REP. ZELDIN CONTINUES ATTACK ON STRIPED BASS

Rep. Lee Zeldin, who represents New York’s 1^st Congressional District—the East End of Long Island—has a poor record when it comes to conservation.

Although he does deserve credit for trying to preserve Plum Island as public land and maintaining interim funding for the National Estuary Program that benefits Long Island Sound, his overall resume is pretty bad.  

In 2016, he earned a dismal rating of 8—yes, out of 100—from the League of Conservation Voters; only one New York representative scored lower.  He is an enthusiastic supporter of legislation that would weaken critical conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act.  

While still a state senator, he spearheaded the effort to repeal New York’s salt water fishing license, and so deprived the state’s marine fisheries managers of critically needed resources.

But Rep. Zeldin has a particularly bad record when it comes to striped bass.

It started in July 2015, when he introduced H.R. 3070, the so-called “EEZ Transit Zone and Clarification and Access Act.”  I wrote about H.R. 3070 back in 2015, into too much detail now; it’s enough to say that the bill was intended to allow striped bass fishing in federal waters between the mainland of New York, Connecticut and Rhode Island and Block Island. 

To do that, the initial version of the bill would have redefined the boundary between state and federal waters, solely for fishery management purposes; unfortunately, the new boundary would have cut across the southeast corner of Block Island, so that surfcasters standing at the edge of the beach would have been illegally fishing for stripers in the federal Exclusive Economic Zone.

A revised draft of the bill eliminated the proposed new boundary, and would merely have allowed striper fishing in the so-called “transit zone,” federal waters between Block Island and the mainland where transiting boats may currently possess, but not fish for, striped bass.  

Despite the fact that the bill was widely opposed by striped bass anglers, with support coming largely from the Montauk party and charter boat fleet and some commercial fishermen, it passed the House in June 2016.  However, because there was no companion bill in the Senate, it did not become law.

But bad bills are harder to kill than B-movie monsters.  

Earlier this year, Rep. Zeldin introduced H.R. 1195, the Local Fishing Access Act, which is effectively H.R. 3070 dressed up in a new set of clothes for a new session of Congress.  The reintroduced bill has attracted no cosponsors at all, and is currently languishing in the House Natural Resources Subcommittee on Water, Power and Oceans, where it will hopefully meet an unlamented death.  If it does, like its predecessor H.R. 3070, somehow make it out of Committee and is passed by the House, passage by the Senate, where no companion bill has been introduced, remains problematic.

With the front door seemingly slammed in his face, Rep. Zeldin is now trying to sneak through the back door, and open the EEZ between Block Island and the mainland not by stand-alone legislation, which receives a full hearing as well as full scrutiny by citizens and the press, but by attaching two stealth amendments to an omnibus spending bill, which the public isn’t likely to notice, and can pass well below the press’ radar.

The first such amendment provides that

“None of the funds made available by this Act may be used by the National Marine Fisheries Service to Enforce Executive Order 13449 or section 697.7(b) of title 50, Code of Federal Regulations, in the Block Island Transit Zone (as that term is defined in section 697.7(b)(3) of such title.”

The second amendment is similar, but substitutes “Coast Guard” for “National Marine Fisheries Service,” and thus prevents the two federal fisheries enforcement agencies from enforcing the rules against striped bass fishing in the EEZ off Block Island.

Passage would be a bad thing.

There is only one reason why the charter and party boat fleet wants to be able to fish in the Transit Zone—because they can catch more and/or larger fish there than they can find in state waters, at least at certain times during the year.

The last thing that the striped bass stock needs right now is a higher harvest.

The Atlantic States Striped Bass Technical Committee released a report last February, which estimated fishing mortality in 2016 as somewhere between 0.190 and 0.194.  That’s already above the fishing mortality target of 0.180, and halfway to the fishing mortality threshold of 0.219.  

Additional landings could easily raise mortality above the threshold, at which point overfishing will occur.

Add to that the fact that the striped bass stock isn’t all that healthy right now.  An update to the stock assessment, released last October, estimates that female spawning stock biomass at 58,853 metric tons, barely 1,000 metric tons above the biomass threshold of 57,626 mt (if female SSB fell below that, the stock would be deemed “overfished”) and more than 13,000 metric tons below the 72,032 mt biomass target that denotes a completely healthy stock.

