Thursday, August 17, 2017
I was skimming some fishery management headlines the other day, when one caught my eye.
It was from the Louisiana Record, and announced that “Environmental groups’ suit over extended red snapper season lacks facts, policy expert says.”
That struck me as interesting, because I’m a lawyer who tends to follow fisheries-related lawsuits when they arise.
I’ve read the complaint in the lawsuit in question, which challenges the National Marine Fisheries Service’s decision to reopen the private-boat recreational red snapper season in the Gulf of Mexico, and am generally familiar with the standards that apply to judicial review of agency actions, so I thought that I’d read a bit further.
It turns out that the “policy expert” in question was Jeff Angers, the president of a group called the Center for Sportfishing Policy, which has enthusiastically supported the extended red snapper season, Angers saying that such extension
“is a fix—albeit a short-term fix—that will allow millions to enjoy one of America’s greatest pastimes and boost economies far beyond the Gulf of Mexico—including the manufacturing and retail sectors in non-coastal states.”
So it’s pretty clear that Angers, in making his statement to the Record, wasn’t speaking so much as an independent “expert,” but rather as an advocate for an organization that represents the fishing tackle industry, the boatbuilding/marine trades industry and some anglers’ rights groups, none of which want to see the lawsuit succeed.
And that’s probably a good thing because, throughout the article, Angers sounded like many advocates in today’s post-truth world, who make a host of assertions—some self-contradictory—in an effort to sway public emotion, and thus public opinion as well.
According to the Louisiana Record, Angers criticized the lawsuit brought against NMFS because
“We do not know if the Gulf states are going to exceed their historical catch, and the plaintiffs do not know that either.”
It’s a simple sentence that’s worth a more complex discussion.
Let’s pick the lowest-hanging fruit first. “Historical catch” is a red herring.
Whether or not overfishing occurs does not depend on whether anglers in the Gulf states exceed their “historical catch,” but whether they exceed the annual catch limit established by NMFS which, for 2017, is 3,755,094 pounds (the annual catch target, set 20% below the catch limit to account for management uncertainty, is slightly more than 3 million pounds).
Furthermore, anglers have chronically overfished their annual catch limit, so badly that in 2014, a federal judge in the matter of Guindon v. Pritzker ordered NMFS to adopt measures to hold anglers accountable for their incessant overfishing. Even such accountability measures failed to adequately address the problem; last year, recreational private-boat fishermen exceeded their annual catch limit by 25% and their annual catch target by 56%.
So even if the Gulf states’ anglers only managed to equal, but not exceed, their historical landings, they’d still be overfishing. Angers’ comment re historical landings is thus nothing more than a factually and legally irrelevant distraction.
The rest of his statement is no better.
When someone challenges a NMFS decision, such as the reopening of the Gulf red snapper season, a court is not allowed to substitute its judgment for that of the agency, and the plaintiff is not required or permitted to produce new evidence to prove its case. Instead, pursuant to the relevant provisions of the Administrative Procedures Act, the court must review that administrative record and set aside any agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Thus, it’s irrelevant that no one currently knows for certain what the final 2017 landing might be. All that matters is that the National Standard 1, contained in the Magnuson-Stevens Fishery Conservation and Management Act, says that
“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield for each fishery for the United States fishing industry. [emphasis added]”
and that, in issuing the temporary regulation that reopened the private-boat recreational red snapper season, NMFS admitted that
“this approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.”
The record shows that NMFS took an action that it clearly believes will “necessarily” lead to overfishing, something that federal law expressly prohibits. Angers’ “expert” opinion to the contrary, those are the only “facts” the plaintiffs need to succeed in their lawsuit, as NMFS’ action is clearly “not in accordance with law” and must be held improper by the reviewing court.
But, it’s possible--although impossible to know with any certainty--that, deep in his heart, Jeff Angers really knows that the reopening will lead to overfishing.
After all, in the statement that he issued as president of the Center for Sportfishing Policy, he celebrated the fact that the reopening “will allow millions to enjoy one of America’s greatest pastimes [emphasis added].” And by “one of America’s greatest pastimes,” he clearly was making a specific reference to red snapper fishing, rather than fishing in general, because the reopening only affected that particular species.
So let’s think about the implications of that…
“Millions” is a plural noun; while it could be used for an infinite number of values, the very smallest value it can represent is 2,000,000. So to avoid any exaggeration, let’s assume that only 2,000,000 anglers, and no more, will engage in red snapper fishing during the extended season.
Next, consider that the mean weight of all red snapper caught in the Gulf of Mexico last year was around 7 pounds, and that such mean weight has been increasing in the most recent years.
Finally, remember that the 2017 catch limit for private-boat recreational red snapper fishermen in the Gulf of Mexico is around 3.75 million pounds, with an annual catch target of 3 million pounds.
