Sunday, March 17, 2024

DEPLETED FISH STOCKS: WHEN SHOULD THE KILLING STOP?

 

A little over a week ago, my marina gave me a call, and asked when I planned to put my boat in the water.  I thought for a second, and ended up saying the 10th or 15th of April, even though I hadn’t given the launch date all that much thought; while I always look forward to getting back on the water, the simple truth is that I’m an angler, not a “boater,” and never saw too much point to setting foot on a vessel unless there was some sort of fish around.

And right now, that’s just not the case.

The fact that I’m writing on St. Patrick’s Day adds a little more poignancy to that fact.  When I first moved out to Long Island, March 17 was the unofficial start of the winter flounder season.  Party boats sailed with full loads, and private boats swarmed in bay shallows, where the sun shining through thin water warmed dark mud bottoms, and the flatfish began to stir.

Back then, New York’s anglers took millions of winter flounder home every year.  The fishing happened to peak in 1984, my first year fishing on Great South Bay, when nearly 14.5 million winter flounder were landed by the state’s recreational fishermen.  But soon after that, New York’s recreational flounder fishery began to tank.  By 1994—just ten years after the peak—recreational landings in the state’s waters had fallen by more than 95%, to about 667,000 fish, and things just kept getting worse from there.

By 2010, landings had fallen so low that samplers for theNational Marine Fisheries Service’s Marine Recreational Infoprmation Program, usedto estimate recreational effort, catch, and landings, could no longer find enough fishermen who had caught winter flounder, and so could no longer produce even marginally reliable estimates of the number of fish caught.  The point estimate for 2023 was a mere 535 fish, but there was so much uncertainty in the data that the actual number might have fallen anywhere between 0 and 1,680—at any rate, a tragically small number when compared to the millions of fish that were once yielded by a healthy flounder stock.

We see the same story repeated along the coast between Maryland and Rhode Island, the states that once hosted the same Southern New England/Mid-Atlantic winter flounder stock (the SNE/MA stock is also found off southern Massachusetts, but the way that MRIP presents recreational data, it’s impossible to separate SNE/MA landings from those properly attributable to the Gulf of Maine stock of winter flounder).  In 1984, all of those states’ anglers combined to land a little over 27 million winter flounder, while the 2023 point estimate for the combined states was 3,410, but the actual figure could probably fall anywhere between 0 and 7,685, again evidencing a tragic and pitiful decline.

Such numbers make it clear that, by any realistic measure, the Southern New England/Mid-Atlantic winter flounder stock is severely depleted, and barely even a wisp of what it once was.

Which will let you understand why I found myself dismayed when a couple of New York’s party boat captains recently began seeking an increase in landings.

New York’s recreational winter flounder regulations are fairly restrictive, although not unreasonably so given the depleted state of the stock.  Anglers may keep two fish per day, provided that such fish are at least 12 inches long, during a season that runs from April 1 though May 30;

Apparently that’s not good enough for, as described in the Bulletin of New York’s Marine Resources Advisory Council, at the Council’s January 9, 2024 meeting,

“Marc DeJung, who runs a fishing head boat out of Pt. Jefferson requests that the DEC begin to allow his customers to keep the occasional flounder that they may catch while fishing during June, July, August, and September.  It’s a by-catch fishery, so let people keep their by-catch…

“Mr. Jamie Quarisemo, Miss Montauk, NY is thinking along the same lines with just a little difference.  He would like to see something open up for flounder—offshore.  He is referring to Federal waters and not state waters and since everyone now uses GPS, there shouldn’t be a question with law enforcement as to what waters they were fishing in.  He thinks they should follow federal regulations as well.”

Listening to such comments, one begins to wonder whether there is any fish out there that these folks might not kill, or whether their mindset is such that returning a fish to the water instead of tossing it into a pail causes them real distress.

After all, the inshore party boat operator didn’t seem to be planning to sail on directed winter flounder trips.  Instead, should one of his customers happened to catch, along with the 3 black sea bass, 4 summer flounder, and 30 scup that such customer could already kill and take home, a winter flounder, the captain wanted such customer to be able to kill it, regardless of the poor health of the stock, instead of having to return it, alive, to the water.

It’s not that keeping one of the maybe half-dozen or dozen flounder the boat's customers might catch would put even a single additional dollar in the boat owner’s pockets.  It’s just that the idea of letting such fish live seems to offend the party boat captain’s values.

I have to admit that when I heard the initial request, I immediately thought of someone I know down in Galveston, Texas.  He runs a charter boat for much of the year, but also owns some commercial red snapper quota that he can use when the recreational season is closed.  In addition to his fishing operation, the same individual owns one of the largest waterfowl hunting operations in the State of Texas.  Somehow, I can’t see him going to the Fish and Wildlife folks and telling them,

“Every now and then, we get a whooping crane flying over the decoys.  I’m not planning to offer whooping crane hunts, but just in case one just happens to come flying by, my folks ought to be able to shoot it.”

No, I believe—I know—he has a lot more respect for native wildlife than that.  Maybe more respect than the folks who are looking to kill winter flounder

And no, I’m not trying to argue that flounder are scarce as whooping cranes, because that’s just not true, although it’s interesting to stop and think about the sort of thing that might, in theory, happen if someone tried to get Southern New England/Mid-Atlantic winter flounder listed under the Endangered Species Act.

It's even more interesting to think about what might happen if such a listing effort succeeded.

