ASMFC FACES MENHADEN DILEMMA

On the surface, things look cut and dried.

Last November, the Atlantic States Marine Fisheries Commission adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden which, among other things, cut the amount of menhaden that the large-scae “reduction” fleet could catch in Chesapeake Bay from 87,216 to 51,000 metric tons.  When it announced such reduction, ASMFC said that

“This recognizes the importance of Chesapeake Bay as nursery grounds for many species by capping recent reduction landings from the Bay to current levels.”

making it very clear that the Commission reduced the so-called “Bay Cap” not only to protect the menhaden itself, but to also protect the many other fish species that live in Chesapeake Bay during the early stages of their lives, which depend on menhaden for food.  

The Bay Cap thus represented one of ASMFC’s first, very small steps toward implementing the concept of “ecosystem management” of fisheries, which takes into consideration not only the single stock being managed, but that stock’s role in the overall ecosystem.

It is an approach particularly suited to forage fish such as menhaden, which are typically key threads in a food web that supports many different, and often economically valuable, species of fish, as well as fish-eating birds and marine mammals, but which have relatively little economic value themselves, and so must be caught in very high-volume fisheries in order to yield an acceptable profit. 

Viewed from a real-world perspective, the Bay Cap did nothing to limit the reduction boats’ harvest of menhaden in Chesapeake Bay; such harvests did not exceed 50,000 metric tons in any of the years 2014-2016, the last data available to the people who drafted Amendment 3.  Even so, the reduced Bay Cap elicited a knee-jerk reaction from various organizations connected to the reduction fishery. 

Omega Protein Corp., a U.S. subsidiary of the big Canadian aquaculture company Cooke, Inc., is the sole participant in the reduction fishery for Atlantic menhaden.  It aggressively opposed the reduced Bay Cap, saying that

“By its own admission, the commission did not act scientifically when it reduced the amount of menhaden that can be harvested in the Chesapeake Bay by over 40 percent.  In replying to Virginia’s since-withdrawn appeal of the Chesapeake Bay cap, the commission admitted that Amendment 3, which codifies the cap, ‘does not provide sufficient evidence to support’ claims of localized depletion.  Ostensibly aimed at preventing localized depletion of menhaden in the bay, there is no scientific evidence that a bay cap is necessary, or that localized depletion is actually occurring.”

Of course, there is also no evidence sufficient to determine that localized depletion is not occurring, and faced with a situation where the facts have not been revealed with any certainty, ASMFC opted to take a precautionary approach that prevented any increase in the removals of menhaden from Chesapeake Bay, an approach that could well end up protecting the bay ecosystem while doing harm to no one.

However, Omega accurately quoted ASMFC’s response to Virginia’s now-withdrawn appeal, and that response remains on the record to cloud the menhaden management picture.

As for Virginia, its position is clear.  

Menhaden are the sole species of salt water fish managed by the state’s legislature, not by its state fisheries agency.  That’s a situation that seems to suit Omega, which reportedly poured about $128,000 into the most recent election cycle, just fine.  For perhaps as a result of just such largesse, the legislature refused to amend Virginia’s laws to adopt the lowered Bay Cap, even though the state’s newly-elected governor urged it to do so.

That put Virginia in technical violation of ASMFC’s menhaden management plan, and put ASMFC into a bind.  

Based on Virginia’s failure to comply with the provisions of the plan, ASMFC could have initiated formal noncompliance proceedings at its May 2018 meeting; such proceedings could ultimately result in the complete closure of Virginia’s menhaden fishery until such time as Virginia chose to comply.

A motion to begin such proceedings was made at the May meeting of ASMFC’s Atlantic Menhaden Management Board, when Chris Batasavage, the Administrative Proxy from North Carolina decided to

“Move the Atlantic Menhaden Board recommend to the ISFMP Policy Board that the Commonwealth of Virginia be found out of compliance for not fully and effectively implementing and enforcing Amendment 3 to the Atlantic Menhaden Fishery Management Plan if the State does not implement following measures from Section 4.3.7 (Chesapeake Bay Reduction Fishery Cap) of Amendment 3: The annual total allowable harvest from the Chesapeake Bay by the reduction fishery is limited to no more than 51,000 metric tons.”

That motion was quickly seconded by Jim Estes, the Administrative Proxy from Florida.

Robert Boyles, the marine fisheries director from South Carolina, gave such motion strong support, saying that

“…I pulled up the U.S. Code and would remind you of the 1993 Atlantic Coastal Cooperative Fisheries Management Act.  Finding of the U.S. Congress Section 5-1-01 of the U.S. Code, ‘the failure of one or more Atlantic states to fully implement a coastal fishery management plan can affect the status of Atlantic Coastal Fisheries.’  I would like to add emphasis here, Madam, ‘and can discourage other states from fully implementing coastal fishery management plans.’  I’ll speak for myself and say I’m discouraged.  We have embarked on this action, and it took a long time to bring us to Baltimore [where Amendment 3 was finalized].  I went back and I looked, and it was a strong vote to approve Amendment 3; 17 to 1, I believe.  I’m discouraged.  I think if I may…I think we can make a strong case that we really want compliance here.

