operates a Maryland party boat, has been attacking black sea bass regulations, for various reasons. 

He has long assumed that the decline in the abundance of the black sea bass off Maryland has nothing to do with warming water temperatures, as the National Marine Fisheries suspects, but on more restrictive regulations that ultimately suppress spawning success. 


“When sea bass perceive they’re under pressure at reefs close to inlets where fishing pressure is heaviest and therefore begin spawning at the youngest age possible; more distant reefs become overpopulated owing to nearshore overproduction.
“Hence ‘surplus production, which is at the very heart of fisheries management.
“Surplus production is what allows us to take any fish at all.  A true understanding of spawning production, and not grasping convenient popular theory, is what will make or break today’s early attempts at marine fisheries management.
“The evidence for elevated production is made plain in sea bass management’s earliest years.  Scientists who manage dozens—dozens—of other fisheries scoff and blame it on a ‘lucky year’ in production.”
But Capt. Hawkins doesn’t buy the 'lucky year' hypothesis for a minute.  Fortunate enough to lack scientific training, or years working with similarly trained colleagues in the scientific field, he knows what the real problem is.

We taught sea bass not to spawn until age 3 & the population plummeted.
A lot of folks are happy to have Capt. Hawkins around to explain that, because they know that you’d never hear a scientist say that we’d have more black sea bass around if the size limit was dropped to nine inches.  Yet the good captain’s assumptions of why there used to be more fish off the Maryland shore clearly shows that it’s true…

He also loves to attack MRIP, and particularly its estimates of private boats’ recreational harvest, saying things such as

“MRIP is making regulators crazy.  The tragedy is unfolding before our eyes as recreational fisheries are closed.
“I’m digging—looking.  Re-reading old works.  What on earth can I possibly use to show management how utterly bizarre their belief in MRIP’s catch estimates seem to us?  This stuff is just NUTS to anyone working in the recreational fishing trade.  There’s just No Way Private Boats from one state can outfish all US Party/Charter.  It’s doubtful any one state’s Private Boats catch more sea bass than just their own state’s Party/Charter fleet.  But NOAA believes the estimates.  After all, they paid for them ..and then get paid to use them…”
With respect to the for-hire estimates, Capt. Hawkins complained that

“The good news is that someone at NOAA is actually looking at [Vessel Trip Report] Catch Reports.  These are not broad two-month Catch Estimates.  We report, on a NOAA form, what we land everyday.  Be nice if management were told what those reports say instead of MRIP’s nonsense.”
Capt. Hawkins wants to see black sea bass regulations relaxed, so he makes an argument that MRIP’s numbers are bad, and that private boat anglers caught less than estimates show, saying that “It’s doubtful any one state’s Private Boats catch more sea bass than just their own state’s Party/Charter fleet.”

What if he’s right—just not in the way that he intended?

It appears that may well be the case.

Capt. Hawkins, in making his argument, never seems to consider the possibility that the private boat estimates aren't too high, but instead, that the charter boat estimates were far too low, although that seems to be what’s driving the revised numbers for 2015.

Moreover, the finding that charter boat landings were higher than originally believed came from the MRIP folks doing exactly what Capt. Hawkins wanted—incorporating vessel trip report data into the landings estimates.

It’s going to be tough for him to contest numbers derived, at least partially, from a procedure that he endorsed, but I won’t be surprised if he tries.

Because that’s how it is with assumptions.  You always assume that you’re right, even when the data says otherwise.

And it’s not just Capt. Hawkins who makes assumptions that, to be kind, are not robustly supported by data.  He just leaves a good written record that contains some fine quotes.  

At the most recent meeting of New York’s Marine Resources Advisory Council, another perennial critic of MRIP estimates got up and asked something like

“How could New York’s charter boat landings be eight times higher than they were in past years?”
I felt like saying

“Maybe they finally got it right,”
but saw no reason to toss gas on that particular fire, even though my answer might well have been true.

The bad news is that there is still a real chance that the MRIP numbers will be further revised; the good news is that New York will be supervising the data gathering within the state this year, and it is very likely that a lot of the bugs missed by the federal contractors will be corrected by folks familiar with our local fishery.

Of course, that won’t fix the problem, since folks who make baseless assumptions also assume that anyone they disagree with is wrong.