The Endangered Species Act defines a species as “endangered” if such species

“is in danger of extinction throughout all or a significant part of its range…’

and deems a species “threatened” if it

“is likely to become an endangered species within the foreseeable future throughout all or a significant part of its range.”

Taking that language on its face, it would seem to exclude winter flounder from either definition.  While the fish may not be as abundant as they once were, when one considers all of the flounder assigned to the Southern New England/Mid-Atlantic, Gulf of Maine, and Georges Bank stocks, there seems little real danger of the species becoming either extinct or endangered in the foreseeable future.

However, the Act defines “species” to include

“any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.  [emphasis added]”

And with that definition, it is not necessarily relevant that there might be a sufficient abundance of winter flounder in parts of the Gulf of Maine, or perhaps on Georges Bank, to make extinction unlikely in the foreseeable future.  The question instead becomes whether there is a distinct population segment of flounder, perhaps somewhere in Long Island Sound, that is at severe risk.

A joint policy statement, issued by the U.S. Fish and Wildlife Service and the National Oceanographic and Atmospheric Administration on February 7, 1996 provides guidance for determining whether a “distinct population segment” exists:

“Three elements are considered in a decision regarding the status of a possible [distinct population segment] as endangered or threatened under the Act.  These are applied similarly for addition to the lists of endangered and threatened wildlife and plants, reclassification, and removal from the lists.

“1. Discreteness of the population segment in relation to the remainder of the species to which it belongs,

“2. The significance of the population segment to the species to which it belongs, and

“3. The population segment’s conservation status in relation to the Act’s standards for listing…

Discreteness:  A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:

“1. It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors.  Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

“2. It is delineated by international government boundaries…

“Significance:  If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance…that the authority to list DPS’s be used ‘…sparingly’ while encouraging the conservation of genetic diversity.  In carrying out this examination, the Service will consider available scientific evidence of the discrete population segment’s importance to the taxon to which it belongs, but is not limited to the following:

“1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,

“2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,

“3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or

“4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

Status:  If a population segment is discrete and significant (i.e., it is a discrete population segment) its evaluation for endangered or threatened status will be based on the Act’s definitions of those terms and a review of the factors enumerated in section 4(a).  It may be appropriate to assign different classifications to different DPS’s of the same vertebrate taxon.”

Could there be one or more distinct population segments of winter flounder swimming somewhere within New York’s waters?

A species stock assessment produced by the State of New York in 2014 noted that

“In New York, two distinct behavioral groups have been identified: an inshore contingent that is present in coastal bays year-round, and an offshore contingent of larger individuals that travels inshore during the winter to spawn...

while at least one scientific paper, which found fairly severe inbreeding occurring in populations of flounder on Long Island, noted that

“Previous research on [Long Island] proposes the existence of multiple distinct behavioral groups with observations indicating the presence of resident and migratory individuals termed ‘bay fish” and ‘offshore fish,’ respectively.  [One researcher] estimated morphometric differences and variation in age and growth across four south shore bays of [Long Island].  It is not yet clear if these contingents are genetically differentiated…  [internal references omitted]”

Another scientific paper based on research in New York’s Shinnecock Bay noted that

“If resident winter flounder represent a separate genetic population, the seasonally more abundant dispersive population may mask a long-term decline in resident winter flounder that once supported Long Island fisheries and may eventually lead to extirpation of residents.  [emphasis added]”

Thus, there is at least the possibility that distinct population segments of winter flounder exist in New York waters, or elsewhere on the coast.

But if they exist, would any of those population segments qualify for an ESA listing?

Again, that’s impossible to know unless and until a petition is submitted to the National Marine Fisheries Service.  However, the law provides that

“The Secretary shall…determine whether any species is an endangered species or a threatened species because of any of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. [formatting and internal numbering omitted]”

Taking a look at that list, it seems that nearly all of the listing criteria might apply to winter flounder in one way or another.  Certainly, filling in coastal marshes, dredging in estuaries and bays, and other alterations of inshore waters have impacted flounder habitat, while NMFS’ data shows that the Southern New England/Mid-Atlantic stock was overfished for many years.  Studies suggest that predation has had a major impact on the recruitment of new fish into the population.  And regulators, whether the New England Fishery Management Council or the Atlantic States Marine Fisheries Commission’s Winter Flounder Management Board have never managed to impose regulations stringent enough to allow the population to rebuild.

So, again, there is at least an arguable basis for considering a discrete population segment of winter flounder for an Endangered Species Act listing.

And if that listing ever happened, much on the coast would change, because it would then be illegal to "take any such species within the United States or the territorial waters of the United States."

And in that context, "take" doesn't just mean to toss a flounder in a pail to bring home, but to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

So dredging a channel or a boat basin where flounder might be found, or fishing for scup or sea bass or anything else that requires a bait that flounder might eat, might all be significantly restricted, or even prohibited, if they result in too many incidental flounder "takes."

It could become a significant burden, but things should never get that far.

About a decade ago, the New York State Department of Environmental Conservation, responding to an ASMFC action, proposed regulations that would have quintupled the length of the recreational winter flounder season, to something like what the party boat operators recently suggested to the Marine Resources Advisory Council.  

The public response to such proposal was overwhelmingly negative, with comments opposing the proposal coming in not only from anglers, but from national conservation groups. At least one of those groups, the Center for Biological Diversity, frequently files petitions under the Endangered Species Act, and resorts to the courts when such petitions are denied.