Simple arithmetic demonstrates that if “millions” of anglers allowed to participate in the red snapper fishery during the extended season catch just one average-sized snapper each—not hard to do, since red snapper are usually more than willing to eat whatever is dropped down in front of them; they don’t call them “snappers’ for nothing—the total recreational landings during the extended season will be around 14 million pounds, four times the annual catch limit.
And that doesn’t count any fish caught before the reopening occurred in mid-June.
Everyone won’t necessarily catch a red snapper, so we have to admit that if only half of those “millions” of anglers land one, they’ll land only 7 million pounds, and only overfish the recreational catch limit by 100%.
Thus, while Angers alleges that the plaintiffs in the conservation groups’ lawsuit don’t know the facts about red snapper landings, it seems that it may be he and the other critics of NMFS' red snapper management program who are factually challenged.
It’s possible that they really don’t know whether the red snapper stock is going to be overfished during the extended season, because they do know that their claims of “millions” taking advantage of the reopening is a gross exaggeration, which they used solely for emotional impact, even though it was probably wrong.
On the other hand, they really might believe that “millions,’ or at least something close to a million, additional trips will be made, in which case it's hard to believe that they don't also realize that the private-boat angling sector will, as NMFS has predicted, “substantially exceed its annual catch limit.” If that is the case, the protestation quoted in the Record was nothing but smoke that might further befuddle the public.
And that’s the problem that all of the folks who keep attacking NMFS’ red snapper management have with the facts. Those facts just don’t point in the same direction that the folks want to go.
And that’s why “alternative facts” can prove so useful. They can point in any direction.
They can even point in two different directions at the same time.
Sunday, August 13, 2017
On August 10, the National Marine Fisheries Service announced that it would issue an exempted fishing permit that would allow a commercial fishing operation to engage in “pelagic longline research” off the east coast of Florida, in an area that had been closed to longlining since 2001.
The closures were adopted as an important fishery conservation measure. As noted in the Final Environmental Assessment issued in respect of the exempted fishing permit,
“The closures were implemented to reduce bycatch and incidental catch of overfished and protected species by [pelagic longline] fishermen who target [highly migratory species]. At the time, Atlantic blue marlin, white marlin, sailfish, bluefin tuna, and swordfish were overfished, and bycatch reduction was a component of rebuilding efforts. In particular, the U.S. was implementing a 1999 swordfish rebuilding plan, and the closure helped reduce bycatch of juvenile swordfish. Several other laws required that NMFS address bycatch in [highly migratory species] fisheries, including the [Endangered Species Act], which required reductions in sea turtle take in the [pelagic longline] fishery. National Standard 9 of Magnuson-Stevens Act also requires that fishery management plans minimize bycatch and bycatch mortality to the extent practicable.”
Pelagic longlines have a bad—and well-deserved—reputation as bycatch-prone gear, and it’s not surprising that the issuance of the exempted fishing permit met with strong opposition from the recreational fishing community, which will have to compete with the longliners both for the available swordfish and for the many other species that the longliners kill as bycatch.
In February, The Center for Sportfishing Policy sent NMFS a letter opposing the exempted fishing permit, which was co-signed by a number of other organizations, including the American Sportfishing Association, the National Marine Manufacturers Association and the Coastal Conservation Association. The letter informed NMFS that
“…our organizations see no legitimate need for the proposal and have a great deal of concern on the potential impacts of the proposed research. According to the Draft Environmental Assessment issued by NMFS, if the [exempted fishing permit] is approved and research is conducted for the three years requested, an additional 5,499 undersized swordfish, 759 billfish and 6.135 sharks that are prohibited from retention will be killed over and above what would take place in the [pelagic longline] fishery if the [exempted fishing permit] was not issued. These estimates are a grim reminder of the threat that efficient, indiscriminate longlines pose to conservation gains not just in the [closed area], but in all of the world’s oceans…”
The venerable International Game Fish Association, one of the original members of the Center for Sportfishing Policy, wrote its own letter to NMFS opposing the issuance of the exempted fishing permit, arguing in part
“We are also concerned with projected blue marlin and sailfish bycatch. Blue marlin are currently overfished and experiencing overfishing and even a modest increase in bycatch mortality from the [exempted fishing permit] is not acceptable to IGFA and its members. Sailfish represent the highest projected billfish bycatch (424 fish annually) from the proposed [exempted fishing permit]. IGFA would like to emphasize that the results of the 2016 western Atlantic sailfish stock assessment are equivocal.
“While the assessment reports that it is “not likely” that the stock is overfished or experiencing overfishing, the ICCAT Standing Committee on research and statistics has stated that: ‘Both the eastern and western sailfish stocks may have been reduced to stock sizes below [the biomass that would produce maximum sustainable yield].’
