The
Atlantic States Marine Fisheries Commission’s Summer Meeting was held this
week.
Although there were a number of
items on the agenda,
the meeting of ASMFC’s Atlantic Menhaden Management Board was probably
viewed as the main event, with all of the other meetings forming a sort of
undercard (in the end, that didn’t prove true, with some troubling news coming
out of what had been expected to be an uneventful Atlantic
Striped Bass Management Board meeting; that will be discussed here at some
point next week).
Menhaden became a hot item after the
Virginia legislature, which controls menhaden management in that state,
refused to adopt the 51,000 metric ton cap on the large-scale “reduction”
harvest of menhaden in Chesapeake Bay, which was included in the
new Amendment 3 to ASMFC’s menhaden management plan. Such refusal left an 87,216 metric ton cap in
place, and put Virginia into technical noncompliance with ASMFC’s menhaden
management plan.
As a result, at ASMFC’s Spring Meeting last May, the
Atlantic Menhaden Management Board considered a motion that read
“Move that 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 the
following measure 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 mt.”
If the
legislature failed to adopt the lower Bay Cap, as ultimately proved to be the
case, by the August meeting, the Atlantic Menhaden Management Board could then find them out of
compliance with the management plan, a which, if affirmed by ASMFC’s Policy
Board and then by the Secretary of Commerce, could result in a total moratorium
being placed on all of Virginia’s menhaden fisheries until the state adopted
the lowered Bay Cap.
The Bay Cap was supported by a very broad
array of anglers and conservation groups, who believed it was necessary to
maintain the ecological health of Chesapeake Bay. A
grassroots appeal made by the Theodore Roosevelt Conservation Partnership provides
a good summary of the pro-Cap side’s arguments.
“Menhaden, the small, oily baitfish also known as bunker or
pogie, are well-deserving of their other nickname: ‘the most important fish in the sea.’ They are a critical food source for many of
the sportfish that we love to pursue and they filter gallons of water a minute
to improve water quality where polluted runoff is a serious threat to habitat, like
the Chesapeake Bay.
“For decades, the reduction fishing industry---which ‘reduces’
menhaden for feed and oil for use as pet food and agriculture feed—lobbied for
higher and higher menhaden quotas. Last
year, anglers pushed back. The Atlantic
States Marine Fisheries Commission responded by voting to place a modest cap to
conserve menhaden in the Chesapeake Bay and study methods of managing forage
fish with their ecological importance in mind.
“But in Virginia, a single company representing a last
harmful relic of past mismanagement may not comply with the cap. It’s time for the Atlantic States Marine
Fisheries Commission and the Secretary of Commerce to hold Omega Protein
accountable and, if necessary, shut the reduction fishery down…”
More generally, Bay
Cap supporters claimed that such cap was needed to prevent “localized
depletion,” which they said, occurred when the reduction fishery removed so
many menhaden from Chesapeake Bay that there was not enough to support striped
bass and other predatory fish, fish-eating birds and marine mammals.
The reduction fishery opposed the Bay Cap, arguing that no
study had ever clearly established that predators were harmed by localized
menhaden depletion in the Bay. It found
support in a statement in Amendment 3 itself, which said that
“In 2005, the Board established the Atlantic Menhaden
Research Program (AMRP) to evaluate the possibility of localized
depletion. Results from the peer review
report in 2009 were unable to conclude localized depletion was occurring in the
Chesapeake Bay and noted that, given the high mobility of menhaden, the
potential for localized depletion could only occur on a ‘relatively small scale
for a relatively short time.’”
Thus, the battle lines for last Tuesday’s meeting were set.
The meeting opened with a substitute
motion brought by Maryland, which would have found Virginia out of compliance
only if the 51,000 metric ton Bay Cap was actually exceeded, and not merely
because the legislature failed to act. Such motion had the support of not only Maryland, but also of Virginia and the
Potomac River Fisheries Commission, so every Chesapeake Bay jurisdiction with
an interest in menhaden was on board.