Any overfishing would likely cause the female spawning stock to decline, and draw even closer to the critical threshold.

And opening the EEZ off Block Island to striped bass fishing may be the least of the threats that Rep. Zeldin’s actions could cause.  There have long been anglers in other states, particularly Massachusetts and Virginia, who would like to be able to harvest striped bass in federal waters.  Should Rep. Zeldin be successful in opening the Block Island Transit Zone to striped bass fishing, it’s not unlikely that representatives from other states would try to open the EEZ off their shores, as well.  

The cumulative increase in landings would certainly cause overfishing to occur.

Thus, both the striped bass and striped bass fishermen would benefit if Rep. Zeldin’s efforts are defeated.  

Deliberations on whether to add his amendments to the appropriations bill are expected to begin right after Labor Day.  Thus, anglers interested in the health of the striped bass stock need to act quickly.

Contacting Rep. Zeldin’s office is one way to go, and should certainly be done.  However, unless a significant number of his constituents and/or campaign contributors make it clear that they are unhappy with his proposed action—enough constituents and contributors to overcome the Montauk for-hire fleet—it is unlikely that he will change course.

Thus, efforts should also be directed toward legislators directly involved in the appropriations process.  They include Jose Serrano (D-NY), Ranking Member of the House Commerce—Justice—Science Appropriations Subcommittee, Rep. Rodney Frelinghuysen (R-NJ), Chairman of the House Appropriations Committee and Nita Lowey (D-NY), Ranking Member of the Appropriations Committee.

Just click on the name of the legislators in the previous sentence, and you’ll pull up their contact information.  

If you live outside of their districts, they may not respond to your e-mail, but it’s important that they receive it all the same.

Click soon.  

Labor Day is almost upon us.  If we let Rep. Zeldin sneak his amendments through, we put the striped bass at risk once again.

CHUB MACKEREL; FORAGE, YET A FISHERY

Typically, if you manage to land a thresher shark that weighs more than  a quarter-ton, you’re going to win a weekend tournament.  However, that’s not how it went earlier this month at Star Island Marina in Montauk, where an angler put such a big fish on the scales, only to lose to an even larger, 598-pound beast.

A friend of mine runs a charter boat out of the same port, and he recently put one of his customers onto a thresher of nearly 300 pounds, close enough to shore that, according to him, you could still make out tourists walking around the top of the Montauk Lighthouse.

That’s pretty close to the beach…

And those fish weren’t exceptions.  There have been a lot of big threshers caught, and more seen, off Montauk this month, and the reason is perfectly clear.

Food.

Montauk is buried in baitfish.  There are big schools of menhaden, along with swarms of chub mackerel and even some Atlantic mackerel, which should have headed north a few months ago, pulling the sea’s apex predators surprisingly close to shore.

Montauk isn’t alone.  Although fishing is better there than elsewhere on Long Island, schools of chub mackerel are popping up all along the South Shore.  I caught them last Monday on the artificial reef about three miles south of Fire Island Lighthouse, when I stopped to make a quick drop for porgies on my way home from fishing an offshore wreck.

We also found chub mackerel when we were fishing in 20 fathoms of water, about 20 miles ESE of Fire Island Inlet, on Thursday, where they appear to have attracted the largest concentration of hammerhead sharks that I’ve seen off Long Island in decades.

So it’s pretty clear that in the ocean, chub mackerel matter, as an important link in the food chain.

Yet, historically, chub mackerel had no protection at all.  They were being targeted in what appears to be an expanding fishery that, in New England and the Mid-Atlantic, landed no chub mackerel at all in five of the last ten years for which information is available (2006-2015), but ramped up sharply in recent years, landing over 4 million pounds in 2013, 1.2 million pounds in 2014 and 1.4 million pounds in 2015.

Other important forage fish—the fish that other fish typically eat—were also without protection.  Thus, last year, the Mid-Atlantic Fishery Management Council opted to create an omnibus amendment to its fishery management plans which would protect forage species important to fish stocks managed by the Council.

It was up to the National Marine Fisheries Service to adopt or reject the amendment that the Council had drafted.  There was concern in some circles that the incoming administration, which had long expressed hostility to regulations restricting business activity, might refuse to issue the regulations needed to implement the omnibus amendment.