“The IGFA is cognizant that the US continues to struggle to fully capture its ICCAT swordfish quota and that there are concerns the quota underage may be reallocated to other countries who’s [pelagic longline] fleets do not fish by the same conservation standards as ours. Nevertheless, we do not feel that this international issue justifies compromising the conservation benefits gained from implementing the [closed area]…”
Yet another of the Center for Sportfishing Policy’s founding organizations, The Billfish Foundation, told NMFS that
“Authorizing longline gear to fish within the Closed Zone could cause the conservation successes gained to be reversed. No reasonable explanation can be given to consider the [exempted fishing permit] application, other than once an application is received the NMFS must give it review and public notice.
“Why not continue to build upon the realized conservation successes that were generated by the agency’s closures of the waters in the zone? Any doubt as to the results of a change in policy should err to benefit the marine resources… [emphasis added]”
The Recreational Fishing Alliance, an anglers’ rights group based in New Jersey, also weighed in on the issue, opposing the issuance of the exempted fishing permit and saying that
“RFA finds it next to impossible for NMFS to deny the conservation value of the…closed area or claim that a reintroduction of pelagic longlines into the closed area is necessary to evaluate its effectiveness. This closed area was instrumental in spurring the recovery of north Atlantic swordfish and creating a recreational swordfish fishery that now holds significant socioeconomic value to the coastal communities of Florida. Furthermore, the closed area has also allowed the near-shore, recreational sailfish fishery to become one of the most valuable non-consumptive fisheries in the world…”
It’s hard to disagree with any of the above statements, particularly when other gear is available to commercial swordfishermen which produces far less bycatch and discard mortality than do longlines. I completely agree with those who believe that there was no need to introduce longlines into the long-closed area east of the Florida coast, and who would have preferred that NMFS not issue the exempted fishing permit.
Even so, it’s important to note the Final Environmental Assessment’s assurance that
“The additional swordfish landings would be counted against the ICCAT-recommended U.S. swordfish quota, which has been consistently underharvested in recent years and catch would remain well within the available quotas…
“Catches of all tunas, except skipjack, are projected to decrease relative to otherwise authorized routine fishing operations in the open area under either alternative if fished the level of effort requested by the applicant…
“Bycatch of all billfish, except sailfish, are projected to decrease relative to otherwise authorized routine fishing operations in the open area under either [alternative] at the level of effort requested by the applicant…”
Thus, no overfishing of the swordfish resource would be taking place, while bycatch of tuna and most billfish would be reduced, although there would be a substantial increase in the number of sharks killed.
It’s also important to note that issuance of the exempted fishing permit only benefits the commercial fishing sector, and has arguably negative consequences for the recreational fishery, which will face greater commercial competition for the available swordfish.
Thus, it’s perhaps not surprising that recreational fishing organizations find it so easy to criticize NMFS’ decision to issue the exempted fishing permit, which will have no negative long-term impact on the swordfish resource, while praising other NMFS actions that allow the recreational community to overfish both red snapper and summer flounder, and could have negative impacts on the resource and the commercial sector.
Earlier this year, when NMFS issued a temporary rule re-opening the private-boat recreational red snapper fishery in the Gulf of Mexico, it admitted that
“The stock is still overfished…if employed for a short period of time, this approach will ultimately delay the rebuilding of the stock by as many as 6 years. This approach likely could not be continued through time without significantly delaying the rebuilding timeline. Similarly, the approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.”
Yet, even though NMFS admits that the reopening will lead to anglers “substantially” overfishing an already overfished stock, and delay the recovery of the stock for as much as six years, the angling organizations that were so concerned about the negative conservation impacts of the exempted fishing permit on a relatively healthy swordfish stock had no concerns at all.
In fact, they welcomed the overfishing despite its consequences, with the Center for Sportfishing Policy issuing a statement saying, in part,
“Today’s announcement is a fix—albeit a short-term fix—that will allow millions to enjoy one of America’s greatest pastimes and boost economies far beyond the Gulf of Mexico—including in the manufacturing and retail sectors in non-coastal states.
“The federal fisheries management system is failing recreational anglers on many levels, and the red snapper is the ‘poster fish’ of the quagmire. The temporary rule directly addresses this problem, giving millions of recreational anglers in the Gulf of Mexico an opportunity to enjoy America’s natural resources and giving the Gulf economy a much-needed shot in the arm…
“Anglers commend the Trump Administration and Members of Congress for hearing our calls for more access to federal waters—and for taking action…”
“a welcome boon to anglers who have been painted into a corner by a federal fisheries management system that does not understand us and would often just rather ignore us,”
although it’s difficult to argue that NMFS ignores anglers as much as anglers are trying to ignore how badly they’re overfishing the Gulf red snapper stock. Such overfishing makes it tough to understand how CCA, so concerned about non-overfished swordfish, can say that because of the reopening and despite the inevitable overfishing
“The recreational community should feel vindicated, and we should take heart that after years of being systematically sidelined by NOAA Fisheries, our efforts to encourage our elected officials in Congress to engage in this man-made management disaster are yielding results…As a result of our passion and our refusal to be cast aside, anglers will be allowed to venture into the Gulf of Mexico with their family and friends on weekends throughout the summer in pursuit of the most popular offshore fish in our waters…”
In the Mid-Atlantic, something similar occurred.