That didn't happen the last time winter flounder regulations were proposed, perhaps because the DEC, in the face of such opposition, wisely decided to withdraw the proposed regulatory change.

There is little doubt that, if the matter comes before the Marine Resources Advisory Council once again, the Council will vote for an expanded winter flounder fishing season, for the makeup of the Council, which is dominated by the recreational and commercial fishing industries, virtually assures that conservation concerns will ultimately be ignored.  And there is a very good chance that if the DEC decided to do what the party boat operators ask, and again propose allowing anglers to kill more winter flounder, the same sort of opposition would arise once again.

We can at least hope that will be the case.

Because, while it’s difficult to decide just when it’s time to stop exploiting a badly depleted stock, it’s easy to say that when fish get so scarce that landings fall to less than 0.004%--that’s less than four one-thousandths of one percent—of what they were in the not-so-distant past, then the time to stop killing passed a very long time ago.

 

 

 

 

 

 

 

 

Thursday, March 14, 2024

MARYLAND CHARTER BOATS CONTINUE EFFORTS TO FRUSTRATE STRIPED BASS MANAGEMENT

 

Last January, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board adopted Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass as an interim measure intended to reduce fishing mortality to something close to sustainable levels, until a stock assessment, expected to be released in six months or so, provides more concrete advice on future management efforts.

Addendum II, among other things, established new recreational management measures for the Chesapeake Bay, which included a 1-fish bag limit and a 19- to 24-inch slot size limit, as well as a 7% reduction in the commercial striped bass quota.  While the slot size limit, applicable to all jurisdictions that border the Bay, was something new, the one-fish bag was not.  It originally appeared in Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, adopted in 2019, and was carried forward in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

However, Addendum VI permitted the unrestricted use of “conservation equivalency,” the doctrine that allows a state to propose, and adopt if approved, management measures that diverge from those in the fishery management plan, so long as such divergent regulations are calculated to have the same conservation impact on the managed fishery resource. 

Taking advantage of that doctrine, in 2020 Maryland created a matrix of proposed regulations that placed added restrictions on shore-based and private-boat anglers, including new closed seasons when even catch-and-release fishing for bass was prohibited, in order to maintain a 2-fish bag limit for anglers fishing from for-hire vessels within Maryland’s portion of the Chesapeake Bay.  At the February 2020 meeting of the Management Board, Michael Luisi, the Maryland fishery manager, confirmed such intent to favor the for-hires, saying

“It’s the no-targeting provisions that allow for some extra credit, if you want to call it that, to allow the charterboat fleet the extra fish.  [emphasis added]”

Thus, Maryland made the conscious decision to subsidize the extra fish for its for-hire anglers by taking away opportunities from the state’s shore-based and private boat fishermen even though, in 2019, such shore and private boat fishermen accounted for 93% of the directed striped bass trips taken in Maryland, and thus also for the lion’s share of the recreational, social, and, almost certainly, economic benefits gleaned from that state’s recreational striped bass fishery.

However, Addendum II brought such subsidies to a halt.  New language in Amendment 7 provided that

“[Conservation equivalency] programs will not be approved for non-quota managed recreational fisheries, with the exception of the Hudson River, Delaware River, and Delaware Bay recreational fisheries, when the stock is at or below the biomass threshold (i.e., overfished), as determined by the the results of the most recent stock assessment update or benchmark stock assessment approved for management use.  CE programs will not be considered until a subsequent stock assessment indicates stock biomass is above the threshold level.”

Since the most recent stock assessment update, released in late 2022, found the striped bass stock to be overfished, such language applied to the new recreational measures included in Addendum II.

That being the case, it’s hardly surprising that Maryland’s Luisi, who has a long history of subordinating the interests of Maryland’s anglers to that of the state’s charter and commercial fleets (such bias becomes particularly evident in the transcript of the August 2019 Management Board meeting, where Luisi, on multiple occasions, raised the specter of conservation-equivalent regulations that didn’t apply Addendum VI’s 18% fishing mortality reduction equally across both sectors, but would instead make only a minor reduction in Maryland’s commercial quota, and thus require the recreational sector to shoulder a greater than 18% reduction to make up the difference), and has been criticized by recreational fishing groups such as the American Sportfishing Association for just that reason, fought long and hard to include provisions in Addendum II that favored the charter fishing sector over the recreational sector.

However, such efforts failed to win the support of the Management Board.

Now, it appears that reality is beginning to set in, and the Maryland charter and commercial fleets don’t want anything to do with Addendum II at all.

The website of Maryland broadcaster WMDT announced yesterday that

“Dorchester County joined Queen Annes, and Talbot counties in calling for a reversal of a decision from the Atlantic States Marine Fishing Council [sic] (ASMFC), that imposed a one fish limit, 7 percent commercial reduction, and creel limit on striped bass in the Chesapeake Bay…

“[Dorchester County Council President Michael] Pfeiffer tells 47ABC he wants to see the regulation pushed back by [the Maryland Department of Natural Resources] to allow for relief…

“Delmarva Fisheries [Association] President Captain Robert T Newberry says the department must appeal the decision from ASMFC.”

But, while the ASMFC does have a process for appealing its species management boards’ decisions, there are requirements for taking such an appeal.  One of those requirements is that all three of the state’s management board members—the Administrative Appointee/state fisheries manager, Governor’s Appointee, and Legislative Appointee—must agree on taking such appeal, and right now, that does not seem to be the case in Maryland.  Michael Luisi, who was quoted in the article, revealed that

“In this case, there is a split within the ranks of those people sitting at the table representing Maryland as to how to move forward.  the [sic] appeal was not something that we could move forward with.”

