iT'S COMPLICATED: MENHADEN HARVEST EXCEEDS ASMFC CAP IN THE CHESAPEAKE BAY

A week or so ago, East Coast anglers and conservation advocates were outraged when they learned that Virginia-based Omega Protein, a United States subsidiary of Cooke Inc., the big Canadian aquaculture company would, for the first time in years, harvest more than 51,000 metric tons of menhaden from Chesapeake Bay.  Because of Omega’s actions, Virgina’s 2019 menhaden landings from Chesapeake Bay will exceed the 51,000 metric ton cap for so-called “reduction fleet” landings established in Amendment 3 to the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Plan for Atlantic Menhaden, and set the stage for attempts at remedial action.

The question is, what sort of remedial actions, if any, will be taken, and will any of those actions do any good in the end?

The answers to that question are anything but clear.

Anyone unfamiliar with how ASMFC works, or the application of its management plans, might think that the answers are simple, and that the mere fact that Virginia’s 2019 menhaden reduction landings exceeded the Bay cap will lead to consequences that include corrective actions.  

Unfortunately, the ASMFC doesn’t work quite that way.

The ASMFC itself is not a rulemaking body.  It is an interstate compact of states, joined by a few other entities including Washington, D.C. the Potomac River Fisheries Commission, the United States Fish and Wildlife Service, and the National Marine Fisheries Service, which have joined together to conserve and manage coastal marine resources.

Thanks to the Atlantic Coastal Fisheries Cooperative Management Act, which became law in 1993, when the ASMFC adopts a fishery management plan for any species, it may require its member jurisdictions to

“implement and enforce the measures of such plan within the timeframe established in the plan.”

The problem is that, on occasion, states go rogue and refuse to adopt one or more provisions of an ASMFC management plan.  That’s exactly what happened in the case of menhaden.  

While there’s plenty of reason to believe that Virginia’s professional fishery managers would be willing to go along with the ASMFC’s management measures, menhaden happen to be the only Virginia saltwater fishery that is managed not by Natural Resources professionals, but by the Virginia legislature, which means that their management is based more on politics than on science.

So far, such political considerations have led the Virginia legislature to refuse to reduce the Bay Cap to 51,000 metric tons.  It remains at 87,216 metric tons, a level established by an earlier ASMFC action.  When Omega’s harvest exceeded51,000 metric tons earlier this year, the company wasn’t breaking any laws—a pointthat it repeatedly makes when it speaks to the press—and won’t be breakingVirginia law unless and until its harvest exceeds 87,216 metric tons.

Virginia, however, is in violation of its obligations to the ASMFC; by refusing to adopt the 51,000 metric ton Bay cap, the Virginia legislature placed Virginia out of compliance with the menhaden management plan.  And when that happens, the non-complying state will suffer consequences.

At least, that’s how things work in theory.

The same Atlantic Coastal Fisheries Act that empowered the ASMFC to adopt binding, cooperative management plans contains provisions for dealing with states that, for one reason or another, don’t want to cooperate on any management issue.  Once the ASMFC makes a formal finding of non-compliance, that finding is forwarded to the Secretary of Commerce who, after appropriate deliberation, may then impose a moratorium that shuts down the offending state’s entire fishery for the affected species, until such state decides to comply with the ASMFC’s management plan.

The law provides that

“Within 30 days after receiving a notification from the Commission [that a state is out of compliance] 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 [to implement and enforce a management plan’s provisions]; and if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question. [internal numbering and punctuation deleted]”

That provision worked well for many years, with various Secretaries of Commerce supporting the ASMFC’s findings and providing a stick that ultimately assured the compliance of any state that wasn’t willing to accept ASMFC’s cooperative management carrot. 

But then something changed.  Wilbur Ross became the Secretary of Commerce.  And unlike his predecessors, Wilbur Ross cared little for conservation.  Instead, he was, and is, all about monetizing fishery resources, pushing yields up to their maximum sustainable levels, and increasing fishery landings for both domestic consumption and for export.  He has not provided a sympathetic ear to the ASMFC, or to anyone else, who argued for precaution, or for elevating the long-term health of any fish stock over the possibility to turn a quick profit.