Due to poor recruitment, summer flounder abundance has steadily declined, until it reached the point that the stock might soon become overfished. As a result, the Atlantic States Marine Fisheries Commission adopted a management plan that required Connecticut, New York and New Jersey to reduce their bag limit from 5 fish to 3, increase their size limit from 18 to 19 inches and keep the same 12-day season that they had in 2016.
Connecticut and New York went along, but New Jersey refused, insisting on keeping its size limit at 18 inches and shortening its season to 104 days, arguing that, between the two changes, New Jersey’s regulations would have the same conservation impact as those that ASMFC would impose. ASMFC disagreed, found the state to be out of compliance with the summer flounder management plan, and referred the matter to the Secretary of Commerce who, if he agreed, would impose a moratorium on summer flounder fishing in New Jersey waters until the state adopted regulations acceptable to ASMFC.
The Secretary of Commerce failed to support the findings of ASMFC and its scientists. Instead, he found that New Jersey was right, and that its regulations did have conservation equivalency with those adopted by ASMFC. It was the first time that the Commerce Department failed to support ASMFC’s findings, and throws the future of ASMFC’s cooperative interstate management program into doubt. It also won’t do the summer flounder any good; the best available science indicates that, because Commerce overturned ASMFC’s finding, New Jersey will catch about 94,000 more fish than is scientifically prudent.
Yet, once again, angling organizations seem to believe that such overfishing is a good thing.
The same Recreational Fishing Alliance that opposed the notion of longliners receiving the exempted fishing permit—even though swordfish would not be overharvested as a result—celebrated the Secretary of Commerce’s decision, with Jim Donofrio, RFA’s Executive Director, reportedly saying
“[Commerce Secretary] Ross was brilliant in his decision. The Trump administration has challenged a broken fishery management system in this country, and I applaud them for doing it.”
Which makes it seem that the recreational fishing community has no coherent policy when it comes to matters of conservation, stock rebuilding and overfishing.
Do they really believe, as The Billfish Foundation stated, that “Any doubt as to the results of a change in policy should err to benefit the marine resources,”?
Or is the Coastal Conservation Association’ support for anglers being “allowed to venture into the Gulf of Mexico with their family and friends on weekends throughout the summer in pursuit of” red snapper, even if that means that the red snapper resource will be badly overfished, and its recovery delayed for years, more representative of the recreational organization’s position?
Because those two stances seem to be diametrically opposed, and without a coherent underlying management philosophy.
Unless, of course, the underlying philosophy is that commercial harvest should be subject to precautionary management, with all doubts resolved in favor of the resource, while recreational harvest should be free of biologically-based constraints, with overfishing accepted as a matter of course if it lets more people kill fish and lets angling-related businesses make more money.
Kind folks might call that sort of philosophy schizophrenic.
Critical folks might call it self-serving.
And some folks might call it hypocrisy.
None of those folks would be wrong.
Thursday, August 10, 2017
The current effort to weaken the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act was launched by a coalition of fishing tackle industry, boatbuilding and anglers’ rights groups in early 2014. That assault was supported by a report entitled “A Vision for Managing America’s Saltwater Recreational Fisheries,” which was used to generate buzz in the press and outlined a number of alleged flaws in the federal fisheries management system.
The “Vision” report was produced by what its sponsors called a “blue-ribbon panel” that, although a completely private enterprise, was given the grandiose and official-sounding name of “The Commission on Saltwater Recreational Fisheries Management,” which was co-chaired by Johnny Morris, Chief Executive Officer of the Bass Pro Shops sporting goods chain, and by Scott Deal, the President and co-founder of Maverick Boats.
The report was issued under the aegis of the Theodore Roosevelt Conservation Partnership, an organization who has usually been on the right side of conservation issues, but found itself out of its depth when it entered the salt water fisheries arena, and somehow ended up trying to upend what is arguably the most successful and effective marine fisheries management program in the world.
The key message of the “Vision” report is that the current federal fishery management system is not optimized to serve recreational anglers, and that the federal management system should be amended to more closely resemble the systems that currently exist in several states. The report claims that
“The National Marine Fisheries Service (NMFS)…is the federal agency responsible for fisheries management in federal waters. Given its mandated commercial focus, the fact that NMFS has not embraced fisheries management practices that also meet the unique goals, needs and motivations of recreational anglers should come as no surprise. While the NMFS has made great strides in recent years in improving communications and interaction with the recreational fishing community, much work remains to be done to effectively integrate recreational fishing into its policies and procedures.
