Sunday, August 19, 2018


Every morning, when I don’t head outside, begins the same way.  I walk back into the den and turn on the TV (Channel 12 for the weather, CNN for the rest), then light up my laptop to check the news feeds.

This morning, a couple of striped bass stories caught my eye.
Anyone who fishes the northeast coast knows that striped bass are special.  Sure, tuna and makos grow quite a bit bigger, and their fight puts a striper’s to shame.  Inshore, bluefish pull harder, weakfish look better, and black sea bass are better to eat.

But striped bass have an aura that sets them apart from the pack.  They inhabit every type of inshore waters, from the high surf to deep-water ledges to tidal rivers yet, at times, can be nearly impossible to find.  They’ll eat everything from sand fleas to weakfish, but sometimes turn up their nose at our lures at the same time that seem to be blitzing on every fish in the sea.  They force us to fish at hours when other people sleep, in weather that keeps sane folks indoors, if we want to earn any real and consistent success along the striper coast.

For many anglers, they have achieved a sort of heroic status, a status that was only enhanced when, like the heroes of myth, they had their own symbolic descent into Hell in the late 1970s, when the stock collapsed and some people questioned whether it would ever rebound again.  But thanks to strict management measures, they returned to our seas in abundance, giving some fishermen a new understanding about why conservation is vital not only for the good for the bass, but for themselves.

Some people get that, some people don’t.  And that’s where today’s stories come in.

“After boating the behemoth bass, [the angler] quickly decided not to harvest the [sic] her and instead got some measurements, a few photos and released the fish to keep the genes in the pool and to hopefully keep growing and making more future mega bass.  The fish taped out at an impressive 54 inches and sported a girth of 32.5 inches.  When plugged into the weight formula (girth x girth) x length/800, the fish comes in at 71.29 pounds.”
That’s a big bass, one far larger than most of us will ever see, much less encounter on our own, and the angler could hardly be blamed if he had decided to put such a fish on his wall.  Yet he chose not to do so, and instead returned that big, fecund female to the sea to hopefully prosper and replenish its kind.

He certainly "gets it."  He has learned the lessons of the past, and have taken them well to heart.

As most striped bass fishermen probably know, at least from second-hand info if they haven’t seen it for themselves, the Cape Cod Canal has been New England’s hottest striped bass venue for the past couple of years.  As always happens, readily accessible abundance draws hordes of anglers, and not all of them are the sort that we’d want to claim as friends.

Some of them don’t “get it” at all.  Thus, the Cape Cod Times reported that

“A blitz of striped bass at the Cape Cod Canal has brought a swarm of fishermen looking to take home a ‘keepa’.
“But with the crush of fishermen, there has been a surge in calls about fishing violations and a flurry of citations handed out by the state environmental police.”
According to the article, enforcement officers have typically been receiving at least 10 complaints each day, and sometimes 10 complaints in just one hour, about illegal striped bass fishing in the Canal.  Over 50 citations have been issued in a single week, and the violations are so common that the environmental police are calling in officers from other parts of the state to help them deal with the poachers.

Most of the violations are the sort of thing you’d expect—anglers exceeding the bag limit or keeping fish below the minimum size.  Some, apparently anticipating a bag limit violation, are hiding their fish in the rocks or among the trees; such intentional concealment violates Massachusetts law.  And, as one might expect, there are illegal sales.

Yet, as bad as those violations are, other conduct is at least as disturbing.  The Times reported that

“Police have also found many stripers belly-up or barely alive floating in the canal.
“’From what we have observed they appear to have hook marks, indicating that this is poor catch-and-release practice or people are (high-grading), which is also prohibited in Massachusetts,’ according to [Maj. Patrick] Moran [of the Massachusetts Environmental Police]…
“High-grading is when a fisherman catches a fish and sets it aside until he or she catches a bigger fish.  The fish caught earlier is then thrown back, even though it is unlikely to survive…”
 Thus, recent news about folks chasing stripers spans the whole gamut, from the altruistic Rhode Island angler to the slob fishermen plaguing the Cape Cod Canal.

One might reasonably asks “Who is more typical of striped bass fishermen, the Rhode Island angler concerned about the future health of the stock, or the poachers on the Canal who care about nothing save themselves?”