Thus, shortly after taking office in 2017, he became the first Secretary of Commerce in history to overturn an ASMFC non-compliance finding, allowing New Jersey to maintain recreational summer flounder regulations that didn’t meet the conservation and management standards of the ASMFC plan.  Secretary Ross didn’t even bother to consult with NMFS’ regional office, and the people who were most familiar with the fishery, before finding in New Jersey’s favor.

At about the same time, Secretary Ross also extended the recreational red snapper season in the Gulf of Mexico, knowing as he did so that such extension would lead to overfishing, and so be a violation of federal law.  Commerce Department emails, obtained in subsequent litigation, revealed that Secretary Ross went ahead with the illegal opening, which he knew would lead to overfishing, for no better reasons that it would let some industry folks make money—and because he thought that he could get away with it.

A June 1, 2017 email to the Secretary from Earl Comstock, then the Director of Commerce’s Office of Policy and Strategic Planning, noted that

“You have heard directly from a broad range of interests that this short season will have devastating impacts on the multi-billion dollar recreational sport fishing industry, and particularly on marinas, restaurants, boat dealers, boat builders, and tackle manufacturers that depend on the recreational anglers in the Gulf…

“An action to extend the summer season to 46 days (three days a week through June, July, and August with 4^th of July and Labor Day included) would be very well received…It would result in overfishing of the stock by six million pounds (40%), which will draw criticism from environmental groups and commercial fishermen…

“[However,] under the Magnuson-Stevens Act a court can’t issue a temporary restraining order, so your action would remain in effect for at least 45 days before a court could act…  [emphasis added]”

So it’s abundantly clear that given the choice between a little more economic activity or needed conservation measures, even legally-mandated conservation measures, Secretary Ross is going to rule against conservation whenever he has the opportunity to do so.

Thus, it’s not too hard to predict what he might do should the ASMFC declare Virginia out of compliance on menhaden.

That’s particularly true when one realizes that in both the case of Gulf red snapper and that of New Jersey summer flounder, the available science and law militated against Secretary Ross’ decisions, while in the case of Virginia menhaden, the science, as applied to current law, isn’t all that clear—and the Commerce Department is already sending strong hints on what it plans to do should the ASMFC forward the matter along.

The Bay cap on menhaden harvest was adopted to prevent localized depletion, a situation that some believe to occur when too many menhaden are removed from Chesapeake Bay, and not enough remain to provide an adequate forage base for local predators.  There has been at least one study that suggests that the health of Chesapeake Bay striped bass suffers when menhaden are scarce.  

Yet the most recent amendment to ASMFC’s menhaden management plan downplays the local depletion issue, saying

“In 2005, [ASMFC’s Atlantic Menhaden Management] 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 that 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.’

“While the AMRP peer review report was not able to provide conclusive evidence that localized depletion is occurring, maintenance of the Chesapeake Bay reduction fishery cap does provide a greater level of protection in the region than the [total allowable catch] alone.”

The Commerce Department is certainly focused on that language.  At the August 2018 meeting of ASMFC’s Atlantic Menhaden Management Board, Chip Lynch, an attorney for the National Oceanic and Atmospheric Administration’s Office of General Counsel, advised the Management Board that

“If you…vote for a noncompliance, the Federal Government will take it and we will analyze it according to our process set forth in the Atlantic Coastal Act.  But I want to underscore the issue that we will need to look at it through the lens of conservation.  That’s what Congress has dictated.

“Fortunately we’ll be able to look at the record that you all develop, because you have the same standard…under your own Commission ISFMP Charter says that you need to find that before sending any noncompliance over you need to discuss and make a finding that the measure in question that is not being followed, jeopardizes the conservation of the fishery in question.

“…I know from General Counsel’s point of view, I am interested in hearing you develop the record as to how this particular—the Bay Cap—failure to implement the Bay Cap will jeopardize the conservation of the resource.