Thursday, July 14, 2016

OF FAIRNESS, EQUITY AND SIMILAR FANTASIES

There are seldom enough fish to go around.


Most of the time, things aren’t that easy, and some difficult decisions need to be made about who gets how much of the harvest.  

That “who” might be a sector, either recreational, commercial or for-hire.  It might  be a sector subset, such as fixed-gear commercials as opposed to the trawlers, or even shore fishermen pitted against folks in boats.  Or it could be fishermen in one state or region, who are advantaged—or disadvantaged—when compared to folks somewhere else.

Usually, such conflicts are resolved without too much pain, leaving everyone’s feelings a bit raw and bruised, but no one all that annoyed.

But sometimes, when fish are few and demand is high, allocation fights can get a bit brutal as emotions run high and people on all sides of the issue become particularly quick to take offense.

It doesn’t help that the laws provide fishery managers with little guidance on how to allocate landings.  Managers are pretty well running blind.

The guidelines that they’re supposed to follow typically sound a lot like the Magnuson-Stevens Fishery Conservation and Management Act’s National Standard 4, which provides, in part, that

“…If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen…”

“in the event that fishery conservation and management require actions that result in resource allocation impacts, the state shall endeavor to assure such allocation impacts are distributed equitably among user groups, giving priority to existing fisheries within the state.”
But just what does a concept such as “fair and equitable” mean?

A kid who gets the “bigger half” of a cookie always believes that the distribution is scrupulously “fair,” while the other kid will express real doubts about the whole process.

Maybe we should ask the apes.  

At least one study has shown that chimpanzees have developed a sense of “fairness.”  When two chimps are placed in an enclosure and given different pieces of food, the chimp that received the more desirable morsel will usually refuse to eat it, rather than take advantage of an unfair situation. 

Humans, having evolved a little further, rarely take fairness that far.

Fishermen start out as kids, and are most definitely human…

That was well-illustrated in New York this spring, during the debate over recreational black sea bass regulations.  A lot of fish had been caught the previous year, and it was clear that, if overfishing was to be avoided, a substantial reduction in harvest had to be imposed.  But who would shoulder the burden of such reduction?

The Department of Environmental Conservation proposed a plethora of possible combinations of size limit, bag limit and season, and left it up to the recreational community, and their representatives on the Marine Resources Advisory Council, to figure out which one would be the least objectionable.  In the end, the choice came down to two.

One option would increase the size limit from 14 to 15 inches, and reduce the bag limit from 8 fish to 5 for the months of July and August, while retaining the 8 fish bag limit in September and October and the 10 fish bag in the last two months of the year.  The start of the season would be moved up one week, from July 15 to July 8.

The other option was similar; however, it would decrease the July/August bag limit from 8 fish to 3, in exchange for a season that began on June 27.

Public opinion was split. 

Folks from the eastern part of Long Island thought that the 5-fish bag was the better option, while those from Long Island’s West End wanted the 3-fish bag and the longer season.  

Those who wanted the bigger bag argued that anything less than 5 fish destroyed the directed black sea bass fishery, would hurt the for-hire business and make trips out to offshore wrecks impractical.

Folks from the West End countered with claims that the early season was more productive, that 3 fish were enough to support a mixed-bag fishery and that West End party boats were competing with those in New Jersey, which enjoyed an earlier start to the season, a smaller size limit and a bigger bag.

Both sides had their points.  

In the end, the Marine Resources Advisory Council voted, 6-4 with a few abstentions, for the 5-fish bag.

And that’s when the wailing about fairness began, with people complaining that the Advisory Council vote was dominated by the council’s commercial members, and that a bare majority of the recreational reps favored the 3-fish bag and longer season.  

For a while, conversations got heated and personal.

The poor folks at DEC were screwed either way, because no matter what they decided, someone would inevitably whine.  They ultimately agreed with the West Enders, and overturned the Advisory Council’s opinion, claiming that

“DEC is moving to adopt regulations that provide New York’s anglers with appropriate and equitable access to [the recreational black sea bass] fishery.  [emphasis added]”
At which point the West Enders celebrated while the folks on the East End complained that things were unfair.

But looking at things from an east/west perspective was only one way to view the issue.  It had a seasonal aspect as well.  

