When the biologists don’t give any relief, call out the
lawyers.
That seems to be the approach being taken by the industrial
fishing fleet on the East Coast, which is doing its best to impede efforts to
manage forage fish stocks.
Most
recently, two attorneys from the Washington D.C. office of Kelley
Drye and Warren LLP, a firm that frequently carries water for Omega Protein
and other large-scale forage fish harvesters, have placed an article in
the June issue of National Fisherman,
in which they try to cast doubts on current efforts to manage what we know as
“baitfish.”
It’s probably not a coincidence that the opinion piece
appeared just as the Mid-Atlantic Fishery Management Council was preparing to further
refine its proposed Unmanaged
Forage Omnibus Amendment.
As you
read this, hearings on the amendment are being held.
This isn’t the first time that Kelley Drye tried to roil the
forage fish waters on behalf of the industrial fleet. Back in
2014, acting on behalf of Omega Protien, the firm submitted a letter to the
Mid-Atlantic Council, in which it tried to derail early efforts to protect
the region’s forage fish base.
That effort failed, and the Council decided to move forward
with the Omnibus Amendment. Now, it
appears that Kelley Drye is again trying to convince the Council to leave
forage species vulnerable to the firm’s corporate clients.
The National Marine Fisheries Service has long recognized
the importance of healthy forage fish stocks, noting in its National
Standards Guidelines that
“consideration should be given to managing forage fish stocks
for higher biomass than Bmsy [the usual biomass target in fishery management
plans] to enhance and protect the marine ecosystem.”
That statement alone should be sufficient to put forage fish
management on the front burner for federal fishery management councils. However, the document that has had the
greatest impact on the past few years were not NMFS’ Guidelines, but rather a
report entitled Little Fish, Big Impact, which was
issued by the Lenfest Ocean Program in 2012.
That so-called “Lenfest Report” has inspired conservation
advocates to initiate efforts to adequately protect the ocean food web, which
efforts generally promote the report’s recommendation that
“Targets and limit reference points for forage fish need to
be more precautionary than those that have been relied upon in the past (such
as maximum sustainable yield)…establishment of a minimum biomass threshold is
an essential element of sustainable forage fish management…temporal and spatial
measures are also important tools for protecting forage fish and their
predators. Ecosystem-based management of
forage fish will most likely require a blend of strategies to assure that
policies are sufficiently risk-averse, and to prevent significant impacts to
both the forage fish population and its dependent predators.” “
The report recognizes that, in an ideal world, management
measures would be tailored to perfectly fit each different forage fish
stock. However, it also recognizes that
fishery managers lack both the time and the data to achieve such
perfection. Thus, the report presents an
approach to forage fish management that
“will prove widely useful in holistic management of forage
fish fisheries because it is flexible enough to be applied in data-rich
situations as well as low-information scenarios. The results and recommendations contained
within [the] report advance scientific understanding and provide necessary and
credible guidance for applying an ecosystem-based approach for management of
forage fish species.”
The key to the
Lenfest Report’s approach is the notion that
“Precautionary management is necessary for three fundamental,
but not mutually exclusive, reasons:
·
Forage fish abundance can be difficult to
quantify, and they exhibit large variations in abundance over space and time.
·
Forage fish are prone to booms and busts with
large associated impacts on dependent organisms.
·
Single-species quotas have shortcomings that are
most apparent when applied to this group.
For example, despite massive landings, even these apparently prolific
fish are susceptible to population collapse when the effects of fishing and
unfavorable environmental conditions act together.”
As the Mid-Atlantic Council moves toward adopting meaningful
measures to protect forage species, it would appear that Kelley Drye’s strategy
to derail such efforts involves discrediting the Lenfest Report.
The tactics they use will be familiar to anyone who
remembers the O.J. Simpson trial.
There’s an overwhelming body of evidence against the attorneys’ clients—in
this case Omega and the industrial fleet—so they can’t present a fact-based
argument and hope to prevail. Instead,
they take snippets of fact, separated from the context in which they originally
appeared, that appear to contradict the notion that forage fish management is
needed, and hope to create enough doubt in Council members minds to scuttle the
effort.
For example, the authors of the Kelley Drye opinion piece
write that
“Regarding application to specific species, it is important
to first highlight there is no common definition of ‘forage fish.’ It is, rather, a loosely formed concept,
given how many marine organisms (and not just finfish) can be labeled important
prey species for a given ecosystem or for just one species.”
