Sunday, September 11, 2016
A BAD LAW IN NEW YORK
Last 4th of July, my wife and I were about 12 miles east of Fire Island Inlet, New York, fishing in 60 or 65 feet of water, trying to find a few fluke.
It was a tough slog. Most years, the various lumps and holes off Fire Island host good numbers of squid, and there are usually some pretty nice fluke hanging around, feeding on the squid and vulnerable to well-presented baits.
This season was different. Fluke were still chasing the squid, but squid were hard to come by; normally productive structure waqs uncharacteristically barren, and I was seeing only the occasional light-blue scratch, showing squid hovering over the bottom, on my fishfinder. Fluke fishing had not been productive.
On that sort of day, I pay more attention to my electronics than to the rod in my hand, and my mind tends to wander, thinking about where to go next and what piece of bottom might be holding enough bait to attract a few decent fish.
Maybe that’s how the school of big fish got so close to the boat without being noticed.
There were at least three dozen of them, possibly more than fifty, and the smallest was at least three feet long. At first, I wasn’t sure what they were. In early July, you expect to see bluefish, and maybe striped bass, two or three miles south of Long Island. But these fish were neither.
Their backs were too dark. Too much of their bulk was pushed forward, into broad shoulders, giving them a front-heavy, wedge-shaped appearance that was completely at odds with a slim bluefish or streamlined striper. I was hoping that a bucktail dragged in front of their noses would help end the mystery, but before I could grab a casting rod launcher, the fish suddenly spooked and were gone.
As they disappeared, a grayish-bronze flank flashed in the sun.
It had been a school of black drum.
Had they not made such a hasty exit, and had they given me the chance to hook up, fight and ultimately bring one of them into the boat, I probably would have violated New York State law, not because I caught the fish, but because I almost certainly would have let it go.
Yes, you read that right. The New York State Environmental Conservation Law, Section 13-0337, Subsection 2, declares that
“Starfish, drills (Urosalpinx cineria), periwinkles (Litorinia) and drum fish (Pogonias chromis) when taken shall not be returned to the waters of the state.”
All of those listed creatures eat shellfish, and predators naturally compete. So the most effective shellfish predators in New York, the state’s shellfish industry, decided that life would be a lot more profitable if they could kill off their competition.
That is just what ECL Section 13-0337 is designed to do.
It’s an old idea, going back to the days of royal gamekeepers over in Europe, who were hired to kill off any hawks, weasels, wolves, lynx or anything else (including human poachers) who might make their living dining on the nobility’s grouse or the king’s deer.
The same sort of thinking crossed over to the west side of the ocean and gave birth to similar notions of killing predators so that people might kill more of their prey.
Beginning in the late 1800s and extending into the mid-20th Century, both Maine and Massachusetts paid a bounty for every seal killed, in hopes of making more fish available to such states’ commercial fisheries. Such effort almost certainly depleted the local gray seal population, and now that the seals are recolonizing their former range, some are calling for federal laws protecting the animals to be amended, so that people may legally kill them again.
While such attitudes are newly resurgent in New England, they never died out in the West. The United States Department of Agriculture maintains a Wildlife Services agency which spends most of its time and most of its taxpayer dollars shooting, poisoning and trapping cougars, bears, wolves, coyotes and any other meat-eating critters with the temerity to eat someone’s sheep or cow.
The fact that a lot of that killing takes place on public, federal lands, which don’t belong to the livestock’s owners, seems irrelevant to Wildlife Services, even though most taxpayers would probably rather either see such predators remain alive and accessible to hikers, hunters, photographers and the public as a whole.
In the same manner, the shellfish industry, abetted by the State of New York, have usurped the public’s right to access and enjoy black drum.
That might seem to make little difference because, for many decades, black drum have been only occasional visitors to New York’s coastal waters. However that wasn’t always the case. In his 1999 book, Heartbeats in the Muck, A Dramatic Look at the History, Sea Life and Environment of New York Harbor, ichthyologist John Waldman notes that
“Black drum, absent for a century, were the scourge of Staten Island oyster planters and were commonly caught around Manhattan to weights of seventy pounds, the Harlem River and the Battery being prime locations.”