Different people fish for black sea bass at different times of the year.  July and August see a lot of casual, “family” fishermen, enjoying their time on the water while the weather is nice.  A lot of them stay off the ocean in September and October, when the wind starts to blow; the late-season fishery in November and December sees even fewer casual anglers, and is dominated by hard-core bottom fishermen who board party boats venturing out to deep-water wrecks.

Under the rules that New York adopted, most of the conservation burden was placed on the shoulders of the summertime family fishermen, who saw their bag limit reduced by more than 60%, while the bag limit of the more serious anglers who fished in cooler weather wasn’t reduced at all.  

To the fair-weather anglers, “equitable access” might mean a bag limit of 3, 4 or 5 fish that ran throughout the season, from the day that it began until December 31.

Yet the party boats would deem that “unfair,” because fewer people would sign up for deep-water trips if the bag limit was cut from 10.

As I said, the DEC was screwed from the start.  Whatever they did would make someone unhappy.

Which helps to explain why “fairness” and ‘equity,” as nice as they sound, aren’t really good standards at all.  The recreational fishery is not monolithic, but fractured in all sorts of different ways.  Finding a solution that everyone accepts as “fair” is nearly impossible.  Even so, state and federal statutes both currently require that managers try.

The law should embrace more realistic solutions.  Favoring existing fisheries, as mentioned in New York’s Environmental Conservation Law, is one way to go.  So is finding a solution that works for the greatest number of anglers.  And if neither of those is appropriate, then maximizing the economic value of the fishery could be the right option.

Whatever the answer, laws ought to be changed, because trying to be “fair” is a very poor way to manage a fishery.


Sunday, July 10, 2016

RETHINKING MARINE PROTECTED AREAS

When various conservation organizations began pushing the concept of marine protected areas (MPAs) back in the late 1990s, I didn’t like the idea at all.
Back then, the MPAs being proposed were, with few if any exceptions, so-called “ocean wilderness areas” where no consumptive activities, including catch-and-release fishing, would be allowed. Advocates of such MPAs often said that they wanted to lock up 20% of our coastal waters, without much thought as to why or whether any particular place should be placed off-limits to fishing of any kind.
I still believe that the arbitrary creation of ocean wilderness areas is a bad idea.
It has become a clich├ę in the conservation community that “You only conserve what you love, you only love what you know, and you only know what you are taught.” Yet however clich├ęd that statement may be, I believe that it applies to marine conservation. I also believe that the best way to get large numbers of people to know, and ultimately to love, the marine environment is to take them fishing.

I believe that no-take marine reserves, which by their nature deny people a hands-on familiarity with marine resources, are, in the long run, counterproductive.
Yet I still support MPAs, because the term “marine protected area” encompasses a lot more than no-fishing zones. The National Oceanic and Atmospheric Administration (NOAA) has embraced a broad definition of “any area of the marine environment that has been reserved by federal, state, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural or cultural resources therein” as an MPA.

Thus, the gear restricted areas (GRAs) established by the Mid-Atlantic Fishery Management Council, which prohibit small-mesh trawls that threaten the survival of juvenile scup, can be considered a sort of MPA. So can the groundfish closed areas up in New England, where cod, haddock and other species may be caught on hook and line, but not by non-selective otter trawls.

Yet too many times, anglers who are quick to support such restrictions are also quick to say that they oppose MPAs. It is time for them to rethink that opposition.
While MPAs that arbitrarily close sections of ocean to all fishing activities are usually a bad idea, those that are tailored to address a specific problem or protect a particular resource can be extremely beneficial to anglers.
Nothing is more important to anglers than an abundance of mature fish. That being the case, MPAs that protect important spawning and nursery areas are a clear benefit to recreational fishermen.
Thanks to the GRAs established in the mid-Atlantic, anglers fishing between New Jersey and Massachusetts are enjoying a spectacularly good scup fishery. Abundance is more than 200% of the target level; and many of the scup being caught are the sort of large, mature fish that are characteristic of a healthy population.