I’m not sure that anyone can answer that question without first defining just what a “striped bass angler” is.

As much as I hate to say it, if we define “striped bass angler” as anyone who, at any time, might fish for striped bass with rod and reel, the scene at the Cape Cod Canal probably exposes a pretty good cross-section of the community.  

That’s because, when you set such a broad definition, you include a lot of folks who never “paid their dues,” who never fished for bass in all sorts of weather, learning the little details of how, when and why one finds fish and gets them to bite throughout a range of constantly changing conditions.

Instead, you find quite a few folks who have little respect for or knowledge of the fish or the fishery, but merely seek to cash in when the fishing is easy.  Today, they’re fishing for striped bass in the Canal, but when the Canal cools down, they’ll be back on their computers and smart phones, looking for the next blitz, instead of working the waters trying to find a pocket of fish for themselves.

Such people not only don’t get it, but they’re so far from the heart of the fishery that they don’t even know that there’s something out there to get…

If you narrow down the notion of “striped bass fishermen” to those folks who have spent years—or, if new, plan to spend years—working out the ways of the striper, the picture is a lot more favorable. 

The ranks of serious striped bass fishermen still include older folks who we might call the “Keepers of the Lore,” who pass down tales from the collapse four decades ago, and remind younger anglers that, if we’re not careful, the same things could very well happen again.  They try to teach newcomers how and why to release unwanted fish (always remembering that the occasional striped bass dinner is OK, too) and, if the student seems worthy, teach them how to catch some bass, too.

Those folks “get it,” as do plenty of younger anglers who come to the hearings and say that “We don’t want to see them collapse again,” even though the last collapse happened before they were born, meaning that they could only have seen it through their fathers’ or older friends’ eyes.

In truth, the conservation ethic among dedicated striped bass anglers that I’ve known—and over the years, I’ve come to know a lot of them—is undoubtedly stronger than it is among any other salt water anglers in the northeast.  Along the entire coast, only the folks who chase bonefish, permit and tarpon, and maybe some West Coast salmon anglers, seem to come close.

And that’s a good thing.  Yet, if I’m to be honest, I have to admit that there is a subset of striped bass fishermen—very good, very dedicated, very successful striped bass fishermen—that really don’t “get it” at all. 

Some are poachers, pure and simple.  They see the bass as little more than dollar bills to be plucked from the water.  They seem to enjoy catching bass, but the fishing is more like a job, and it’s not clear that they’d do it—or at least do it so often—if fishing cost them money instead of enhancing their bottom line.

Then there are folks with big egos. 

Some are just tackle shop heroes, people who apparently live such drear and meaningless lives that they find their purpose in killing striped bass and getting their pictures on bait station walls, living for the assumed admiration of the next guy who walks into the shop to buy a few fresh bunker. 

Others live in a larger world, with Internet presence and YouTube channels, who have found a way to monetize their angling talents.  

They reach a lot of folks, and have the potential to do a lot of good by promoting the principles of good sportsmanship and effective conservation.  Of course, some of that stuff is controversial and might upset their sponsors, so in the end, like the poachers, they usually just concentrate on maintaining their cults and their bottom lines, and let the striped bass take care of themselves.

And that’s too bad, because it looks like the striped bass is going to need all the help that it can get in the soon-to-be future. 

The folks who don’t “get it” will, of course, support such an opening, and such new reference points, in order to increase their (legal) kill.

That means that the folks who have figured out that healthy fisheries—recreational and commercial—depend on healthy fish populations, have a big job to do in the next year or so.  They’re going to have to go to the hearings, when they finally happen, to fight for the stripers again.

It’s the same thing that they’ve done for the past forty years.

The faces have changed, but the mission remains. 

As those who “get it” already know.