However, it appears that Maryland may still try to eke out extra fish for its charter boat fleet, permitting the crew of the vessel, and not merely the fares, to retain a bass.  Luisi observed,

“If there are six people on the boat, they might be able to bring home eight fish instead of six fish, it’s not 12 but it’s 8.”

Of course, that still creates issues if a charter makes more than one trip per day, because the operator would then have to decide which trip will benefit from the extra striped bass allotted to the captain and crew.  For if a regulation allowed the captain and crew to keep one fish per trip, rather than per day, such rule would appear to conflict with Addendum II’s 1-fish-per-person-per-day bag limit.

Based on the comments that he made for the WMDT article, while Luisi isn’t happy about how Addendum II turned out, he seems resigned to complying with its terms.  However, there are others who want to see that Addendum go away, and have taken steps to make that happen.

On Tuesday, the Bay Journal reported that

“Two Maryland commercial fishing groups have filed suit challenging new striped bass harvest limits imposed on charter fishing business and watermen, arguing that they are ‘illegal, unnecessary, and improperly premised.’

“In a complaint filed March 8 in the U.S. District Court of [sic] Maryland, the Delmarva Fisheries Association and Maryland Charter Boat Association and two of their members contend that the Atlantic States Marine Fisheries Commission violated federal and state law and constitutions in ordering harvest reductions.”

The Bay Journal also reported that

“The lawsuit asserts that there is ‘no scientific or rational basis’ for the new harvest reductions to be applied to Bay fishers.  The coastal stock of striped bass is no longer experiencing overfishing, the groups note.  And while the total harvest and mortality of fish increased 32% coastwide in 2022 over the previous year, the groups say it has been steadily declining in the Bay since 2017…

“The lawsuit contends that the commission violated its own rules in adopting the charter catch limit by counting the votes of two federal agencies, the District of Columbia, and the Potomac River Fisheries Commission, a bi-state body.  The commission’s bylaws say that only states with an interest in the fishery may recommend changes, the lawsuit says.”

One Angler’s Voyage will publish a more detailed analysis of the complaint in that action in an upcoming edition, so at this point will only note that such complaint makes a number of dubious factual and legal assertions, and observe that the claimed decline in Bay charter boat landings, while real, is probably better attributed to the current, five-year-long period of striped bass recruitment failure in the Maryland portion of Chesapeake Bay, rather than to any restraint on the part of the charter boat fleet that might merit special consideration for the for-hire sector.

In support of the lawsuit, Delmarva Fisheries’ Newberry claimed,

“Watermen, waterwomen and charter boat operators already face a huge and growing number of obstacles in their world.  For them and for all Marylanders, it will be a tragedy of epic proportions if this mandate stands.”

Maryland Charter Boat Association members have made similar arguments, with the Bay Journal noting that one Severna Park captain claimed that bass

“have ‘never been more plentiful’ than now in his portion of the Bay,”

while

“Brian Nesspor, a Rock Hall fisherman who joined in the lawsuit, said in a deposition that striped bass have been abundant in the Bay the last three to five years,”

claims that seem inconsistent with the declining trend in Maryland’s recreational striped bass landings, and might even be deemed incredible in light of the striped bass’ overfished status and recent recruitment failure. 

For as Tina Berger, ASMFC’s Communications Director, told WMDT,

“Striped bass continue to be over-fished despite a series of management changes to decrease fishery removals since 2020.  The latest measures build upon the 2023 emergency action and aim to reduce fishing mortality and support stock rebuilding by 2029.”

The sooner that everyone—including some of the self-centered folks down in Maryland—get behind the ASMFC’s efforts to reduce fishing mortality and rebuild the stock to its target level, the better things will be, both for the bass and for those who pursue them.

 

 

 

Sunday, March 10, 2024

STRIPED BASS: LESSONS FROM THE LAST STOCK COLLAPSE COULD HELP PREVENT THE NEXT ONE

When the Chesapeake Bay striped bass stock collapsed in the late 1970s, people tried to figure out why.

Recreational fishermen were quick to point fingers at the commercial sector, which was not yet burdened by significant regulation. There were no gear restrictions and no annual quotas, and the fishery accounted for a larger share of the catch than it does today. The line between commercial and recreational fishermen was badly blurred, as few if any states required commercial licenses, and successful anglers regularly sold fish that they couldn’t use.

Commercial fishermen, on the other hand, tended to blame a declining bass population on Mother Nature and the so-called “cycle,” which saw bass populations wax and wane on their own, regardless of human activity.

Both sides were sure they were right, and both were unwilling to consider the other’s position. Now, a recent paper published in the American Fisheries Society’s journal, Marine and Coastal Fisheries Dynamics, Management, and Ecosystem Science, suggests that both the recreational and commercial fishermen owned a share of the truth, but neither had a full understanding of what had occurred.

 

In “Perspective comes with time: What do long-term egg and juvenile indices say about Chesapeake Bay striped bass productivity?” author James H. Uphoff Jr. uses historical fisheries data to cast new light on the most recent striped bass collapse. In particular, he analyzed the relationship between the Maryland striped bass juvenile abundance index (JAI) and data relating to both the spatial and temporal distribution of striped bass eggs in the Chesapeake Bay, as determined by samples taken in plankton nets towed in the vicinity of known spawning areas.