Fortunately, those concerns proved baseless.  NMFS has just released a regulatory package that will protect not only chub mackerel, but sand launce (“sand eels”), anchovies, halfbeaks, sardines, some herrings, saury, silversides and a number of other important prey species.

The new regulations will require anyone who commercially lands, or otherwise sells, chub mackerel and other forage species to obtain federal permits and report landings and sales on the appropriate vessel trip reports or dealer reports.  Vessels will not be allowed to possess more than 1,700 pounds, in the aggregate, of forage fish species other than chub mackerel on any given trip, which should effectively prevent the creation of directed fisheries for such fish.

Because there is already a significant landings history for chub mackerel, that species will not receive the comprehensive protections extended to other forage stocks.  Instead, landings will be limited to a generous 2.86 million pounds per year—far, far higher than the landings in any recent year other than 2013—in the waters between Maine and North Carolina. 

Should annual landings equal or exceed that level, the directed chub mackerel fishery will be closed, and a 40,000 pound possession limit imposed.  It should be noted that the amendment contains no provision for accountability measures that would be imposed if annual chub mackerel landings exceed 2.86 million pounds, or any other threshold.  As the regulation currently stands, fishermen may land an unlimited amount of chub mackerel, provided that they only do it in 40,000-pound increments once 2.86 million pounds of fish are dumped on the dock.

It should also be noted that the 2.86-million pound catch limit and 40,000-pound possession limits are derived from commercial, not biological, data.  According to information provided to supplement the new regulation, the 2.86 million pound catch limit merely reflects average landings for the period 2013-2015, which happen to be the highest landings in the last decade. 

Using a 20-year time series, 1996-2015, would have better reflected historical landings, and would have resulted in a catch limit of just 900,000 pounds.  Using even the last five years, 2011-2015, would have returned a more modest 1.73 million pound cap.  Thus, the choice of 2.86 million pounds was one of the least conservative approaches available—although it should be noted that at least one individual wasn’t even happy with that high figure, and argued that the annual limit should have been 5.25 million pounds, equal to the highest landings ever recorded.

The 40,000-pound bycatch limit had an origin similarly divorced from biology.  It is simply equal to the capacity of a bait truck, the assumption being that the chub mackerel caught will be used only for bait, and not for human consumption (although the chub mackerel that I caught last Monday ended up in a citrusy ceviche, where they proved quite enjoyable).

The good news and the bad news is that the chub mackerel regulations will only remain in force until December 31, 2020. 

The intent is that, before that date, the directed chub mackerel fishery will be integrated into the Mid-Atlantic Council’s Atlantic Mackerel, Squid and Buterfish Fishery Management Plan, and subject to a full array of fishery management measures.  Thus, there is hope that biology, rather than the capacity of a semi-truck’s trailer, will eventually govern the size of the landings.

But there is also the chance that the Council will not meet the deadline, NMFS will choose not to extend the current regulations, and the fishery will again be unregulated.

That would be unfortunate since, despite industry protestations, the chub mackerel is an important forage fish deserving of adequate protections and management.

As the threshers in Montauk will mutely attest.

THE MYTH OF THE CORNUCOPIA

The ancient Greeks told a story, which may have originated more than 2,500 years ago, of the infant Zeus, who was destined to be King of the Gods. Hidden from his father, Chronos, who planned to devour him, Zeus survived by drinking the milk of the she-goat Amalthea. Yet even as a small child, Zeus was very powerful; one day while he was nursing, he accidentally broke off one of Amalthea’s horns.

The horn was imbued with magical powers, making it able to provide a never-ending supply of nourishment. Some versions of the myth say that Amalthea’s horn would provide its owner whatever he or she wished for.

The Greeks called it the “Horn of Plenty,” but when the Romans adopted the myth, they called the horn “Cornucopia.”

Today, some people want to call it “the ocean.” At least, that’s how it seems.

In 1884, biologist Thomas H. Huxley said, “Probably all the great sea-fisheries are inexhaustible; that is to say that nothing we do seriously affects the numbers of fish.”