Thursday, August 16, 2018


For many years, anglers have criticized estimates of recreational fish landings produced by the National Marine Fisheries Service (NMFS), which are used by fishery managers to set seasons, bag limits and other regulations. Such anglers typically argue that NMFS overestimates recreational harvest, which results in unnecessary restrictions being placed on recreational fishermen.
The Jersey Coast Anglers’ Association expressed such an opinion in 2013, when it challenged the Atlantic States Marine Fisheries Commission’s (ASMFC) proposed black sea bass management program, arguing, “It is obvious that the problem lies with an unrealistic harvest limit…and the continued reliance on the fatally flawed [Marine Recreational Fishing Statistical Survey] data which has not been significantly improved by the introduction of the new [Marine Recreational Information Program] system.”

About a year earlier, Jim Donofrio, Executive Director of the Recreational Fishing Alliance, also expressed concern about the data developed by the newly-adopted Marine Recreational Information Program (MRIP), saying that “I would love to join the rest of the fishing community in celebrating the good times ahead, but if the [Marine Recreational Fishing Statistical Survey] staff is using the same effort and participation data coupled with inadequate intercept data generated over the past 33 years, then I’m not so sure that we’ve turned a corner instead of just running around in more circles.”

Such critics should have been pleased to learn that NMFS had similar concerns about the accuracy of its recreational catch and effort data. Beginning in 2008, it began exploring ways to improve the accuracy and the efficiency of its estimates. Finally, on July 9, 2018, NMFS announced revised recreational catch and effort estimates dating back to 1981.

That announcement was good news, because more accurate catch and effort estimates will lead to more accurate stock assessments; such assessments will, in turn, lead to more effective regulations that can better prevent overfishing, rebuild overfished stocks and keep fish stocks abundant and healthy in the long term.
Unfortunately, because the revised estimates indicated that the effort, and so the catch of anglers fishing from private boats and from shore (party and charter boats are covered by a different survey) was substantially higher than previously thought, some people didn’t wait to get the full story before they declared that the sky was about to fall.
One well-known gadfly from the for-hire sector was quick to announce that “We’re About To Go WAY Over Quota in Almost Every Fishery (according to soon-worsening catch data) I Anticipate Many Recreational Fisheries Will See Closures [sic]…We’ll soon be so over quota, in every fishery, that our rod-racks will become wall-mounted spider farms long before we’re allowed to fish again.”

While such statements may serve to stir up discontent, they fall a very long way from the truth. They’re based on the false notion that higher recreational landings necessarily mean that anglers are overfishing, and that regulations will need to grow more restrictive, in order to get such overfishing under control. The truth is that, right now, no one really knows what the higher landings mean.
In announcing the revised catch and effort estimates , NMFS tried to reassure anglers, letting them know that “the increase in effort estimates is because the [Fishing Effort Survey (FES)] does a better job of estimating fishing activity, not a sudden rise in fishing…Implications of the revised estimates on all managed species will not be fully understood until they are incorporated into the stock assessment process over the next several years…In the meantime, the new FES data can be back calculated into the [previous estimates] to allow for an apples-to-apples comparison of catch estimates with management benchmarks, such as annual catch limits, that were based on the [earlier estimates]…”

So no, the revised estimates will not immediately cause anglers to exceed their catch limits and shut fisheries down. The higher catch numbers could even be viewed as good news, for as NMFS notes , “Because the number of fish being caught is an indicator of fishery health, if effort rates were actually higher in the past than we estimated, then it is possible we were underestimating the number of fish in the population to begin with.”

Whatever the implications of the new estimates, many anglers are probably curious as to why the revisions occurred, and why angling catch and effort estimates were revised upward. That is all explained in two NMFS videos , but the short version is this.