The South Atlantic Fishery Management Council recently asked the National Marine Fisheries Service to designate five areas between North Carolina and the Florida Keys as “Spawning Special Management Zones”(SMZs). Within the SMZs, which range from 3 to 5.1 square miles in size, bottom fishing and anchoring would be prohibited. However, nothing would prohibit anglers from trolling for billfish, tuna, dolphin or other pelagic species in the upper portion of the water column.

The SMZs are intended to protect fish belonging to the snapper/grouper management complex, and so increase recruitment. Such increased recruitment should result in more fish being available to anglers outside of the SMZs, and better assure that such fish will remain abundant well into the future.
MPAs can also be used to protect unique habitats. Off the coast of New England, fragile deep-water corals remain vulnerable to the effects of trawls and other bottom-tending fishing gear. Additional perils are posed by the possibility of energy exploration and development efforts. To prevent damage to the corals, a number of conservation groups are urging the President of the United States to declare certain seamounts and submarine canyons as a National Monument.

Although such corals are located more than 150 miles from shore, where little fishing takes place, fishermen are expressing concern that they will be excluded from any monument that may be created.
The American Sportfishing Association, which represents the recreational fishing industry, claims that conservation groups are trying to turn the proposed national monument into a no-fishing zone, and argues that recreational fishing should not be banned in the event that such monument is created. Unless some connection can be drawn between angling and potential damage to corals, that’s not an unreasonable position.

The Atlantic States Marine Fisheries Commission (Commission) also believes that fishing should be permitted, so long as it doesn’t threaten the corals. However, at the request of its American Lobster Management Board, it has also sent a letter to the White House.The Commission noted

“If the President chooses to use the Antiquities Act to protect deep sea corals, the Commission requested that the designated area be limited to the smallest area compatible with the proper care and management of the objects to be protected. Additionally, the Commission requested the area be limited to depths greater than 900 meters and encompass any or all of the region seaward of this line out to the outer limit of the exclusive economic zone.”
The speed with which the Commission jumped on the issue, in an apparent attempt to protect the incomes of a handful of lobstermen who fish near the edge of the continental shelf, was a marked contrast to the glacial progress that it has made in adopting regulations to address the collapse of the southern New England lobster stock. Although in 2010 biologists advised the Commission that the stock was experiencing recruitment failure, and that harvest should be sharply curtailed if not suspended, measures to effect such recommendation have not yet been adopted.

Such indifference to scientists’ advice has also hindered the use of MPAs for research purposes.
Two or three years ago, biologists proposed the creation of a habitat research “reference” area on New England’s Stellwagen Bank, where all fishing for groundfish would have been prohibited, although fishing for tuna and other pelagic species would still have been allowed.

The depletion of many species of New England groundfish has been a persistent problem for fisheries managers. The proposed reference area, planned to encompass 55 miles of ocean bottom, would have given biologists the opportunity to separate the impacts of fishing from other factors affecting groundfish populations, and so provide fisheries managers the insight needed to craft more effective regulations.
Recreational fishermen and the charter boat fleet mounted a fierce opposition to the groundfish closure, although a lot of their objections didn’t seem to make sense.

One charterboat captain who, according to the news website South Coast Today, “makes a living chasing tuna,” complained that, “I can’t go feed my family—that’s what you’re telling me. You’re cutting me off from the only thing that I know how to do.” Yet the proposed closure wouldn’t have affected tuna at all.

Another fishermen called the proposed reference area “a playground for scientists,” and said that, “We have a plethora of regulations and no way down the line to tell whether it worked or not.” He also opposed the closed area, even though it would have provided a way for managers to better determine whether fishing needed more — or perhaps could be allowed to have less — regulation.

In the end, such opposition convinced the New England Fishery Management Council not to move forward with the proposal.
Fishermen often have that sort of reaction to proposed MPAs: a knee-jerk belief that MPAs are all bad. When talking about no-fishing zones, they may be right. But when talking about targeted MPAs, designed for a particular purpose that will, in the end, lead to better angling, fishermen should rethink their position.
Properly-designed MPAs can provide more fish, and better fishing, for everyone, without shutting down any part of the sea. When fishermen oppose MPAs of that kind, the question isn’t whether they’re willing to rethink their position, but rather whether they’re thinking at all.

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NOTE:  This essay originally appeared in "From the Waterfront," the blog of the Marine Fish Conservation Network, which may be found at http://www.conservefish.org/blog/