Last
October, I was trolling east off New York’s Fire Island when
I happened to glance out to sea. Off in the distance, perhaps two or three
miles south of where I was fishing, I noticed a party boat anchored up over an
inshore wreck.
Normally,
that wouldn’t be particularly remarkable. Party boats take anglers out on wreck
trips throughout the season, seeking fish such as cod, red hake (more often
called “ling”), black sea bass and scup. In early October, black sea bass and
scup would be the most likely targets. The only problem was that the wreck was
in federal waters, more than three miles from shore, and in early October, the
federal black sea bass season was closed, although the season in state waters
remained open.
I can’t say for certain
that the boat had black sea bass on board. I didn’t run out to see what it was
catching, and I didn’t run back to its home port at Captree State Park to
see what the anglers took home. Given the time of year and where it was
fishing, there’s no doubt that black sea bass were caught. Human nature being
what it is, it’s almost as certain that some of those black sea bass were
retained, in complete disregard of the law.
The
unfortunate fact is that any anglers who did keep black sea bass that day could
be very confident that they would get away with breaking the law.
The National Marine
Fisheries Service (NMFS) has exactly one law enforcement agent on all of Long
Island, and though he does an exemplary job, he just can’t be everywhere at
once. At-sea enforcement is largely the domain of the Coast Guard, which is far
too busy to stop and board party boats on a regular basis, and the Enforcement Division of the New York State Department of Environmental
Conservation, which is shorthanded and overworked at the best of
times. It rarely, if ever, has the time to patrol off the coast just in case a
violation may be taking place.
And
once the party boat pulled anchor and came within three miles of shore, it
would be virtually impossible to prove that any black sea bass on board were
not caught legally, within state waters.
We
can only speculate about how many party boats, charter boats and
privately-owned vessels figured that the odds were on their side, and took
black sea bass from federal waters when the federal fishing season was open,
but the state season was closed. However, the smart money says that that it was
more than a few. The state’s failure to conform its season to that in effect in
federal waters undoubtedly created too much temptation for some people to
resist.
Of course, it isn’t
always the state’s regulations that create the problem. Throughout the mid-Atlantic
and southern New England, the illegal harvest of tautog, also known as “blackfish,” has helped to deplete the stock and
made it very difficult to manage successfully. In New York, both recreational
and commercial tautog fishermen are strictly regulated; the number of
commercial food fish licenses is strictly limited to better protect fish
stocks.
However,
there are no federal regulations for tautog at all, and New York offers a
commercial fish landing license to anyone who owns a boat and is willing to pay
the $500 annual fee.
The
fish landing license doesn’t permit its holders to fish commercially within New
York’s waters; they would need a food fish license for that. It merely permits
a fisherman to catch fish in federal waters or the waters of another state and
land them at a New York port.
In
reality, fishermen unable to obtain a food fish license are purchasing the
landing license instead and using it as cover to land tautog caught illegally
within state waters, while claiming that the fish came from federal waters
farther offshore. Once again, a vast ocean and a dearth of enforcement
personnel makes it very unlikely that such illegality will be detected.
Legislation has been
introduced in both the
state Senate and state Assembly to ban selling tautog pursuant to the landing license,
but its passage remains up in the air.
In the Gulf of Mexico,
state regulations that are far more generous than those imposed by federal
managers have created real difficulties in the red snapper fishery. In Texas,
for example, the season is open all year, and anglers may keep four red
snapper, with a minimum size of 15 inches, each day. The federal season, on the other hand, is only 9 days long this year, with a two-fish bag limit and
a minimum size of 16 inches.
The other Gulf states have
regulations that are more restrictive than those of Texas, but less restrictive
than those imposed on anglers in federal waters. Because red snapper are
managed as a single stock throughout the Gulf of Mexico, and because fish
landed anywhere in the Gulf are counted against the federal catch limit, the more liberal state
regulations force federal managers to impose more restrictive regulations than would be required if the state
and federal rules were the same.
In addition, keeping
state waters open while federal waters are closed creates an irresistible temptation for many anglers to cross over the boundary and
illegally harvest red snapper in the closed area.
A few years ago, the State of Louisiana
actually encouraged such misconduct by unilaterally declaring its state
waters to extend more than ten miles from shore, instead of the three miles
recognized by federal law. The U.S. Coast Guard
eventually addressed the situation by
issuing citations to any anglers caught possessing red snapper more than three
miles from shore during the federal closure.
That argument was
rendered moot for this season, as Senator Richard Shelby (R-AL) inserted a
rider into the Omnibus Budget Bill that extended state fishery
management jurisdiction in the Gulf of Mexico out to nine miles from shore. However,
the temptation for anglers to venture out more than nine miles, to fish in
closed federal waters, remains.
While
states have little recourse when more liberal federal regulations tempt
fishermen to go out of compliance with state rules, NMFS has a powerful tool
available to address the problems that arise when lax state regulations
threaten federal fisheries management programs.
It is found in Section
306 of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens),
and provides that
“If
the Secretary [of Commerce] finds…that
A)
the fishing in a fishery, which is covered by a fishery management plan
implemented under this Act, is engaged in predominantly within the exclusive
economic zone and beyond such zone; and
B)
any State has taken any action, or omitted to take any action, the results of
which will substantially and adversely affect the carrying out of such fishery
management plan; the Secretary shall promptly notify such State and the
appropriate Council of such finding and of his intention to regulate the
applicable fishery within the boundaries of such State (other than its internal
waters), pursuant to such fishery management plan and the regulations
promulgated to implement such plan”
Such
provision would seem tailor-made to address the current problems in the Gulf
red snapper fishery. Unfortunately, in the real world of politics, any effort
to do so, particularly when Congress is in the midst of reauthorizing
Magnuson-Stevens, would almost certainly result in the provision being deleted
shortly after it was first used, leaving federal managers with no means to
convince or coerce balky state managers into compliance with federal fishery
management plans.
It is
an unfortunate situation, for in a world where some fishermen will seek to take
advantage of any inconsistency between state and federal fishery management
programs, the long-term health of America’s marine resources is far better
assured when state regulations conform to those imposed by federal fisheries
managers.
_____
This essay first appeared in "From the Waterfront," a blog of the Marine Fish Conservation Network, which may be found at http://www.conservefish.org/blog/
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