NMFS used to use something called the Coastal Household Telephone Survey (Telephone Survey) to estimate angling effort. It made calls to randomly-selected households in coastal counties, with no prior knowledge of whether or not anyone in such households was a recreational fisherman. The percentage of calls that successfully contacted an angler was relatively low, which limited the amount of data that could be obtained.
The Telephone Survey was replaced by the FES, which uses lists of registered salt water anglers, augmented by a United States Postal Service list of households to capture effort by anglers who are not on the registration lists, to mail out a hard-copy survey. Although it seems counterintuitive, such old-fashioned “snail mail” actually produces much better information.
That’s because, by addressing most of the surveys to registered anglers, NMFS is able to reach more recreational fishermen, and better assure that the surveys actually get into such fishermen’s hands. The combination of a better-targeted survey and an improved questionnaire led to response rate that was three times greater than the response to the Telephone Survey; in addition, responders provided more complete data.
In most surveys, higher response rates and improved data will lead to better results. The catch and effort estimates gleaned from the FES were no exception to that rule.
NMFS explains that there are two reasons why the revised catch and effort estimates are higher than those developed through the Telephone Survey.
The first, deemed the “Telephone vs. Mail Factor,” boils down to the fact that people respond differently to mail surveys, which they can answer thoughtfully and at their leisure, than they do to telephone calls, which demand immediate attention and require instant response. The second is what NMFS calls the “Wireless Effect.” It has been a factor since 2000, when the use of cellular phones became widespread enough to seriously limit the number of households reached through the random Telephone Survey; a developing trend of people with “landline” phones taking, on average, fewer fishing trips than those without landlines has made the Wireless Effect even more powerful in recent years.
Due to those two factors, the difference between the original and the revised catch estimates remained fairly constant from 1981 through 1999, when the Telephone vs. Mail Factor was the only consideration, and increased substantially after 2000, when the Wireless Effect also played a big role.
The revised estimates for shore-based anglers were roughly five times higher than those developed through the Telephone Survey; estimates for private-boat anglers did not quite triple, which remains a substantial increase.
Thus, it shouldn’t come as a surprise that the species reflecting the greatest increases in landings include those that are most often caught from shore. Bluefish led the pack, with recent landings about four times as high as previously thought. Revised estimates for striped bass, another popular target for surfcasters, were three times higher than the earlier figures. Fish that are typically caught by boat fishermen, such as summer flounder, black sea bass, South Atlantic gag grouper, Gulf of Mexico red snapper, and Atlantic cod, showed revised catch estimates that are typically about 2 ½ times as high as estimates derived through the Telephone Survey.
NMFS doesn’t yet know what the new data means. It <strongcould impact the status of some stocks, some management measures, and the allocations between the commercial and recreational sectors. But it won’t necessarily lead to any of those things.</strong
Until the revised estimates are incorporated into stock assessments, no one at NMFS is venturing any guesses about how the data will impact different species. It’s very possible that higher recreational harvest from some still-healthy stocks will demonstrate that such fish are more abundant and able to withstand more fishing pressure than previously believed, and will lead to higher catch limits. It’s also possible that higher recreational landings will at least partially explain why some stocks have never rebuilt to target levels, despite years of management efforts.

Anglers should get their first real indications of the revised estimates’ impact late in 2018, when benchmark stock assessments for striped bass and summer flounder are released. Assessment updates for a host of other species, including Gulf of Mexico red snapper, Atlantic cod, bluefish, black sea bass and scup, will follow shortly thereafter, and should provide additional insight.
Until the assessments come out, all that anglers can do is wait, learn about the new survey, and rest assured that the end of the world is not nigh.

This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at

Sunday, August 12, 2018


I had something planned for Wednesday afternoon, and so wasn’t able to listen in on the meeting, but in all honesty, even if my time was free, I probably wouldn’t have signed onto the webinar, as the meeting promised to be pretty dull.

Unfortunately, that promise was broken.

Things went pretty well through all of the scheduled agenda items.  There was a small hiccup involving Maryland’s compliance with circle hook requirements, and an even smaller issue involving Maine, but in the end, the compliance report sailed through the Board without a lot of debate.

No problems arose until what was usually the most innocuous part of the meeting, the call for any new business.
It’s normally routine.  More times than not, no issues are raised.  But last Wednesday, at the Management Board meeting, that wasn’t the case.  A representative of the National Marine Fisheries Service rose to inform the Management Board that, at the apparent behest of higher-ups in the Department of Commerce, NMFS will soon be holding scoping hearings on opening up sections of the Exclusive Economic Zone around Block Island to striped bass fishing.

That was a bit of a bombshell.  And things didn’t end there.  

According to folks who attended or listened in on the meeting, there was also a strong suggestion that Commerce was thinking about eliminating the 30-year-old ban on striped bass fishing in the EEZ altogether.

That would certainly be a bad thing.