Sadly, we’ve learned that Huxley was very wrong. Even as he recorded those words, they were being proved wrong. Atlantic halibut,according to the National Marine Fisheries Service (NMFS), were already “heavily overfished in the 19th century,” so badly overfished that, “there are no signs of recovery to date.”

Since then, overfishing has led to the decline of many species in many different places, although none may be as symbolic, or as historically tragic, as the collapse of the cod fishery off New England.

Despite that, it seems that some people still believe that the ocean is a cornucopia, an inexhaustible source of fish that will supply whatever such people believe they need.

That unfortunate fact was recently illustrated in an article that appeared in The Fisherman magazine, which quoted a fishing tackle industry representative who spoke at a recent Washington, D.C. meeting. In making his case as to why the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) should be amended, and its conservation and stock rebuilding provisions weakened, that industry spokesman said,

“These amendments need to not only support the existing population of recreational anglers and fishing related businesses but also allow for new entrants to come into the fishery and businesses to grow and expand. The law needs to recognize that in its current form, our tradition of fishing cannot be passed onto our children without [Magnuson-Stevens] taking away opportunity from the rest of the fishing community. [Magnuson-Stevens], as it applies to the recreational fishing, is a flawed law, one that stifles growth of our industry and challenges the very future of our tradition.”

That speaker makes it clear that he, and the various industry groups and anglers’ rights organizations that seek to amend Magnuson-Stevens, are living in a mythical world, in which the ocean is an inexhaustible cornucopia that will always be capable of supplying the needs of expanding businesses and a growing population of anglers. That mythical mindset is in direct contradiction to the real-world premise that underlies current federal fisheries law, which treats the ocean as a marine community governed by the rules of biological sustainability.

The current process of setting annual catch limits for both commercial and recreational fishermen, as required by Magnuson-Stevens, is both simple and logical. The first step is to set the overfishing limit, to assure that harvest does not exceed maximum sustainable yield. Since maximum sustainable yield equates to “the maximum crop that can be removed from a population of animals or plants without adverse effects” [emphasis added], it represents an important threshold that must not be crossed; if it is, the affected fish stock will become less productive and less able to support viable fisheries in the long term.

Because the data used to calculate the overfishing limit is not perfectly precise, Magnuson-Stevens also requires that each regional fishery management council’s science and statistical committee evaluate the level of scientific uncertainty in the data, and establish an acceptable biological catch for each stock, which will almost always be somewhat lower than the overfishing limit. If that wasn’t done, and managers established annual catch limits that equaled the maximum sustainable yield for a stock, any scientific uncertainty at all could easily lead to overfishing.

Such process helps to ensure that overfishing won’t occur, and allows stocks to recover to the level that can safely produce the highest sustainable yields and economic returns. It implicitly recognizes that fish stocks are not inexhaustible, and that harvests cannot increase beyond sustainable levels merely because there is an increase in demand. For as cod, winter flounder and a host of other fish stocks have taught us, once harvest exceeds maximum sustainable yield, abundance inevitably declines and, in the long run, provides less fishing opportunity for everyone.

And that’s where the industry representative quoted above went wrong. He complained that “The law needs to recognize that in its current form, our tradition of fishing cannot be passed onto our children without [Magnuson-Stevens] taking away opportunity from the rest of the fishing community.” But it’s not Magnuson-Stevens that limits the opportunity for harvest; basic biology does that. Magnuson-Stevens merely prevents fishermen from ignoring biological realities and driving stocks into decline.

Fishermen have been doing that for a very long time. In the late 19th century, Atlantic sturgeon were so abundant in the Hudson River that they were nicknamed “Albany beef,” and supported a substantial commercial fishery. Like the Atlantic halibut population that crashed at the same time, Atlantic sturgeon couldn’t support an expanded fishery; the population collapsed and never recovered. In 2012, the United States Fish and Wildlife Service determined the Hudson River stock to be endangered.

A number of other stocks became seriously depleted over the years, and it was that depletion that led to the passage of the Sustainable Fisheries Act of 1996 (SFA), a bill that amended Magnuson-Stevens into the effective fishery management tool that it is today.