“…There has been discussion that this particular situation is unique.  The idea that a noncompliance situation would occur, or has occurred because of an inability of a Legislature to implement a regulation is absolutely not unique…What is unique is that this would be the first time ever in the history of the Atlantic Coastal Act and the Striped Bass Act, which is really the genesis of this noncompliance provision in the Atlantic Coastal Act, it would be the first time ever that the Federal Government would receive a noncompliance referral for a fishery that is not overfished, overfishing is not occurring, and there is record evidence from the leadership of the Commission that the measure is not related to conservation.  That is unique.  [emphasis added]”

Although it’s easy to disagree with the statement that the Bay Cap isn’t linked to conservation—it is definitely linked to the conservation of striped bass and other predators that depend on menhaden for forage—that sort of conservation linkage isn’t addressed by the Atlantic Coastal Act, which states that the measure must be “necessary for the conservation of the fishery in question.”  And Amendment 3 made it clear that the Management Board wasn’t really convinced that localized depletion was a real problem.

Although he didn’t expressly say so, it was pretty clear from his comments that Mr. Lynch was telling the Management Board that if it found Virginia out of compliance, the Secretary of Commerce would overturn such finding.

That placed the ASMFC in a seemingly unresolvable quandary.  It could either forge ahead and find Virginia out of compliance, knowing that such finding would not be sustained by the Secretary, or it could do nothing, and effectively admit that, at least for the duration of the current conservation-hostile Administration, it was effectively a paper tiger unable to effectively enforce the provisions of its management plans.

Ultimately, the Management Board tried to find a middle way.

Because Virginia hadn’t come close to harvesting 51,000 metric tons of menhaden in the Bay for a number of years, making the noncompliance issue more of an academic issue than a threat to either the Bay ecosystem or the menhaden themselves, it proposed a motion that would only find Virginia out of compliance if its harvest in Chesapeake Bay exceeded 51,000 metric tons.

That motion failed, and action on the motion was postponed until the February 2019 Management Board meeting, with the hope that the Virginia legislature might see the light and lower the Bay cap by then.  It never happened.  Thus, knowing it was firmly locked into a no-win situation, the Management Board finally passed a motion that read

“Move to postpone indefinitely a recommendation to the ISFMP Policy Board to find the Commonwealth of Virginia out of compliance with Amendment 3 of the Atlantic Menhaden FMP for failure to implement a reduced cap on harvest from the Chesapeake Bay provided the annual catch from the Chesapeake Bay reduction fishery does not exceed that established by Amendment 3.  The Board will consider action to modify the Bay Cap after it completes action on ecological-based reference points.  [emphasis added]”

It seemed like a safe move at the time, since it had been years since the reduction fishery harvested 51,000 metric tons in the Bay, and ecological-based reference points may well give rise to a new amendment in which everything, including the Bay cap, will be reconsidered.

Yet fish have a way of confounding everyone’s schedules, and Omega’s unexpectedly high harvest has again thrust the ASMFC into the same no-win situation.  It’s the same situation that ASMFC faced last year, where it can find Virginia out of compliance, and have that finding overturned by a conservation-averse Wilbur Ross, or do nothing, and still appear impotent.

It's not unlikely that the Management Board will do the same thing that it did last year, and postpone any action until February.  But this time, there is hope that things will turn out differently.

The ultimate answer to resolving the menhaden issue probably doesn’t reside in any bureaucrat’s hands, but rather in the ballot box.  Right now, pro-Omega legislators narrowly control both houses of the Virginia legislature, but that could change soon.  Voters will get an opportunity to replace Omega's supporters this November, when flipping just four seats—two in the Senate, two in the House of Delegates—could change party control of both houses, change the legislature’s stance from pro-Omega to pro-conservation, and align the legislature with the views of an already pro-conservation governor and natural resources department.

It could happen.

If it doesn’t, the ballot box might still offer a solution in 2020, when the nation will decide whether folks who think like Wilbur Ross should be in charge of our fisheries and other public trust resources, or whether it's time for a change.