Rep. Lee Zeldin (R-New York) has been trying to open the EEZ around Block Island for a long time.  He has stated that
“One of the top legislative priorities of Long Island fishermen is the need to clarify the federal regulations regarding striped bass fishing in the small area of federally controlled waters between Montauk Point and Block Island.”

That’s a dubious statement at best.  

I’m a long Island fisherman, and I know a lot of other Long Island fishermen, and that’s certainly not our “top legislative priorit[y].”  

We can read pretty well—as far as I know, we all made it through high school, in the day when passing English remained a graduation requirement—and the wording of the regulations in question, 50 C.F.R. 697.7(b), is already perfectly clear. 

You can’t fish for striped bass in federal waters between Montauk and Block Island.  Period.  End of discussion.  No clarification needed.

What Zeldin is trying to do isn’t to “clarify” such regulations, but to negate them.  At the least, he should be up front about that.

Of course, he might not want to take credit for some of his earlier efforts.

Like his more recent efforts, H.R. 3070 didn’t “clarify” anything at all.  Instead, it muddied the waters considerably, by creating two different EEZs—the first, the boundary that we all know and love, drawn 3 miles off the Atlantic coast, and the second, a separate EEZ that would be the same as the first for most purposes, but would make some crazy zigs and zags around Block Island, and would only apply to fishery management questions.

To add a little more “clarity” to the mix, the initial draft of H.R, 3070 actually had the "second" EEZ running through the southeast corner of Block Island, so that a surfcaster with his feet firmly planted on a Block Island boulder would be illegally fishing for striped bass in federal waters, while a Montauk charter boat captain fishing dead in the middle between Block Island and the Montauk Light would be on the right side of the law.

Zeldin, or at least one of his staffers, probably should have taken the time to look at a chart before dropping that bill, but I suppose the need to frustrate conservation efforts was a far more pressing concern than drawing boundaries that made some kind of sense.

And, of course, that assumes that either he or one of his staffers would actually know how to plot out the boundaries of his "new" EEZ, and actually read a chart, if they tried to consult one.

His next really notable event didn’t occur until about a year ago, when he seemed to hope that Long Island’s striped bass poaching community—which includes a fair number of constituents way out on the South Fork—might name him their “Man of the Year.”

He did that by having two amendments attached to the House version of last year’s Omnibus Spending Bill, which would have prevented both NMFS and the Coast Guard from spending any of their appropriated funds to enforce the regulations prohibiting striped bass fishing in federal waters north and west of Block Island.  If Rep. Zeldin had gotten his way, striped bass poachers would have been able to operate in the clear light of day, flagrantly violating the law, knowing that they were free to flip the bird to the Coast Guard and NMFS enforcement agents who might otherwise cite them for illegal striped bass harvest.

Fortunately—at least that’s what we thought at the time—the Senate watered down the language to look a lot like the language of H.R. 1195 and the amended H.R. 3070, merely encouraging NMFS to work with ASMFC to consider allowing striped bass to be harvested in a small section of the federal sea off Block Island.

Unfortunately, we weren’t as fortunate as we had first believed.

As mentioned earlier, Zeldin's revised language, NMFS is now apparently planning to hold scoping hearings on the topic, hearings that will likely lead to proposed regulations opening the EEZ, not only off Block Island, but very possibly along the entire East Coast.

That bodes ill for the striped bass, because if we’ve seen any one thing from this administration, it’s that they care little for fisheries conservation, and whether we’re talking about red snapper, summer flounder or—I’m afraid—striped bass, and are always going to favor someone making abundant dollars today over everyone having healthy fisheries tomorrow.

A lot of folks fear that, as of right now, the striped bass population is already less than healthy.  Although there was a dominant year class in 2011, and another that was significantly above-average in 2015, a 2016 stock assessment update still shows the population to be barely 1,000 metric tons above the spawning stock biomass threshold that defines an overfished stock, while 13,000 metric tons below the target that defines a fully healthy spawning stock.  The assessment update made no projections as to whether the stock is likely to increase substantially under current regulations, but found it unlikely that it would be come overfished.

Such higher harvest, coupled with an EEZ opening, could create a perfect storm for the striped bass.