That’s hardly reason to impugn the Lenfest Report, given
such report’s stated intent to provide framework flexible enough to manage
forage species in a host of situations.
The report specifically states that
“We understand that every ecosystem is unique and would
benefit from tailor-made solutions that account for individual characteristics,
management structure, and research capacity of each system.“
and goes on to explain that its intent was not to address
species- or ecosystem-specific recommendations, but to devise an approach that
would be generally applicable to forage fish stocks.
Then the Kelley Drye lawyers try to cast doubt on the
report’s recommendations—which, it should again be noted, are in line with NMFS
guidelines—to manage forage fish with higher abundance targets than those used
for predator species, by citing an Atlantic States Marine Fisheries Commission
report that rejects some biomass guidelines included in the Lenfest document
“in part because menhaden do not exhibit the stock-recruit
relationship assumed in the Lenfest paradigm.
(That is, menhaden recruitment is driven by environmental factors,
rather than spawning stock size.)”
But that statement, too, casts more doubt on the lawers’
comprehension of the report than on the Lenfest Report itself, as the report clearly
noted that
“steepness…is defined as the recruitment one obtains at 20
percent of the unfished biomass…
“[I[n light of the recognition that the biomass of forage
fish fluctuates considerably, it is more appropriate to think of steepness
conditioned on the environmental regime.”
Which means that the Lenfest Report already contemplates, and
has incorporated, exactly the situation confronted by menhaden managers; the
example cited by Kelley Drye further actually provides greater validation for
the report’s conclusions—although that clearly was not the lawyers’ intent when
they raised the issue.
Other criticisms follow similar lines, creating straw men
that the Kelley Drye authors can then knock down, and hopefully (from their
point of view) create doubt as to the wisdom of forage fish management.
I’m an attorney myself, so I can sympathize with what they
are doing, trying their best to advance the dubious cause of a client on the
wrong side of the facts.
And I can understand why they’re doing it, too. They’re the mouthpiece for Omega Protein,
which makes millions of dollars each year by killing millions of pounds of
menhaden (just in
Virginia, commercial menhaden landings in 2014 were more than 325 million pounds,
the vast majority of which were caught by Omega).
Should conservationists succeed in reducing menhaden
landings, Omega might well need to dispatch its boats after other forage species
that it will also turn into oil and fish meal, to be sold to chicken farmers
and aquaculture operations here in the U.S., and exported to similar buyers in
China and elsewhere.
Commercially, forage fish don’t bring a lot of money per
pound (the Virginia
menhaden mentioned above were worth less than 8 cents per pound), so they
have to be killed in vast numbers to be profitable. Only Omega and some of the other big
fisheries corporations have vessels capable of that sort of high-volume
harvest. Those are the same sort of
corporate clients that can afford Kelley Drye.
But in the end, we should all be aware that the Mid-Atlantic
Council’s forage fish effort doesn’t rely on the Lenfest Report. Nor is it currently trying to impose any
specific management scheme on any forage fish stock. So all of Kelley Drye’s writing sort of
misses the point.
Right now, all that the Council is trying to do is “freeze
the footprint”; that is, it is trying to prevent Omega Protein or anyone else
from embarking on a large-scale slaughter of forage fish before biologists have
had an opportunity to determine how any such fishery will affect both the
forage fish and the ecosystem as a whole.
The intent is to protect the forage fish stocks from harm
before it is done, rather than repairing what could be substantial damage. Existing fisheries will not be shut down, but
new fisheries will have to be conducted pursuant to scientific oversight that
will prevent them from exceeding optimum yield, whatever that is ultimately
determined to be.
It’s a wise and rational plan.
Whatever you might fish for—bluefish or bluefin, striped
bass or sharks—they certainly need forage fish to thrive. If you’re a whale watcher or pelagic birder,
well, those critters need forage fish, too.
So you’re well advised to go to the Mid-Atlantic Council’s
website, take a look at the Public
Hearing Document for the Unmanaged Forage Omnibus Amendment, and send
in some supporting comments before the June 17 deadline.
Because sure, the industrial fleet is blowing smoke, trying
to obscure the need for forage fish conservation.
But nothing clears away smoke better than a breath of fresh
air, and that’s what your comments can provide.
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