“Many state natural resource agencies, especially those in the South, recognize the benefits of a vibrant recreational fishing community and have managed to promote it while conserving their saltwater resources…
“Many coastal states have adopted management models that are well tuned for their particular saltwater fisheries. These models conserve fishery resources, provide multi-year consistency in regulations and allow for ample public access. However, these approaches have not yet been embraced by the NMFS, which is a significant contributing factor to the current dilemma in saltwater recreational fisheries management.”
Among the recommendations made in the report was one that Magnuson-Stevens’ current requirement that
“the timeline for ending overfishing and rebuilding fisheries ‘be as short as possible’ and ‘not exceed 10s years’”
be weakened, to give
“the regional councils and fisheries managers greater latitude to rebuild fish stocks in a timely and reasonable manner.”
They argue that states don’t have rebuilding deadlines, and manage their fish better than the federal managers do.
They say that. But then, some people say that the world is flat, or that they have been “taken” by UFOs; it’s pretty clear that just saying something does not make it so.
Over the last few years, I’ve provided a number of examples where state fishery managers, including “those in the South” that are praosed in the “Vision” report, have failed to properly manage local fisheries.
Both Mississippi and Louisiana have mismanaged speckled trout, with the latter state seeming to believe that growth overfishing is perfectly fine. Last month, I wrote about an Internet gag that ended up revealing a truth about a dearth of red drum on the west coast of Florida.
Recent state efforts to manage striped bass and winter flounder hardly provide grounds for confidence, while New Jersey state managers’ successful effort to overturn the Atlantic States Marine Fisheries Commission’s summer flounder management efforts represent a new milestone in the annals of bad fisheries actions.
However, the biggest failure of state managers at ASMFC may be its failed effort to rebuild a depleted tautog population. ASMFC knew what to do as early as 1996, but never had the will to impose needed measures. According to a recent document,
“Since the Tautog [Fishery Management Plan] was implemented, in 1996, the resource has experienced changes in stock status, as well as management measures used to control harvest. Based on the 2015 Benchmark Stock Assessment and Peer Review Report…tautog is overfished and overfishing is occurring on a coastwide scale.”
The state managers that make up ASMFC had plenty of opportunity to correct both problems. As the same document notes,
“Fishery Management Plan (FMP) (March 1996)
The FMP established a 14” minimum size limit and a target fishing mortality of F=M=0.15. The target F was a significant decrease from the 1995 stock assessment terminal year fishing mortality rate in excess of F=0.70, so a phased-in approach of implementing these regulations was established…
“Addendum I (May 1997)
In response to northern states’ difficulty in achieving the interim F by their deadline, Addendum I delayed implementation of the interim F and target F for all states until April 1998 or April 2000 depending on the state…
“Addendum II (November 1999)
…Addendum II further extended the deadline to achieve the F=0.15 target until April 2002…”
I could go on, but it would serve no purpose other than to further illustrate the 21-year pattern of delay, and ASMFC’s endorsement of state regulations insufficient to rebuild the stock.
And it’s not over yet. Just this month, ASMFC failed to adopt measures that, according to the best available science, were needed to rebuild the tautog population in Long Island Sound. Instead of the 43% harvest reduction that, according to biologists, are needed to rebuild the population, ASMFC delayed taking action because,
“…The states within the Long Island Sound (LIS) region needed additional time to explore other management strategies that would moderate the severe social and economic impacts and provide flexibility in achieving such a large reduction in fishing mortality. The two states will also be exploring a more modest harvest reduction, 20-30%...”
It seems that nothing was learned by the failures of the past 21 years, and states still believe that they can overfish their way to the stock’s recovery. And without the strict rebuilding requirements of Magnuson-Stevens, nothing will prevent them from reliving past management errors, again and again…
Now, there’s news out of the State of Florida, and it involves the same Scott Deal and the same Theodore Roosevelt Conservation Partnership that were behind the “Vision” report. Only now, they’re not saying positive things about inshore angling down in the Sunshine State.
According to the Miami New Times, Ed Tamson, who represents the Theodore Roosevelt Conservation Partnership in Florida, said
“It’s the tipping point. Fishing here has gone to hell in a hand basket.”
To be fair, the problem appears to be a sharp decline in water quality, caused by pollution-filled runoff from agricultural operations; attempts to abate such runoff are met with fierce opposition from the politically influential sugar industry. And as the New Times reports,
“With little reform to water management regulations, water quality has continued to diminish, accompanied by a decline in many fish species. Recreational anglers have been forced to contract their fishing grounds and pole closer to one another. With more concentrated fishing, many worry the added pressure will only further decimate the fish population.”
Scott Deal’s boat manufacturing companies were hit hard as a result, reportedly losing about 80% of their Florida business. Fishing guides, who don’t have Deal’s option of selling their services outside the state, report losing up to 70% of their customer revenues.