If the only thing that we were talking about was opening the EEZ on two sides of Block Island, things would be bad enough.  The additional fish that would be caught as a result (and don’t think for a minute this isn’t about killing more fish; folks wouldn’t be trying so hard, for so long, to get the rules changed) might be enough, in some years, to lead to overfishing, although any overage would probably be fairly small.

But if NMFS opened the entire EEZ...

“It offers a simple local solution to a unique local issue,”

“This anomaly exists only in this area because of the extended distance between Block Island, RI and Montauk Point, NY…
Over the last 35 years, I’ve gone to a lot of fisheries hearings here in New York, and the Montauk for-hire fleet has always claimed that they are in some way unique, and so somehow entitled to special consideration.  But anyone familiar with the entire, coastal striped bass fishery knows that is untrue.

That’s a pretty “unique” situation, too.  

And I’ve seen boats, private and for-hire, cross the three-mile line in the fall off Long Island, to jig striped bass feeding on sand eels.

The story’s the same as you move down the coast, where just about every state has a “unique” situation where bottom topography and bait concentrations predictably coincide, to create a “unique” situation that could be used to justify striped bass harvest in the EEZ.

But nowhere does the situation become as critical for the striped bass as it does in the winter off Virginia and North Carolina, where most of the Chesapeake stock concentrates offshore.  There, the majority of the prime brood fish—the 40, 50 and even 60-pound fish that produce huge quantities of the most viable eggs—would be vulnerable to harvest if the EEZ opened up.

“Winter striped bass fishing big disappointment along Virginia coast,”
and goes on to say

“Statistics from the Virginia Saltwater Fishing Tournament tell the story.  The 2013 citation count for the stripers stands at around 325, with a few more to be added as late forms are tallied.  In 2012 the count was nearly a thousand more, the second highest on record at 1,331.  Of that number, 107 fish weighed more than 50 pounds apiece; 11 of those fish were more than 60 pounds.  Included was a massive 74-pound state record…”
It’s probably no coincidence that the drop in the number of big fish being caught coincided with NMFS bringing charges against five charter boat captains who were regularly fishing for, and catching big, prime female striped bass in the EEZ off Virginia, arrests that brought penalties serious enough to incentivize fishermen--and the for-hires--to play by the rules.

It seems that they have a “unique” situation, too.

Thus, it’s pretty clear that Zeldin has opened Pandora’s Box.

He was an early supporter of Donald Trump’s presidential campaign, getting behind the then-candidate Trump well before the 2016 Republican primary.  He has remained very close to the Administration ever since.  Because of that, his continuing desire to have the EEZ opened to striped bass fishing in going to bear substantial weight with the Commerce Department.

But what Zeldin apparently didn’t appreciate—or, just as likely, he appreciated, but just didn’t care about—is that by insisting on opening the EEZ off Block Island, he drew the Administration’s attention to the entire EEZ closure.  

And once this administration starts looking at a regulation intended to promote conservation, such as the EEZ closure, the first thing they’re going to do is try to figure out how to make that regulation go away, because as any Administration official will be more than happy to tell you, conservation is bad for business, and business is the only thing that they give a single damn about.

So, while striped bass almost certainly wouldn’t take a fatal hit if the EEZ around Block Island was opened to fishing, eliminating the EEZ closure entirely would do some real harm.  

The commercial fishery wouldn’t do much more damage, because it is subject to a hard-poundage annual catch limit, and so its harvest wouldn’t automatically increase.  That’s not the case with the recreational fishery, which has no catch limit, but instead is subject only to a “soft cap” based on removal rates, and such rates aren’t even calculated every year.

Thus, recreational overfishing can go on for quite a long time before anyone even knows that it's happening.

To make things worse, the upcoming benchmark stock assessment will calculate stock health at the end of 2017, and will probably be used to establish regulations, which could well allow a bigger kill, during the course of 2019.  Such regulations would, most likely, become effective in 2020.

Because regulations to open the EEZ would probably be adopted during 2019,their effects won’t be considered in either the 2018 benchmark assessment or the regulations adopted in 2019. 

That timing, coupled with the lack of an annual catch limit for recreational fishermen, would set the stage for years of overfishing, driven by the harvest of a lot more big females in the EEZ.  Such fishing would go undetected until the stock assessment is updated in 2021 or 2022, by which point the spawning stock biomass could well be badly depleted.