 

Uphoff used the relationship between the two data sets to create what he termed an “index of relative larval survival.” If, over the years, there was a fairly constant relationship between egg distribution and the JAI, it would suggest that overfishing was the probable cause of last century’s striped bass stock collapse. On the other hand, if the relationship between egg distribution and the JAI showed significant changes over time (for example, if eggs were widely distributed in the Bay in a given year, but the JAI for such year was low), it would suggest that environmental conditions made a significant contribution to the striped bass collapse.

To further bolster any evidence of environmental conditions being a cause of stock collapse, Uphoff looked at two other species common in the tributaries of the Chesapeake Bay, white perch and yellow perch, to determine whether their patterns of changing juvenile abundance correlated to that of the striped bass.

When all of the data was analyzed, Uphoff found that while the striped bass JAI declined quickly throughout the 1970s, egg abundance didn’t show a similar decline until 1979, and only declined enough to impact striped bass recruitment between 1982 and 1988. Such pattern suggests that, since the level of eggs found in the plankton net tows remained high throughout almost all of the 1970s, the stock collapse could initially be attributed to environmental conditions that were not conducive to larval survival. However, by the early 1980s, chronic overfishing led to low egg production, and so exacerbated the stock’s collapse and delayed its recovery.

The evidence of environmental conditions being the primary driver of the last stock collapse was supported by similar movements in the JAIs of white perch and yellow perch over the relevant period. Changes in the JAI of white perch, a small, non-migratory species that belongs to the same genus as the striped bass, were closely correlated to changes in the striped bass JAI, while there was a significant, but more moderate, correlation between the JAI of striped bass and that of the estuarine yellow perch, an unrelated species.

 

Throughout the striped bass stock’s recovery, an increase in spawning stock biomass trailed a corresponding increase in egg production by what appears, in a graph accompanying the paper, to be an interval of five or six years; there was a similar correlation between a decline in egg production in the early 1990s and a decline in spawning stock biomass that occurred a few years later. However, beginning around the year 2000, the two values diverged, with spawning stock biomass reaching its peak around 2003 and then beginning a long decline about five years later, while egg production fluctuated, with no clear direction, within a fairly narrow range.

Such divergence again suggests that environmental conditions played a dominant role in the latest decline in spawning stock biomass.

That information can be used to guide the management response to that decline, which also seems to be driven by environmental conditions. While fishery managers have no control over the environment, the history of the past collapse, in which a muted management response led to years of overfishing and so impaired the stock’s ability to rebuild, reinforces the need for conservative management measures that set the stage for rebuilding once environmental conditions improve.

That point was reinforced by another recent paper, “Climate effects on the timing of Maryland Striped Bass spawning runs,” which was written by Angela Giuliano and also appeared in Marine and Coastal Fisheries Dynamics, Management, and Ecosystem Science. In that paper, the author investigated the relationship between warming waters in the spawning areas and the timing and length of the striped bass spawn in portions of Chesapeake Bay. She also examined the age of the fish participating in the spawn and the time at which females from various age classes completed spawning.

 

The Chesapeake striped bass spawn generally gets underway when water temperatures reach 14o Celsius (about 57o Fahrenheit) and ends when it rises above 20o C (68o F) and significant larval mortality occurs. The timing of the spawn differs somewhat in the various spawning areas. Giuliano found that, while the timing of the spawn’s start has not significantly changed since the 1980s, the end of the spawn in the Chesapeake Bay, defined by the date when water temperatures exceed 20o C, is now occurring earlier, shortening the spawning season. She noted that a similar, 4-day shortening of the spawning season has been observed on the bass’ Hudson River spawning grounds.

In what are probably Guliano’s most important observations about striped bass management, she wrote,

If temperatures continue to warm quicker in the latter portion of the spawning season, this could result in a reduced time period during which temperature conditions are ideal for Striped Bass survival…these temperature changes could affect the timing of larval Striped Bass relative to their zooplankton prey, a concept known as match-mismatch. Large year-classes for Striped Bass tend to occur after cold and wet winters and [research] showed a potential mechanism for this, with the rate that copepods reach the adult stage over the winter being dependent on water temperatures…

Previous literature and the present study indicate that the larger females spawn earlier in the season than smaller females and that this range of spawning dates is a result of natural selection to assure that some larval fish will encounter favorable conditions for growth and survival. With the shifting spawning window and potential changes in zooplankton availability due to rising water temperatures, it has been suggested that having a broad age range of spawning fish will make it more likely that some eggs and larvae will experience these ideal conditions. Although fisheries managers cannot directly control the water temperature that larval fish will encounter, they can consider how management actions may affect the age range of fish available in the spawning stock in addition to the size of the spawning stock. If these management goals are considered in tandem, the Striped Bass stock may be better positioned to adapt to the conditions expected under a changing climate. [emphasis added, citations omitted]

 

Right now, faced with environmental conditions that are causing an extended period of low recruitment, fishery managers are facing the same situation that they faced in the late 1970s. To their credit, they have, in recent years, taken actions intended to rebuild the overfished striped bass stock, including the adoption of emergency management measures in May 2023. If managers hew to their current course, overfishing won’t be allowed to hamper rebuilding, as it did in the 1980s.

 

However, the recent research suggests that merely maintaining the size of the spawning stock might not be enough. We must also consider the age structure of the spawning stock.

The Atlantic States Marine Fisheries Commission has already laid the foundation for such a two-pronged approach. One of the stated objectives of its striped bass management plan is to “Manage fishing mortality to maintain an age structure that provides adequate spawning potential to sustain long-term abundance of striped bass populations.”