Other Management Board members, however, had their doubts.
Robert Ballou, the proxy for Rhode Island’s marine fisheries
director, was concerned that not finding Virginia out of compliance until it
actually exceeded Amendment 3's Bay Cap would set a precedent that other states
would use to avoid adopting needed regulations.
He feared that extending such an opportunity to Virginia would “tear at
the fabric” of what ASMFC had done in the past.
A number of Management Board members expressed similar
thoughts. Some of them argued that it
was a matter of principle, and that ASMFC should not allow Virginia to ignore
the demands of the management plan, even though it was pretty certain that, as
a practical matter, Virginia’s 2018 reduction harvest in Chesapeake Bay would
fall far below 51,000 metric tons.
Others were not so sanguine.
Jim Gilmore, the marine fisheries director from New York and also the
current Chairman of ASMFC, reluctantly supported the substitute motion. He admitted that
“We have two choices and neither of them is very good,”
which was a clear reference to the likelihood that the
Secretary of Commerce would overturn any noncompliance finding, and so undercut
the authority of future ASMFC actions.
Undoubtedly for that reason, Mr. Gilmore noted that
holding Virginia responsible for what he called “a technical noncompliance”
might do more harm than good. He recalled that when he first became involved
in fisheries management, a mentor reminded him that
“What your job is, is to serve the resource,”
and said that
“My opinion is, to serve the resource right now,”
ASMFC should approve the substitute motion.
His position, too, garnered its share of support
Pat Kelliher, the fisheries director from Maine, reflected
the dilemma the Management Board was in when he observed that
“Both sides of this issue are concerned with the fabric of
the Commission.”
They just disagreed on what action was most likely to tear
that fabric apart.
As the vote drew near, it wasn’t at all clear which side of
the debate would prevail.
But that all changed when Chip Lynch, an attorney for the
National Marine Fisheries Service, took the floor. He said that ASMFC had to decide for itself
what to do, but observed that if ASMFC found Virginia out of compliance, it
would be the first time in more than 24 years that such noncompliance finding
was applied to a species that was neither overfished nor subject to
overfishing, and for which
“there is record evidence from the leadership of the
Commission that the measure [giving rise to the noncompliance finding] is not
related to conservation.”
That was a key point, because even if the Secretary of
Commerce was inclined to support any such noncompliance finding (and
his past actions suggest that he was probably not so inclined), his ability
to do so was limited by the express terms of the Atlantic Coastal Fisheries Cooperative Management Act,
which states in relevant part that
“Within 30 days after receiving a notification from the
Commission [that a state has been found out of compliance] and after review of
the Commission’s determination of noncompliance, the Secretary shall make a finding
on
1) whether
the State in question has failed to carry out its responsibility to [adopt and
enforce the relevant provisions of an ASMFC management plan]; 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. [emphasis added]”
I’ve been an attorney for about 40 years and, based on the administrative
record, there is no way that I would have been able to advise a client that Amendment
3’s Bay Cap was necessary to conserve the menhaden fishery. Anyone listening to Mr. Lynch speak would
have been just about sure that he couldn’t, in good faith, give such advice to his client,
either.
That changed the tenor of the debate.
When a vote was taken, the substitute motion was voted down,
but Virginia was not found out of compliance.
Instead, the Management Board again voted to postpone any
action on the noncompliance motion, this time until its February 2019 meeting,
to give everyone involved in the issue a chance to work it out; that’s
particularly important for the Virginia legislature, which will meet over the
winter.
While it wasn’t a satisfying outcome—most folks involved
with the issue feel that Virginia’s failure to adopt the Bay Cap was inherently
wrong—it was probably inevitable, for as Mr. Gilmore noted, the consequences of
finding Virginia out of compliance could, and I believe would, have been worse.
In the meantime, hope remains that, before next February, people
will come together in good faith to work out the issues, so that a vote on noncompliance will not be needed.
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