Thus, the striped bass, striped bass fishermen and, appropriately, even the Montauk for-hires that have kept the EEZ issue alive will all lose, and lose badly, if the EEZ opening occurs.

But there’s no reason to believe that Zeldin is thinking that far ahead.

Which is why, when the scoping hearings begin, it will be up to folks who actually care about the striped bass, and about the future, to do his thinking for him.

Because this screw-up would be far worse than just drawing the EEZ across southeastern Block Island, in a bill that died long ago.  

And fixing it could take many years.

Thursday, August 9, 2018


Although there were a number of items on the agenda, the meeting of ASMFC’s Atlantic Menhaden Management Board was probably viewed as the main event, with all of the other meetings forming a sort of undercard (in the end, that didn’t prove true, with some troubling news coming out of what had been expected to be an uneventful Atlantic Striped Bass Management Board meeting; that will be discussed here at some point next week).

Menhaden became a hot item after the Virginia legislature, which controls menhaden management in that state, refused to adopt the 51,000 metric ton cap on the large-scale “reduction” harvest of menhaden in Chesapeake Bay, which was included in the new Amendment 3 to ASMFC’s menhaden management plan.  Such refusal left an 87,216 metric ton cap in place, and put Virginia into technical noncompliance with ASMFC’s menhaden management plan.
As a result, at ASMFC’s Spring Meeting last May, the Atlantic Menhaden Management Board considered a motion that read

“Move that the Atlantic Menhaden Board recommend to the ISFMP Policy Board that the Commonwealth of Virginia be found out of compliance for not fully and effectively implementing and enforcing Amendment 3 to the Atlantic Menhaden Fishery Management Plan if the state does not implement the following measure from Section 4.3.7 (Chesapeake Bay Reduction Fishery Cap) of Amendment 3:  The annual total allowable harvest from the Chesapeake Bay by the reduction fishery is limited to no more than 51,000 mt.”

If the legislature failed to adopt the lower Bay Cap, as ultimately proved to be the case, by the August meeting, the Atlantic Menhaden Management Board could then find them out of compliance with the management plan, a which, if affirmed by ASMFC’s Policy Board and then by the Secretary of Commerce, could result in a total moratorium being placed on all of Virginia’s menhaden fisheries until the state adopted the lowered Bay Cap.

The Bay Cap was supported by a very broad array of anglers and conservation groups, who believed it was necessary to maintain the ecological health of Chesapeake Bay.  A grassroots appeal made by the Theodore Roosevelt Conservation Partnership provides a good summary of the pro-Cap side’s arguments.

“Menhaden, the small, oily baitfish also known as bunker or pogie, are well-deserving of their other nickname:  ‘the most important fish in the sea.’  They are a critical food source for many of the sportfish that we love to pursue and they filter gallons of water a minute to improve water quality where polluted runoff is a serious threat to habitat, like the Chesapeake Bay.
“For decades, the reduction fishing industry---which ‘reduces’ menhaden for feed and oil for use as pet food and agriculture feed—lobbied for higher and higher menhaden quotas.  Last year, anglers pushed back.  The Atlantic States Marine Fisheries Commission responded by voting to place a modest cap to conserve menhaden in the Chesapeake Bay and study methods of managing forage fish with their ecological importance in mind.
“But in Virginia, a single company representing a last harmful relic of past mismanagement may not comply with the cap.  It’s time for the Atlantic States Marine Fisheries Commission and the Secretary of Commerce to hold Omega Protein accountable and, if necessary, shut the reduction fishery down…”

The reduction fishery opposed the Bay Cap, arguing that no study had ever clearly established that predators were harmed by localized menhaden depletion in the Bay.  It found support in a statement in Amendment 3 itself, which said that

“In 2005, the Board established the Atlantic Menhaden Research Program (AMRP) to evaluate the possibility of localized depletion.  Results from the peer review report in 2009 were unable to conclude localized depletion was occurring in the Chesapeake Bay and noted that, given the high mobility of menhaden, the potential for localized depletion could only occur on a ‘relatively small scale for a relatively short time.’”