 

Now, managers need to adopt measures designed to meet that objective, even if such measures are more restrictive than those needed to merely maintain stock size.

They already have the tools and the knowledge that they need to do so. Hopefully, they also have the will to put such tools and knowledge to use.

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

  

Thursday, March 7, 2024

COURT DECISION EXAMINES ALLOCATION ISSUES

 

Last week, the United States Court of Appeals for the District of Columbia Circuit handed down a decision in A. P. Bell Fish Company, Inc. v. Raimondo, after commercial and for-hire fishermen challenged a reallocation of Gulf of Mexico red grouper.

The legal action was brought after the National Marine Fisheries Service approved Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico in 2022.  One of the key provisions of such amendment changed the red grouper allocation from 76% commercial/24% recreational to 59.3% commercial/40.7% recreational, based on revised estimates on each sector’s landings during the years 1986 through 2005, which years were used to determine the prior sector allocations.

The plaintiffs argued that, in making the reallocation, the National Marine Fisheries Service relied on an economic analysis that it had rejected when the previous allocation was made, and that the reallocation was inconsistent with two of the national standards for fisheries conservation and management contained in the Magnuson-Stevens Fishery Conservation and Management Act, including National Standard 4, which requires, among other things, that allocation measures

“shall be…reasonably calculated to promote conservation,”

and National Standard 9, which states that

“Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.”

Relevant to those national standards, one of the commercial plaintiffs commented that

“Reallocation to the recreational sector under Amendment 53 increases dead discards and commercial fishermen are forced to fish under a reduced catch limit to cover those discards.  So commercial fishermen are penalized twice: first by the reallocation and second, by lower overall catch limits to offset increased recreational discards.  In essence, commercial fishermen now have a smaller piece of a smaller pie as a result of Amendment 53.”

The trial court that first addressed the challenge decided against the plaintiffs, finding that Amendment 53 complied with all the requirements of Magnuson-Stevens, and that the underlying decisions found adequate support in the administrative record.  However, the Court of Appeals, in a unanimous decision, disagreed.  While it did not vacate the rule that implemented Amendment 53, it did remand the matter to NMFS,

“so the Fisheries Service can address whether the economic analysis underlying Final Amendment 53 was sufficiently different from that discredited in adopting Final Amendment 28 in 2016 and the implications of further analysis for National Standards 4 and 9.”

While the ultimate fate of Amendment 53, and the reallocation established therein, will hinge on how NMFS responds to the remand, some of the most interesting language in the Court’s opinion lies not in the finding that led to the remand, but rather in the language that addresses challenges based on the National Standards.

With respect to National Standard 4, plaintiff argued that the reallocation itself, rather than the entirety of Amendment 53, must be “reasonably calculated to promote conservation,” a standard that a reallocation favoring the discard-prone recreational sector was unlikely to meet.  

The Court of Appeals disagreed, noting that

“it is not clear that Final Amendment 53 was an allocation for purposes of National Standard 4.  Final Amendment 53 relies on the same historical landings as Final Amendment 30B.  The only difference is that Final Amendment 53 uses more accurate survey data to extrapolate the historical recreational catch and enforce the recreational catch limit.  It is unclear such a methodological change effects a new allocation of fishing rights.  [citations omitted]”

In other words, as I argued in a post that appeared in this blog shortly after the lawsuit began,

“It’s easy to argue that the new regulation didn’t really represent a reallocation, but merely a recalculation that corrected an error made 14 years ago.  After all, the base years used to calculate the allocation—the same base years that were completely acceptable to the commercial sector back in 2009, when it was granted 76% of all Gulf red grouper landings—did not change.  All that NMFS did was change the percentage of the landings allocated in each sector, to correct an error it made well over a decade ago.”

In the end, the question of whether Amendment 53 actually reallocated the red grouper resource, or merely corrected a past error, might not matter, since the Court ultimately determined that

“National Standard 4 applies to Final Amendment 53 as a whole and not just to the quota allocation component…Final Amendment 53 might be sufficient to promote conservation by substantially reducing catch limits and promoting wise use.  This may well depend on how the Fisheries Service addresses its reliance on the analysis it rejected in Final Amendment 28.  [citations omitted].”

The Court’s finding that National Standard 4 applied to the Amendment as a whole, and not merely to that portion which addressed the allocation, may well be relevant to future litigation.  However, the question of whether the supposed reallocation was really an allocation subject to the language of National Standard 4, or was merely a methodological change that did not rise to the level of a reallocation, could cause some discomfort for the recreational sector.

Amendment 53’s reallocation—if that’s what it was—was based upon data provided by the Marine Recreational Information Program, which revealed that anglers had been, and are, catching far more fish than managers had previously thought.  The increase in recreational landings estimates was largely due to MRIP’s use of the Fishing Effort Survey to estimate the number of trips made by recreational fishermen, as such survey found that the number of trips taken by anglers was at least 2 ½ times higher than estimated by the older and badly flawed Coastal Households Telephone Survey.  

After the recreational landings for the years 1996-2005 were recalculated using the Fishing Effort Survey methodology, and managers learned that such landings had been badly underestimated before, the Gulf of Mexico Fishery Management Council initiated Amendment 53, in part to correct that problem.