Prior to SFA, federal law allowed fisheries managers to establish “optimum yield” from a fishery “on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor” [emphasis added]. Predictably, managers used that language to justify overfishing, which allowed fishermen to enjoy greater short-term economic benefits. However, because such overfishing led to a long-term decline in both abundance and economic returns, SFA amended the provision, replacing “modified” to “reduced,” so that economic concerns couldn’t be used as an excuse to overharvest.

Now, it appears that at least some members of the recreational fishing community are trying to turn back the clock, and again allow stocks to be overfished in the name of a “flexibility” that will “allow for new entrants to come into the fishery and businesses to grow and expand.”

That approach didn’t work prior to SFA, and there is no reason to believe that it will be any more successful in the future.

For Thomas Huxley was wrong, fish stocks are not inexhaustible. And the bottomless cornucopia was, after all, just one more Greek myth.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/

SOME THOUGHTS ON MENHADEN MANAGEMENT

Menhaden management has been in the news lately.

On the East Coast, the big news is that, after a fight that spanned more than two decades and began in the bad old days when the hungry foxes of the menhaden industry had effective control of the management henhouse, the Atlantic States Marine Commission may finally be ready to acknowledge the species’ role as a forage fish, and adopt management measures that account for menhaden’s value to the ecosystem, and not just to an industrial fishery.

An amendment to ASMFC’s Atlantic menhaden management plan will be debated at that organization’s annual meeting in October.  Prior to that, public hearings will be held, to obtain citizens’ input on that amendment, in nearly every state on the Atlantic seaboard.

In the Gulf of Mexico, anglers and conservation organizations have recently begun questioning whether the purse seine reduction fishery, which removed nearly 1.2 billion pounds of menhaden from the Gulf in 2015, is ecologically viable.  The renewed attention has been largely attributed to efforts by Omega Protein, the largest menhaden harvester in the nation, to have its Gulf operation certified as “sustainable” by the Marine Stewardship Council.

By some estimates, Omega may harvest as much as 90% of the menhaden landed in U.S. waters (it operates the only purse seine reduction fleet on the Atlantic Coast, where it landed more than 300,000,000 pounds of menhaden in 2015, in addition to its Gulf landings).  Naturally, it doesn’t go along easily with efforts to restrict its landings, and so its profits.

In its press releases and contacts with the media, Omega continually repeats that mantra that Atlantic menhaden are not overfished and that overfishing is not occurring, and that the Gulf menhaden

“stock is sustainably harvested.”

According to Ben Landry, who is responsible for Omega’s public relations campaigns,

“I don’t think there’s a lot of biologists on either coast who are concerned this stock is troubled or is being overfished.”

It sounds reassuring, but in uttering those words, Landry is completely ignoring the ecosystem/forage fish issue.  

That’s because the reference points currently used to manage the Atlantic menhaden stock are still focused on the menhaden alone—a “single-species management” approach that may accurately portray whether menhaden harvest is “sustainable”—that is, won’t cause the stock to decline in abundance—but do not inform managers as to whether there are enough menhaden available to serve their traditional role as food for a wide variety of predators, ranging from other fish to birds such as osprey, bald eagles and various seabirds, to marine mammals up to and including the great whales.

In the Gulf, where there is no organization analogous to ASMFC with the ability to enforce the provisions of a comprehensive management plan (the Gulf States Marine Fisheries Commission exists, but in a solely advisory capacity), and menhaden management is the sole province of the five Gulf states, there is no clear definition of what “overfished” and “overfishing” even means with regard to menhaden, and much less to the overall environment.

Thus, at the current time, no one can prove Landry, and his bosses at Omega, wrong if they say that menhaden are not overfished, overfishing isn’t occurring, and even that the current harvest levels are sustainable over the long term.  

From a purely semantic perspective, they are probably correct. 

However, whether the current levels of harvest have a negative impact on the ecosystem, and are the best use of what must be considered a keystone species, is another question altogether.

A similar issue exists with respect to bycatch—non-targeted species that are incidentally caught and killed in the very large purse seines used to harvest menhaden.

The fishing industry is quick to dismiss the bycatch issue, with one public relations website, savingseafood.org, saying that

“The menhaden fishery is known to be one of the ‘cleanest’ in the world in terms of the amount and rate of by-catch.  All studies have concluded that the by-catch in the menhaden fishery is insignificant.  Studies show that in both the Atlantic and Gulf menhaden fisheries, by-catch is less than one percent by weight of the total catch.  Of that one percent, more than 90 percent of by-catch is non-recreationally-important species like mullet and croaker.”