Thus, the battle lines for last Tuesday’s meeting were set.

The meeting opened with a substitute motion brought by Maryland, which would have found Virginia out of compliance only if the 51,000 metric ton Bay Cap was actually exceeded, and not merely because the legislature failed to act.  Such motion had the support of not only Maryland, but also of Virginia and the Potomac River Fisheries Commission, so every Chesapeake Bay jurisdiction with an interest in menhaden was on board.

Other Management Board members, however, had their doubts.

Robert Ballou, the proxy for Rhode Island’s marine fisheries director, was concerned that not finding Virginia out of compliance until it actually exceeded Amendment 3's Bay Cap would set a precedent that other states would use to avoid adopting needed regulations.  He feared that extending such an opportunity to Virginia would “tear at the fabric” of what ASMFC had done in the past.

A number of Management Board members expressed similar thoughts.  Some of them argued that it was a matter of principle, and that ASMFC should not allow Virginia to ignore the demands of the management plan, even though it was pretty certain that, as a practical matter, Virginia’s 2018 reduction harvest in Chesapeake Bay would fall far below 51,000 metric tons.

Others were not so sanguine.  

Jim Gilmore, the marine fisheries director from New York and also the current Chairman of ASMFC, reluctantly supported the substitute motion.  He admitted that

“We have two choices and neither of them is very good,”
which was a clear reference to the likelihood that the Secretary of Commerce would overturn any noncompliance finding, and so undercut the authority of future ASMFC actions.  

Undoubtedly for that reason, Mr. Gilmore noted that holding Virginia responsible for what he called “a technical noncompliance” might do more harm than good.  He recalled that when he first became involved in fisheries management, a mentor reminded him that

“What your job is, is to serve the resource,”
and said that

“My opinion is, to serve the resource right now,”
ASMFC should approve the substitute motion.

His position, too, garnered its share of support

Pat Kelliher, the fisheries director from Maine, reflected the dilemma the Management Board was in when he observed that

“Both sides of this issue are concerned with the fabric of the Commission.”
They just disagreed on what action was most likely to tear that fabric apart.

As the vote drew near, it wasn’t at all clear which side of the debate would prevail.

But that all changed when Chip Lynch, an attorney for the National Marine Fisheries Service, took the floor.  He said that ASMFC had to decide for itself what to do, but observed that if ASMFC found Virginia out of compliance, it would be the first time in more than 24 years that such noncompliance finding was applied to a species that was neither overfished nor subject to overfishing, and for which

“there is record evidence from the leadership of the Commission that the measure [giving rise to the noncompliance finding] is not related to conservation.”
That was a key point, because even if the Secretary of Commerce was inclined to support any such noncompliance finding (and his past actions suggest that he was probably not so inclined), his ability to do so was limited by the express terms of the Atlantic Coastal  Fisheries Cooperative Management Act, which states in relevant part that

“Within 30 days after receiving a notification from the Commission [that a state has been found out of compliance] and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on
1)      whether the State in question has failed to carry out its responsibility to [adopt and enforce the relevant provisions of an ASMFC management plan]; and
2)      if so whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.  [emphasis added]”
I’ve been an attorney for about 40 years and, based on the administrative record, there is no way that I would have been able to advise a client that Amendment 3’s Bay Cap was necessary to conserve the menhaden fishery.  Anyone listening to Mr. Lynch speak would have been just about sure that he couldn’t, in good faith, give such advice to his client, either.

That changed the tenor of the debate.

When a vote was taken, the substitute motion was voted down, but Virginia was not found out of compliance.

Instead, the Management Board again voted to postpone any action on the noncompliance motion, this time until its February 2019 meeting, to give everyone involved in the issue a chance to work it out; that’s particularly important for the Virginia legislature, which will meet over the winter.

While it wasn’t a satisfying outcome—most folks involved with the issue feel that Virginia’s failure to adopt the Bay Cap was inherently wrong—it was probably inevitable, for as Mr. Gilmore noted, the consequences of finding Virginia out of compliance could, and I believe would, have been worse.

In the meantime, hope remains that, before next February, people will come together in good faith to work out the issues, so that a vote on noncompliance will not be needed.