Florida’s fishery managers can’t be blamed for what has proven to be an intractable political fight with the sugar industry. Even so, how can the various organizations who want to weaken Magnuson-Stevens argue that Florida fishery managers are doing a good job “conserve[ing] fishery resources, provid[ing] multi-year consistency in regulations and allow[ing] for ample public access” when, by the words of one of their own representatives, “Fishing…has gone to hell in a hand basket”?
And that leads to the biggest question of all. With the threats that angling is facing from polluted runoff in Florida, a New Jersey-sized hypoxic dead zone—the largest ever seen—in the Gulf of Mexico, and another, larger-than-average dead zone predicted in Chesapeake Bay, why do groups representing the fishing tackle industry, boating industry and some anglers try to weaken Magnuson-Stevens, rather than going after the real problems that hurt anglers on a regular basis?
Magnuson-Stevens has successfully ended overfishing for most species, and has successfully rebuilt about 40 once-overfished stocks in the past twenty years—far more than have been rebuilt by either ASMFC or the states. Yes, the law constrains recreational harvest, but only to maximize fish abundance, and given that the “Vision” report states that
“What recreational anglers want and need is wide-ranging, dependable access to healthy and abundant fish stocks,”
the report’s authors should logically be Magnuson-Stevens’ greatest supporters.
On the other hand, pollution provides no benefit to anyone but the polluters, and as the New Times article shows, do the fishing and boating industries real harm. So why aren’t the industry folks, and their fellow travelers in the anglers’ rights community, focusing their rancor—not to mention their lobbyists, their public relations efforts and their political clout—on polluters who degrade our waters, instead of on a good law?
When poor water quality and the resultant decline in both fish stocks are threatening fish stocks, and the angling experience, on multiple coasts, it just doesn’t make sense to attack a law that made fish such as summer flounder, black sea bass and red snapper more abundant than they were in decades.
Because pollution can destroy angling’s future, but only good management, as provided by Magnuson-Stevens, can save it.
Sunday, August 6, 2017
It’s the middle of summer. Forty years ago, I would have been fishing for cod southeast of Rhode Island.
That might catch some people by surprise, because they think of cod as a cold-water species that only appears off New York and southern New England during the dead of winter. But when the stocks were healthy, that wasn’t the case.
For many years, until the early 1980s, there was a very productive and very active midsummer fishery for cod and other northeastern groundfish on Cox’s Ledge, an area of rough bottom located about 25 miles southeast of Pt. Judith, Rhode Island.
At the time, I did my codfishing out of Galilee, Rhode Island, which supported four party boats that fished for cod on a regular basis: theGail Frances, the Julie C, the Nautican and the Super Squirrel. An extensive charter boat fleet, along with private vessels, also took part in the fishery. Out at Cox’s Ledge, the Rhode Island boats would be joined by a number of similar vessels from Montauk andOrient, New York, along with others from Groton and Niantic in Connecticut.
The boats would be crowded. Even though it was a long ride out to the codfishing grounds—an hour and a half on the fastest boats out of Galilee, twice that long if you sailed out of the other ports—on a typical summer weekday, anglers would line the rails on both sides of the boat. Some were serious codfishermen; others were tourists just out for a day on the water.
Regardless of their relative skill, most would take some fish home. They might catch a half-dozen so-called “market cod,” each less than 10 pounds, or they might latch onto the “pool winner,” a big fish that often weighed more than 50 pounds (the smallest I ever remember weighed 35), and earned them a handful of cash contributed by the other anglers on board.
It wasn’t always—or even typically—the most skilled anglers who won the pool. I never managed to take the prize, although I once had the second-place fish on seven consecutive trips, a feat that earned me nothing but lots of fillets. Often, the winner would be a first-time codfishermen, who would be convinced they were snagged on the bottom, even though the tip of their rod was slowly pulsing up and down…
And it wasn’t just cod that were caught.
Sometimes the pool fish would be a big white hake. Sometimes, on the way to or from the grounds, the captain would softly call for a mate to come up to the bow of the boat, because there was a swordfish finning out that might be harpooned. Anglers who allowed their baits to rest on the sea floor often caught a score of ocean pout, an unattractive bottom-dweller that was generally considered a nuisance fish, but yielded fillets of fine-grained, snow-white meat to those willing to ignore external appearances.
Cox’s Ledge cod trips created some of my fondest angling memories, but that’s an opportunity lost to today’s anglers. The New England Fishery Management Council (New England Council) badly mismanaged the species, never imposing rules strict enough to end overfishing, much less rebuild the overfished stock. The big white hake, though not overfished, are largely gone, too. A few are still caught, mostly on deep-water wrecks, but the 50-pound “jelly bellies,” as the Super Squirrel’s captain, Al Jarman, used to call them, now mainly swim in old anglers’ memories. Even the despised ocean pout are overfished, to the point where none may be legally landed.