But now, a new issue has emerged.  A preliminary study, unveiled last year, now suggests that the Fishing Effort Study is overestimating the number of recreational fishing trips, perhaps by as much as 30 or 40 percent.   NMFS has embarked on a large-scale study to determine whether, and to what degree, the error in the Fishing Effort Study exists in all regions and in all fisheries.  Should that study find that recreational effort in the Gulf red grouper fishery was overestimated, and that recreational landings were thus overestimated as well, and should the logic that drove the allocation provisions of Amendment 53 still prevail, the Gulf Council could revisit the allocation question in a new amendment, and once again adjust each sector’s shares to match the newly available data.

Of course, any such action would whipsaw the “anglers’ rights” organizations that consistently support larger allocations for the recreational sector.  For example, the Coastal Conservation Association, speaking out of one side of its mouth, intervened in the red grouper litigation as a defendant supporting the validity of Amendment 53 and its increased recreational allocation based on Fishing Effort Survey data. 

The same CCA, speaking out of the other side of its mouth, aggressively rails against

“a federal management system…struggling to function due to uncertainty in the federal recreational data,”

and notes that

“errors in [NMFS’] recreational data program…is causing the over-estimation of recreational harvest by up to 40 percent for some species…managers will be forced to use the flawed data for management for several years as the system is analyzed.”

So, that organization already finds itself in the unenviable position of supporting an allocation that, if its own spokesman is to be believed, is based on flawed and uncertain data that may have overestimated recreational red grouper landings by as much as 40%.  If the supposedly faulty data is now revised so that it no longer overstates recreational landings, and the Gulf Council seeks to revise the red grouper allocation accordingly, the CCA will have to choose between accepting a smaller allocation based on revised and more accurate recreational landings estimates, or fighting to maintain a Amendment 53 allocation that, by its own admission, was based on “flawed data.”

One doesn’t need the gift of prophesy to accurately predict which option they’d select.

The court’s discussion of the bycatch issue should also give recreational fishermen pause.  It notes that

“in balancing the practical constraints [of limiting bycatch] and the Act’s competing objectives, the Fisheries Service had relied on the conclusion that [Amendment 53’s preferred] Alternative 3 ‘results in the smallest reduction in net economic benefits to the Nation of all the alternatives considered.”

Yet that conclusion was based on the same questionable economic analysis that caused the Court to remand Amendment 53 to NMFS, so

“the Fisheries Service may need to revisit whether further bycatch minimization is not practicable and provide additional support.”

That could further endanger Amendment 53’s allocation provisions, for as the Court notes,

“The Fisheries Service admitted that it did not consider measures to ‘directly reduce the bycatch of red grouper and other species.’  Instead, it referenced the potential future use of measures that had already proved insufficient, including ‘catch limits, in-season and post-season accountability measures, season and area closures, a minimum size limit, and a recreational bag limit,’ as well as gear requirements.  Beyond that, the Fisheries Service reasoned that bycatch will decrease because overall catch limits are being reduced.  But this approach suggests that virtually any allocation that reduces a catch limit will satisfy National Standard 9, at least so long as the Fisheries Service reasonably concludes that additional measures were not practicable.  The Fisheries Service appears not to have explained how that is a reasonable application of National Standard 9.  [citations omitted]”

Given that recreational hook-and-line fisheries, because of their size limits, bag limits, closed seasons and high levels of effort, often produce more bycatch, in the form of regulatory discards, than do related, quota-governed commercial fisheries, such language could easily bode ill for future reallocations in favor of the recreational sector.

At this point, it’s difficult to say which side will prevail in A. P. Bell Fish Company, Inc. v. Raimondo.  The opinion gives both appellants and appellees reasons for hope, and reasons for concern.  The important thing is that, so long as science-based catch limits remain in place, the final allocation will not put the red grouper at risk.

However, the Court’s decision makes it clear that setting allocations is not as simple as looking at past landings patterns and perpetuating them into an indefinite future.  The National Standards still apply, and the need to promote conservation and minimize bycatch, among other considerations, can still influence how regional fishery management councils make allocation decisions.

For, as I’ve noted many times before, allocations provide an opportunity to provide a better future for America’s fisheries.  They don’t require managers to preserve the mistakes of the past.

 

 

Sunday, March 3, 2024

WILL MAINE LOBSTER BENEFIT FROM LESSONS LEARNED?

Nearly a decade ago, I wrote a piece for the Marine Fish Conservation Network’s “From the Waterfront” blog called “A Lesson from Lobsters.”  It described how the Atlantic States Marine Fisheries Commission’s American Lobster Management Board received very clear scientific advice telling it that the Southern New England stock of lobster was in significant trouble and how, instead of taking the only action that might have helpt the stock rebuild, the Management Board hemmed and hawed, and did everything within its power to avoid taking the needed action, thus causing the stock to enter a steep and very probably permanent decline.

Today, the ASMFC admits that the Southern New England lobster stock is experiencing

“record low abundance and recruitment…[and] remains severely depleted with poor prospects of recovery.”

Fortunately, at the time the last benchmark stock assessment for lobster was released in 2020, the Gulf of Maine/Georges Bank stock was not only doing well, but was at a record high level of abundance.

Of course, in the ocean, nothing remains the same, and the ASMFC now reports that

“since 2012, lobster settlement surveys throughout the [Gulf of Maine] have generally been below the time series averages in all areas.  These surveys, which measure trends in the abundance of juvenile lobsters, can be used to track populations and potentially forecast future landings.  Persistent low settlement could foreshadow declines in recruitment and landings.  In the most recent years of the time series, declines in recruitment indices have also been observed.”