Now, after a long absence, it appears that black drum are trying to return to local waters. My friend John McMurray, who owns and operates One More Cast Charters, ran into schools of big black drum on the surface, not too far from Staten Island, for two consecutive summers less than ten years ago.
I suspect that those encounters left John a serial violator of the Environmental Conservation Law, because I don’t believe that he or his customers killed any of the fish…
And there’s no reason why they should have.
With striped bass always riding a teeter-totter between abundance and decline, with bluefish notoriously “cyclic” (whatever that means, but they do seem to suffer wide swings between being seemingly everywhere and being dismayingly scarce), and with weakfish even more “cyclic” than the blues, few anglers would complain if another big, hard-fighting fish moved into the neighborhood.
It is moving season. Steadily warming waters, which aren’t expected to start cooling down any time soon, are pushing fish such as black sea bass farther up into New England. Warmer winters will probably have a negative impact on striped bass spawning and, hence, abundance, and it’s not impossible that environmental changes could also be causing other things that scientists are seeing, such as poor summer flounder recruitment.
It would sure be nice if warming waters could bring us some good as well, such as the return of black drum.
Section 13-0337 of New York’s Environmental Conservation Law is just another misconceived attempt at ecosystem engineering, that tries to place blame for the loss of New York’s shellfish on the black drum, oyster drills and starfish, which have coexisted with clams and oysters for millennia without doing any harm (I’ll leave periwinkles out of the discussion, as they’re an invasive species native to Europe, which appeared in local waters during the 1880s), while ignoring the real cause of the molluks’ decline.
As Waldman notes elsewhere in his book,
“Long a mainstay of the Indians of the region, oyster beds stretched from Croton-on-Hudson to Raritan Bay—perhaps 350 miles of shelled bottom. European settlers were soon eating oysters raw, broiled on coals, boiled in fat, and preserved in vinegar…the Carwitham Map, depicting the harbor in 1730, depicts the entire cove that forms the New Jersey shore of the Upper New York Bay as one gigantic oyster reef.
“…Although a craze for the ‘luscious bivalves,’ as they were actually called, peaked in the United States in the mid- to late 1880s, oystering in New York Harbor decline because of overharvest, siltation stirred up by channel dredging, and increased pollution…particular beds were gaining reputations for producing oysters that tasted like petroleum…”
Such events didn’t only happen in New York Harbor. An article that appeared in the New York Times on July 25, 1985 was titled, “Overfishing and Pollution Imperil Clam Industry,” and went on to say that
“The Long Island clamming industry, once the nation’s leader, has fallen into a decline that experts fear could lead to virtual extinction.
“…Overfishing and pollution have been blamed for the clam shortage, and scientists believe the harvest must be limited before the stock becomes exhausted.
“As increased urbanization has polluted fisheries, baymen have been forced to concentrate on those that remain. As a consequence, more clams have been taken than have been replaced.
“…The baymen, who say they are barely surviving under current conditions, vigorously oppose restricting the catch. Instead, they hold out hope that nature, in time, will replenish the waters.
“’God will take care of it,’ says Tony Viggiano, leader of a baymen’s group here. ‘He can make more clams by accident than man can think about.’
“…Almost everyone agrees that clam stocks were diminished by widespread illegal harvesting during the late 1970’s. Harvesting the seeds – juvenile clams less than an inch thick – eventually cut the adult population…
“Moreover, poaching clams from polluted waters was widespread until a few years ago…
“Poaching was popular among the baymen, Mr. Viggiano said, because they believed that fishing restrictions were unnecessarily harsh and that clams in restricted areas were healthy…
So it becomes very clear that the loss of New York’s shellfish beds weren’t due to black drum. Or due to starfish. Or oyster drills.
That, in turn, makes it clear that ECL Section 13-0337 is a very bad law, which should be promptly repealed.