There are still a few cod out on Cox’s Ledge during the summer, but not enough to support a party boat fishery, much less a fishery involving close to a dozen boats from three different states. Today, the cod fishery off New York and southern New England is a cold-weather affair, dominated by hard-core anglers who catch mostly small cod. These days, the pool fish on the boats rarely exceeds 20 pounds, and there are many days when they don’t even weigh half of that.
The loss of the summer cod fishery is difficult to quantify. The revenues lost to the party boats, who can no longer participate in the fishery, must be substantial. But the greater loss was to everyday anglers, who have been deprived of an inexpensive opportunity to catch good-sized, good-tasting fish in the sort of convivial setting that can create lasting memories, and make fishermen want to return.
And, sadly, the summer cod fishery isn’t the only thing that we’ve lost.
In late spring, pollock used to swarm within sight of Block Island. The fishery began a little before Memorial Day, and lasted through the first two weeks of June. The average pollock probably weighed between 15 and 25 pounds, although some were notably larger.
The fish were incredibly numerous. It was usually easy for private boat anglers to get all of the fish that they needed with single-hookeddiamond jigs. The charter boats, which usually wanted to load up with fish for their passengers, would troll so-called “umbrella rigs”that featured four, and sometimes, six arms and as many separate lures, and often hooked more than one pollock at a time, although the fish often managed to fight against one another and, in the process, rip the rigs apart and so gain their freedom.
It was a wonderful fishery, which helped out the for-hire fleet because it occurred in a sort of “shoulder season,” when the summer fisheries were all starting up, but had not yet reached their peak.
But the New England Council mismanaged pollock, too; the Block Island run collapsed by the mid-1980s.
Yet of all the New England Council’s failures, the worst and perhaps the most tragic was winter flounder, particularly what’s known as the Southern New England/Mid-Atlantic stock (SNEMA Stock). While the cod and pollock fisheries required anglers to own a seaworthy boat, or pay a party or charter boat to take them out to the grounds, winter flounder belonged to everyone.
As a boy, I caught them from shore and from local docks, as well as from my father’s boat. We started fishing for them in March, and stopped in December; although summer fishing was slow, there were always some flounder to be had. My wife’s introduction to angling came when her grandfather took her flounder fishing from various party and rental boats. They began fishing as early as February; she remembers catching flounder so early in the season that snowflakes still fell.
Flounder were the ultimate family fish, accessible to and catchable by children too young for kindergarten and elderly anglers who could no longer stand up to the rigors of pursuing other species.
Unlike cod and pollock, flounder spend a part of their lives in shallow inshore waters, where they spawn during late winter and spring. Then most move offshore. They are subject not only to the New England Council while summering in federal waters, but to state managers before, during and immediately after their spawning time.
Thus, both the New England Council and state managers share the blame for the SNEMA Stock’s collapse. The New England Council was no more interested in conserving flounder than they were in conserving other species. It always supported “flexible” management measures that allowed the greatest short-term economic return, and refused to impose an annual catch limit until Congress amended the Magnuson-Stevens Fishery Conservation and Management Act a decade ago, and required them to do so.
State managers were unwilling to take any action more restrictive than what federal managers imposed. In 1999, when there was still time to recover the stock, the Atlantic States Marine Fisheries Commission’s Winter Flounder Management Board refused to require states to impose needed harvest reductions because the New England Council had not also done so.
Thus, the SNEMA Stock collapsed, and again angling opportunities disappeared. In 1986, New York anglers made more than one million trips in pursuit of winter flounder; last year, thirty years later, they only made 74,000 winter flounder trips. The tackle shops, boat liveries and for-hire fleet lost the economic benefits that would have accrued from anglers making nearly a million additional trips every year. Anglers lost a tradition that had been binding fishing families together for generations.
Far too often, fishing-related businesses fight needed regulations, arguing that the rules might harm their incomes.
But as these examples show, the real long-term harm to the fishing industry comes from too few regulations, not from too many.
While placing additional regulations on the cod, pollock and winter flounder fisheries might have caused a little short-term distress, in the long term, the fisheries—and the businesses they supported—would still be there.
Because fishery managers failed to adopt needed regulations, those fisheries are gone, and anglers’ chances to be a part of them are gone as well.
This post first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which may be found at http://conservefish.org/blog/
Thursday, August 3, 2017
After Commerce Secretary Wilbur Ross decided to overrule the Atlantic States Marine Fisheries Commission’s finding that New Jersey’s 2017 recreational fluke regulations did not comply with the provisions of ASMFC’s management plan, the effectiveness of ASMFC’s cooperative interstate fishery management program was thrown into limbo.