“The law requires compliance.  But I saw an opening and I saw the words discouraged.  I think that part of what we need to keep in mind here is that as you all know I like to quote Dr. Franklin, who said ‘If we don’t all hang together we will certainly hang individually’…”

It was a good argument, and on merit alone, should have carried the day.  But there was another consideration that was also in everyone’s mind, a consideration that has had the potential to taint every action that ASMFC has taken in the past year.

It arises out of the fact that ASMFC’s finding of noncompliance isn’t enough to shut down a state’s fishery pursuant to the provisions of the Atlantic Coastal Fisheries Cooperative Management Act.  Instead, within 10 days after making such finding, ASMFC must send a letter notifying the Secretary of Commerce of such action, and

“Within 30 days after receiving a notification from the Commission…and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on—whether the State in question has failed to carry out its responsibility under…this title; and if so, whether the measures the State has failed to implement and enforce are necessary for the conservation of the fishery in question.  [emphasis added, internal numbering deleted]”

If the Secretary finds both that the state was not in compliance with some or all measures in the relevant fishery management plan, and that such measures are necessary for the conservation of “the fishery in question,” the Secretary must then completely shut down such fishery in the noncompliant state until such state amends its management measures to accord with the ASMFC plan.

For nearly 24 years, regardless of the Administration that sat in the White House and regardless of the party in power, the Secretary of Commerce always supported ASMFC’s noncompliance findings.  But now, we have an Administration in Washington that treats notions of fisheries conservation—notions of any sort of conservation, really—about the same way that a he-dog treats a fire hydrant.

Last year, breaking over two decades of precedent, it decided to overturn an ASMFC decision finding New Jersey out of compliance on summer flounder, without even consulting its own experts on the summer flounder fishery.

That action followed close on the heels of another which, although not impacting ASMFC, violated federal fisheries law by reopening the recreational red snapper season in the Gulf of Mexico, even though it new that overfishing, and a delay in rebuilding the stock, was the likely result.

Thus, Adam Nowalski, the Legislative Proxy from, ironically, New Jersey was not out of line when he asked

“Keeping in mind a recent finding by the Secretary of Commerce.  Does the Commission feel that it can make a compelling argument to the Secretary of Commerce that this regulation is needed for the conservation of the resource?”

Given that Virginia landed 146,597 metric tons of menhaden in 2016, the lion’s share of the 177,991 metric tons landed in the Atlantic, ASMFC could well have a hard time arguing that  not catching 36,000 metric tons—the difference between Virginia’s current Bay Cap and the one mandated by Amendment 3—in Chesapeake Bay, and catching it in the ocean instead, is necessary to conserve Atlantic menhaden.

That’s particularly true when dealing with a Secretary of Commerce who has reliably elevated short-term profit above long-term sustainability.  An argument that harvesting the 36,000 metric tons in the ocean instead of the Bay is necessary to conserve Atlantic menhaden seems destined to fall on his very deaf ears.

Thus, ASMFC finds itself in a bad place.

If it fails to find Virginia out of compliance, it weakens its authority, and its future ability to convince member states to comply with politically unpopular management measures.

On the other hand, if it finds Virginia out of compliance, and the Secretary overrides its decision, it has shown itself to be a paper tiger, unable to enforce its own management actions.  Such a demonstration could haunt ASMFC even after the current Administration is gone, as the precedent of Commerce repeatedly overriding Commission decisions lives on.

Dennis Abbot, the Legislative Proxy from New Hampshire, certainly had that in mind when he noted,

“…I think that this issue goes even beyond the question of noncompliance with Virginia.  It really goes to the health of this organization…”

Most of the Management Board agreed.  Instead of voting on Mr. Batasavage’s motion, they approved a motion by Patrick Kelliher, the state fishery manager from Maine,

“to postpone to the August Commission Meeting Week and in the interim send a letter to the Commonwealth of Virginia detailing the contents of the proposed motion,”

with 16 in favor, 2 abstaining.

The “August Commission Meeting Week” begins next Tuesday, and the Atlantic Menhaden Management Board will meet on its first day.  Virginia has done nothing to come into compliance with the new Bay Cap.

As a result, there will undoubtedly be a strong effort to find Virginia out of compliance.  I suspect that such effort will garner its most enthusiastic support from southern states that do not often have to rely on ASMFC to serve as an arbiter in interstate conflicts and competitions for shares of migratory fish stocks.

They will mostly be concerned with maintaining the prestige and authority of the institution, and the strict enforcement of ASMFC management plans.

There will probably also be a strong effort to avoid a final confrontation with Virginia, that will end up on the Secretary of Commerce’s desk.  That effort, I think, will arise out of the Mid-Atlantic and maybe New England states.  Fishery managers from those regions will be concerned about the Secretary of Commerce repeatedly undercutting ASMFC's  fishery management plans, fearing that such Secretarial actions could well throw the entire cooperative interstate management program into chaos, and thus cripple efforts to manage and conserve everything from striped bass to summer flounder.

They won’t want to risk putting another nail into ASMFC’s coffin by fighting over where--not how much, just where--Virginia harvests its menhaden.

Right now, I have no idea which side will prevail and, given the real-world impacts of the vote, am not even 100 percent sure which side should prevail.

I just hope that the Management Board will play a long game, and do what’s best for both the menhaden and ASMFC in the long term.

Maybe, somehow, a deal will be struck before Tuesday.  

Maybe not.

But whatever happens, I hope that the result is not that the fish, in the long term, all lose.