This time, the Management Board didn’t sit on its hands, and instead adopted Addendum XXVII to Amendment 3 to the Interstate Fishery Management Plan for American Lobster, in order to increase protection of the Gulf of Maine/Georges Bank lobster stock in May 2023.  Addendum XXVII provides that, if managers observe a 35% decline in the recruit abundance index for any management area (compared to the three-year average index during the years 2016 through 2018), changes must be made to the gauge used to determine whether a lobster is legal-sized and, in some areas to the size of the escape vents in lobster traps.

When Addendum XXVII was adopted, no one realized how soon the recruit abundance trigger was going to be tripped.  Just five months later, the American Lobster Technical Committee informed the Management Board that when 2022 data was added to the recruitment time series, the recruitment abundance index for the Gulf of Maine region fell 39% below the 2016-2018 average, and that more restrictive management measures would thus be required.  The first of those measures, increasing the minimum gauge size (which measures the lobsters’ carapace from the back of the eye socket to the back of that shell) from 3 ¼ to 3 5/16 inches, would originally have been put in place no later than June 1, 2024

However, due to practical difficulties associated with the unexpected announcement, including the need to manufacture now size gauges and get them into the hands of lobstermen, the Management Board agreed to Maine’s request to defer the new size limit to January 1, 2025.

Even with that delay in implementation, Maine’s lobstermen aren’t pleased with the new management measure.  As is typically the case when fishermen challenge new regulations, they expressed doubts about the science while expressing economic concerns.

The data used to determine the number of juvenile lobster recruiting into the stock is developed through annual surveys, using trawls and ventless lobster traps, conducted by Maine’s Department of Marine Resources.  Conducting the survey in a similar manner each year allows Maine fishery managers to create an index that can be used to gauge annual recruitment success.  It was that index which suggests a recent, significant decline in recruitment.

Maine lobster landings also suggest that there are fewer lobster around today than there were a few years ago.  Such landings reached an all-time high of 132 million pounds in 2016, but have declined since then, falling to just 98 million pounds in 2022.  According to an article in The Ellsworth American, a Maine newspaper, Patrick Kelliher, the Commissioner of the Department of Marine Resources, predicted that when 2023 landings data is finalized,

“We’re going to be quite a bit less than 100 million.”

Predictably, fishermen question the data, with The Ellsworth American reporting that

“some fishermen, like Jack Merrill of Cranberry Island, told [fishery managers] that they are seeing a boom in lobsters ‘egging out’ or females bearing eggs that will grow into adult, legal-sized lobsters to catch…

“’Right now, there’s so many eggers—there’s too many of them, and it’s only going to get worse,’ Merrill said.”

Exactly how one determines that there are “too many” reproducing females, or why having even more such females makes things “worse,” was never made particularly clear.

Merrill was also apparently concerned that the minimum size increase would have a negative financial impact, in part because small lobsters sell well, being less expensive than larger individuals, and also because the increase in minimum size will not impact Canadian lobstermen, who can continue to retain the smaller individuals. 

Merrill noted that, given market conditions, Canada has no incentive to increase its minimum size.  Another lobsterman, eyeing he Canadian fishery, reportedly made the defiant statement that

“I am not going to throw a lobster over that’s going to go to Canada”

to be caught and sold there.

However, Commissioner Kelliher was adamant about the need for management action, if Gulf of Maine lobster are to escape the fate that overcame the Southern New England stock.  He told lobstermen

“What we did see in southern New England was a complete failure of management to act in time once the decline started.  Management [in Maine] wanted to ensure that did not happen in the most valuable fishery in the state.”

As he patiently explained,

“The whole idea is to avoid a crisis.”

Commissioner Kelliher, it seems, did learn the lesson taught by the Southern New England lobsters, and has taken it to heart.

And that’s a good thing, for a failure to respond quickly to a fishery’s problems only makes it more likely that they’ll get worse.

That was borne out in a 2006 paper published in the ICES Journal of Marine Science, titled "Delay in fishery management:  diminished yield, longer rebuilding, and increased probability of stock collapse,” in which the authors simulated how eight overfished fish stocks, each with different characteristics, would be affected by varying lengths of delay before implementing fishery management measures needed to end overfishing and rebuild the stock.

The researchers concluded that

“Delay can cause markedly more severe management measures to be needed for rebuilding a stock…In our simulations, increasing delay in management increased the number of years a stock was below its [Minimum Stock Size Threshold].  Conversely, prompt management decreased the likelihood that a rebuilding plan would become necessary.

“Related to rebuilding plans is the recovery time frame.  As shown by our simulations, the required time frame increases with delay in management.  Consequently, delay may lead not only to more severe regulations, it also lengthens their duration, in some cases by decades.

“Our simulations indicate that delay in management can lead to stock collapse…In fisheries, economic collapse may occur prior to stock collapse…”

All of those things were known nearly a decade before the Management Board confronted—and ultimately did nothing meaningful to prevent—the decline of the southern New England lobster.

Fortunately, it appears that in the case of Maine lobster, managers are far more willing to confront their problems head-on, and act to address them.  For as the researchers also note,

“Another fact often overlooked—or perhaps considered an acceptable risk—is that some stocks, after being fished to low levels, have failed to recover, even under stringent management.  Thus, it seems entirely possible that “rational” delay can lead to the point of no return.  Although one cannot ignore the influence of favorable stochastic events on population and fishery dynamics, it hardly seems prudent to bet on them.”