As noted in a press release issued by ASMFC on July 14, ASMFC Chairman Douglas Grout expressed concerns that
“The Commission is deeply concerned about the near-term impact of our ability to end overfishing on the summer flounder stock as well as the longer-term ability for the Commission to effectively conserve numerous other Atlantic coastal shared resources. The Commission’s finding of noncompliance was not an easy one. It included hours of Board deliberation and rigorous Technical Committee review, and represented, with the exception of New Jersey, a unanimous position of the Commission’s state members. Our decision was based on the Technical Committee’s findings that New Jersey’s measures were not conservationally-equivalent to those measures in [ASMFC’s management plan] and are projected to result in an additional 93,800 fish being harvested…”
ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee provided fishery managers with a detailed accounting of where New Jersey’s analysis fell short of the scientific standards needed to demonstrate conservation equivalency. That accounting was forwarded to the Secretary of Commerce, along with other documentation relating to the issue.
Based on the Technical Committee analysis and other data, it was somewhat surprising when Chris Oliver, the Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration, sent a letter to ASMFC stating that it had overruled its noncompliance finding and found in favor of New Jersey.
In finding for New Jersey, Mr. Oliver stated that
“While there is some uncertainty about how effective the New Jersey measures will be, considering the information provided by the State, the Secretary had found that the measures are likely to be equivalent in total conservation as those required [by ASMFC]. [emphasis added]”
Bob Martin, Commissioner of New Jersey’s Department of Environmental Protection, hailed the decision, saying
“We are very pleased that NOAA worked with us to understand our position that sound science and good long-term planning must drive decisions about the management of summer flounder, one of the state’s most important recreational and commercial fish species.”
However, as time passed, news has emerged suggesting that neither “sound science” nor “good long-term planning” had much to do with the outcome.
A recent article in the Boston Globe quoted John Bullard, the regional administrator of NOAA Fisheries’ Greater Atlantic Region Fisheries Office (formerly known as the Northeast Regional Office), who said that he was not even asked for any formal input on the decision, even though his office was responsible for federal summer flounder management.
Mr. Bullard noted that
“This is the first time that no one asked me for a formal recommendation. The secretary’s decision goes against long-standing protocol, and there’s a cost to that.
“There’s a reason to have regional administrators, because their experience and knowledge is valuable in making decisions like this one. This is an unfortunate precedent.”
Mr. Bullard’s comments are hard to dispute. The New Jersey decision represents the first time in 20 occasions spread out over nearly 25 years that a Secretary of Commerce has overruled an ASMFC finding of noncompliance.
And it’s not clear what grounds were used to do so.
The regional administrator was not a part of the decision, and there’s no suggestion that the Northeast Regional Science Center had any significant input, despite their day-to-day familiarity with the state of the summer flounder stock.
Mr. Bullard noted that the
“chain of command was broken with this decision,”
and pointed out that
“This is a system that keeps all states accountable to each other. We’re now going to have to figure out how to repair that system.”
It appears that such repairs are going to be badly needed. The Boston Globe quoted Bob Ballou, assistant to the director of Rhode Island’s Department for Environmental Management, asking a critical question,
“Going forward, does this mean states should feel free to act in an autonomous way, regardless of the laws they’re bound by, because there’s a decent chance that the secretary could overturn their decision?”
He noted that
“What the secretary did is very disturbing.”
The Globe quotes Cheri Patterson, supervisor of marine fisheries at the New Hampshire Fish and Game Department, asking another critical question, which could have disturbing implications.
“Protocols have been dismissed here. There needs to be some clarity whether this was a political decision, and how the secretary made this decision.”
Indeed, there needs to be some clarity. The federal government has refused to shed any light on the matter, only issuing the ambiguous—and anonymous—statement that
“The long-term sustainability of American fishing stocks, as well as the jobs that rely on them, are of the utmost concern to Secretary Ross.”
On the other hand, some things are clear.
The Asbury Park Press reported, as early as March 2, that the administration of New Jersey Governor Chris Christie
“wasted no time to petition [Commerce Secretary] Ross this week and ask him to put a hold on the new summer flounder regulations approved by the Atlantic States Marine Fisheries Commission on Feb. 2.”
That means that New Jersey was speaking to the Commerce Secretary about fluke regulations three full months before ASMFC found the state out of compliance with its management plan.
Those combinations, combined with the Commerce Secretary’s failure to consult Regional Administrator Bullard (and apparently no one else in the regional office), suggests that, as Ms. Patterson feared, the decision to overrule ASMFC could have been primarily political, and not based on scientific analysis.
That presents problems, because the Atlantic Coastal Fisheries Cooperative Management Act only permits the Secretary of Commerce to overrule ASMFC’s noncompliance ruling if the Secretary finds that ASMFC’s rules are not
“necessary for the conservation of the fishery in question.”
And that’s a decision that can only be based on data, not on politics. Making it a political call would be patently illegal, just as illegal as the Secretary’s earlier reopeningof the recreational red snapper season in the Gulf of Mexico.
The fact that the Secretary engaged in one clearly illegal action doesn’t mean that he necessarily engaged in another.
But it certainly doesn’t rule it out, either.