Again, while that statement is technically correct (at least, except for the last sentence, which is based on data from the Gulf of Mexico; last year, anglers in the Gulf harvested over one million croaker and more than two million striped mullet, making it hard to say that either species is “non-recreationally-important), it intentionally conceals a bigger truth—that even if bycatch is “less than one percent by weight of the total [menhaden] catch,” one percent of 1.2 billion pounds (in the Gulf alone) is still a very big number.

If bycatch was fully 1% of Gulf menhaden landings—and we don’t know that, because such data is, for reasons of questionable government policy, considered confidential business data and not released to the public—we’d be talking about 12,000,000 pounds of fish dumped and destroyed just so Omega could sell fish meal to China.  That seems like a bit of a waste.  Even if that number was considerably smaller, and at least one study suggests that bycatch might be closer to one-half of one percent than the full one percent figure, we’re still talking about a lot of wasted, which might be particularly significant when it comes to particular species.

The croaker and mullet dismissed in the savingseafood.org piece come to mind.  If they truly constitute 90% of the reduction fleet’s bycatch in the Gulf, we’re talking about 10.8 million pounds of fish—well over three times the weight of both species, combined, taken by anglers—that could have been enjoyed by anglers or, particularly in the case of mullet, could have nourished the fish that anglers and commercial fishermen pursue, but were instead rendered into industrial products by Omega—assuming that they were used at all.

There is also a significant impact on larger species.  

In the Gulf, the menhaden fishery is estimated to have killed 363 metric tons—nearly 800,000 pounds—of blacktip sharks in 2003.  Blacktips are a popular recreational and commercial shark species; in 2003, those fisheries landed approximately 181,000 pounds and 1.4 million pounds, respectively.  Thus, blacktip bycatch in the Gulf menhaden reduction fishery was more than 4 times the recreational landings, and about 57% of the commercial harvest, representing a significant waste of a valuable natural resource.

We see much the same story on the East Coast, where somewhat better data is available.  There, in 2003, the menhaden reduction fishery was estimated to have killed 437.3 metric tons—over 960,000 pounds—of Spanish mackerel, an amount equal to more than 60% of the recreational landings that year.  

It is also estimated to have killed 242.7 metric tons—more than 530,000 pounds—of striped bass.  While that is well below either the recreational or commercial harvest, it still represents a waste of an important resource, and the most prized sportfish that swims in the waters of New England and the upper mid-Atlantic.

As we go into the ASMFC menhaden hearings, leading up to the decision on the new amendment, and its ecological reference points, in October, we’re certain to hear the menhaden industry argue against any changes, and for an increase in their harvest.

We will hear them say that the stock’s not overfished, that there’s no overfishing, that the fishery is sustainable, and that bycatch is relatively small.

And all that is true.

But with a broader and more encompassing vision, it’s easy to realize that those truths aren’t the ones that really matter, because there are greater truths that should be given precedence. 

In the overall scheme of things, it is far more important that enough menhaden remain in the water, to fulfill their role as a keystone forage species, than it is to harvest enough menhaden to make Omega’s shareholders happy, even if that harvest is arguably sustainable.

And while bycatch might be small, when compared to the menhaden landings, it still represents a very large quantity of wasted fish, and can have a substantial impact on individual species--an impact comparable to, or substantially greater than, directed commercial or recreational landings.

So listen to the justifications with a knowing ear, and don’t be led astray.  

If you’re on the East Coast, come out to the hearings when they’re held in your state, and speak out in favor of a new direction in fisheries management, which recognizes that entire ecosystems matter, and will help to fully restore menhaden to their proper role in the waters off our coasts.

If you’re in the Gulf, your fight has just begun.  But we on the East Coast can tell you that it is a fight that is very worthwhile, and a fight that can be won, though it may take some time to do it.

Wherever you are, we have some work to do.

FACTS ASSAIL FOES OF NMFS' RED SNAPPER MANAGEMENT

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.

SOME MIGHT CALL IT HYPOCRISY

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…”

The Coastal Conservation Association called the reopening

“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.