Thursday, May 25, 2017
NEW JERSEY FLUKE FANTASY FLOPS AT ASMFC. NOW WHAT?
As we all know by now, last February the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board adopted fluke regulations that required anglers in Connecticut, New York and most of New Jersey to observe a 19-inch minimum size, 3-fish bag limit and 128-day season in 2017.
Although New York and Connecticut weren’t pleased by the harvest reduction, both states bowed to biological realities of the situation and adopted the new rules.
That didn’t happen in New Jersey, where spokesmen for the angling community, abetted by legislators and their state regulators, threw a months-long hissy fit that appeared to reach its culmination at the Management Board’s May meeting, when the state’s representatives proposed alternative management measures which would allow the state’s anglers to fish under an 18-inch size limit if they chopped 24 days off of the end of their season and the state took a few feel-good actions that did not rise to the level of regulatory mandates.
Debate on the New Jersey proposal dragged on for three hours after the meeting’s scheduled end. Finally, perhaps out of a hope to get something for dinner before all of the restaurants closed (or, perhaps more likely, because after listening to something like six hours of near-uninterrupted whining, the other states’ representatives were in immediate need of a couple of drinks) the Management Board voted to send the proposal to the Summer Flounder, Scup and Black Sea Bass Technical Committee for a thorough analysis.
At that point, although the Technical Committee had not yet ruled on the biological merits of the new proposal, New Jersey declared victory. An article in the Asbury Park Press proclaimed that
“A compromise is close is close on summer flounder regulations,”
the New Jersey Marine Fisheries Council unanimously recommended that the proposal become the state’s 2017 regulations and such regulations were officially adopted by the New Jersey Department of Environmental Protection a few days later.
Now, it seems that the Garden State fishing community, along with its regulators, acted a bit too fast.
A special Management Board meeting was held by conference call last Monday, to receive the Technical Committee’s recommendation on New Jersey’s alternate management measures and to decide whether to approve New Jersey’s adoption of such measures for the 2017 season. To gain Management Board approval, New Jersey would have to convince the Technical Committee that its proposal would reduce fishing mortality by at least 30%, when compared to 2016.
The New Jersey proposal, as explained in a memo provided to the Management Board, could be broken down into three distinct segments. The first were the restrictions on anglers’ actions—the 18-inch size limit, 3-fish bag limit and 104-day season; those would supposedly reduce landings by 24%.
The state then argued that its preferred management measures would lead to far less discard mortality than would the measures adopted by ASMFC, and that such reduced discard mortality would count for another 6% reduction in overall fishing mortality.
Finally, the state proposed to engage in an angler education process that would provide 50,000 hooks, of a type believed to reduce release mortality, to for-hire vessels and tackle shops throughout the state. Garden State anglers made more than 1,400,000 trips in pursuit of summer flounder last year, so those 50,000 hooks probably wouldn’t go very far, and there would be no regulation mandating their use. However, New Jersey still maintained that such hooks, coupled with an angler education program that involved both videos and other materials on how to safely release fish, would be good for another 2% reduction in fishing mortality.
Thus, New Jersey argued, its alternative management measures would cut harvest by 32%.
The Technical Committee just didn’t buy it, and reported that the New Jersey proposal did not have “conservation equivalency” with the measures adopted by the Management Board in February.
That pretty well doomed any chances of the proposal being approved by the Management Board. Even so, after the Technical Committee made its presentation, New Jersey took the floor in support of its proposal, made a motion that it be accepted by the Management Board, and waited for someone to second to that motion.
And then, throughout a long, embarrassing silence, they waited some more.
Finally, Michael Luisi, the Maryland fishery manager who chairs the Management Board, broke the silence to make another call for someone to second the motion.
The silence prevailed. Not a single Management Board member, from any of the other states, believed that the New Jersey proposal was worthy even of discussion, much less of adoption.
And so, for lack of a second, the New Jersey proposal failed. As far as ASMFC is concerned, New Jersey is now bound by the Management Board’s February vote.
New Jersey, however, appears to feel otherwise, as reports coming out of the state suggest that the regulations adopted earlier this month will be final.
If that is the case, ASMFC is ready and willing to invoke provisions of the Atlantic Coastal Fisheries Cooperative Management Act, which could shut down all commercial and recreational fluke fishing in the state until it complies with the Management Board’s decisions. The relevant portion of that law provides
“The Commission shall determine that a State is not in compliance with the provisions of a coastal fishery management plan if it finds that the State has not implemented and enforced such plan within the timetable established under the plan…
“Upon making any [such] determination…the Commission shall within 10 working days notify the Secretaries of such determination…
“Within 30 days after receiving a notification from the Commission…and after review of the Commission’s determination of noncompliance, the Secretary [of Commerce] shall make a finding on
“1. Whether the state in question has failed to carry out its responsibility [to implement the required management measures]; and
2. if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question…
“Upon making a finding…that a state has failed to carry out its responsibilities under…this title and that the measures it failed to implement are necessary for conservation, the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of the noncomplying State…”
So the big question is: What happens now?
The answer is unsatisfying, and a little unclear.
After deciding not to approve New Jersey’s proposed management measures last Monday, the Management Board, in a 9 to 1 vote (with both the National Marine Fisheries Service and the U.S. Fish and Wildlife Service abstaining), recommended that ASMFC’s Interstate Fisheries Management Policy Board find New Jersey out of compliance with the required management measures. A conference call scheduled for June 1 will provide the Policy Board an opportunity to decide that question. (The Policy Board actually found New Jersey out of compliance at its regular May meeting, but because New Jersey adopted the 3-fish bag and 104-day season since then, NMFS advised that a new vote would be needed.)
The results of that vote will be quickly communicated to the Commerce Department, which will have up to 30 days to make its decision.
Thus, under a best-case scenario, New Jersey will be able to remain non-compliant at least through early July, stealing fish from the other states and shifting the burden of conserving the stock onto the shoulders of others.
Once the Secretary of Commerce makes his decision, things could go in one of two ways: While New Jersey is clearly out of compliance, the Secretary could buy the state’s argument that its regulations achieve the desired landings reductions, and that the measures adopted by ASMFC are not necessary to conserve the stock. Or, the Secretary could confirm ASMFC’s findings and impose a moratorium on fluke fishing in New Jersey waters.
If the Secretary elects the former course, New Jersey will be able to thumb its nose at the Management Board, maintain its smaller size limit at the expense of the other states, catch more fish than the science would otherwise permit and in a worst-case, if hopefully unlikely, scenario, perhaps push the stock into an overfished state.
By failing to find New Jersey out of compliance, the Secretary would encourage other states to challenge other ASMFC management measures with their own questionable statistics, and thus do real harm to the supposedly cooperative interstate management system.
If the Secretary does impose a moratorium, the impact of such action would depend on the effective date.
A moratorium that became effective immediately after the close of the Secretary’s 30-day fact-finding period would close down New Jersey’s fishery during the critically important months of July and August, and thus force the state to come into compliance as soon as it possibly could.
On the other hand, if the Secretary gave the state 30 days to come into compliance, New Jersey would be able to enjoy noncompliant regulations throughout the month of July and the first days of August, while doing additional harm to the stock and demonstrating that there is real benefit in ignoring ASMFC mandates for as long as legally possible.
Right now, it’s impossible to say how this will play out.
Anglers interested in maintaining a sustainable stock can only hope that the Secretary acts quickly to find New Jersey out of compliance, and imposes a moratorium that becomes effective as soon a practicable, in order to protect both the health of the stock and the health of the management system on which many stocks depend.