Thursday, May 26, 2016


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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