Some fisheries problems just don’t go away.
I’ve been working on menhaden issues since
the mid/late 1990s, and I know some folks who’ve been working on them for
longer than that. While we made some
slow, grudging progress, wins were few and far between. The menhaden reduction industry, which for practical
purposes meant the Omega Protein Corporation, which catches the lion’s share of
menhaden on the Atlantic coast, just had too much political influence down in
Virginia, and managed to bog down efforts to modernize the menhaden management
system.
Suddenly, everything changed. As
a recent headline in the Virginia Mercury asked,
“Menhaden regulations have plagued lawmakers for
decades. Why were they able to find a
fix this year?”
The answer to that question was pretty simple: Because they didn’t have a choice.
The Atlantic States Marine Fisheries Commission adopted Amendment
3 to the Interstate Fishery Management Plan for Atlantic Menhaden in 2017. Amendment 3 contained a provision that would cap
the amount of menhaden that Omega could remove from the Chesapeake Bay at
51,000 metric tons, a substantial reduction from the 87,216 metric ton cap that
had been in place before, in order to avoid the possibility of localized depletion, and the adverse
impacts that such depletion would have on the Bay’s predators.
Maryland pushed the reduction fleet out of its section of
Chesapeake Bay a few years ago, so Omega’s entire Chesapeake Bay harvest would
have to be caught in Virginia waters. It
was up to the Virginia legislature to pass a law that would limit such harvest
to 51,000 metric tons.
Omega, understandably, didn’t want that to happen, and the Virginia
legislature refused to adopt the lower Bay cap.
It was just one more act in a seemingly endless drama. As the Virginia Mercury reported,
“Every year, the drama has followed the same lines. Some lawmakers and environmentalists concerned
about the health of the valuable fishery, the only one managed by the
legislature rather than regulators, push to transfer its management to the
Virginia Marine Resources Commission. The industry and its unionized fishermen,
concerned that regulators will cramp their business, push back.”
In the past, the industry had always won.
“It’s been perhaps the state’s dullest political
tug-of-war. But then, this winter, it
ended when Omega Protein, the Reedville-based Canadian company that is the
largest single player in the U.S. menhaden industry, told a Senate panel that
it supported legislation to hand over fishery management to the VMRC.”
Why did things change?
The answer to that lies in federal legislation called the Atlantic Coastal Fisheries
Cooperative Management Act, which granted the ASMFC management authority
over many coastal fisheries, including menhaden.
The Act also gives the ASMFC power to enforce
its authority over states which refuse to conform to the provisions of its
management plans.
The ASMFC does that by making a formal finding that a state is out
of compliance with one or more provisions of a management plan. Once such finding is made, the ASMFC must
notify the United States Secretary of Commerce who, if he agrees with the
finding and makes an independent determination that the provision or provisions
in question is/are necessary for the conservation of the relevant fishery, must
impose a complete moratorium on such fishery in the noncompliant state. The moratorium remains in effect until the state finally complies with the
management plan.
That process played itself out with respect to Virginia’s
menhaden fishery. Last
December, Commerce Secretary Wilbur Ross announced that he was imposing a
moratorium on all menhaden harvest in Virginia’s waters, effective June 17 of
this year, unless Virginia comes into compliance with the ASMFC’s menhaden
management plan before that date.
Faced with that sanction, Omega Protein, along with its
supporters in the Virginia legislature, backed down.
It had no choice, for as the Virginia Mercury noted,
“for most stakeholders, the decisive factor seems to have
been the threat of federal intervention.
After all, it’s one thing for legislators to give up their power to a
regulatory body. It’s quite another to
give it up to Washington.”
Thus, although legislation that transfers menhaden
management authority to the Virginia Marine Resources Commission has not yet
been signed into law, there is very little doubt that will occur in a very
short while.
When it does, the ASMFC will have succeeded in enforcing the
terms of its management plan, but only because Virginia faced
real legal consequences if it didn’t comply.
The irony of the situation is that, while the ASMFC can use
such legal consequences to compel the states to comply with its management
plans, if the ASMFC itself fails to comply with the explicit
terms of one of its own management plans, it faces no consequences at all.
While the thought of the ASMFC ignoring the terms of its own
management plan might seem unlikely to some, we have seen just that scenario
play out not once, but twice, with respect to striped bass.
Amendment 6 to the Interstate
Fishery Management Plan for Atlantic Striped Bass clearly requires that
“If the Management Board determines that the female spawning
stock biomass falls below the target for two consecutive years and the
fishing mortality rate exceeds the target in either of those years, the
Management Board must adjust the striped bass management program
to rebuild the biomass to a level that is at or above the target within [no
more than ten years]. [emphasis added]”
The
benchmark stock assessment released in December 2013 revealed that both of
the requirements specified in that provision—female spawning stock biomass
below target for two consecutive years, and fishing mortality above target in
at least one of those years—had occurred.
In response, despite language stating that the Management Board “must”
act to rebuild the stock, the ASMFC did absolutely nothing to
meet the 10-year rebuilding deadline.
“Management Trigger 2 [Author’s note: Waine misspoke; it was actually Trigger 4] in
Amendment 6 says that you need to rebuild the [spawning stock biomass] back to
its target over a specified timeframe that should not exceed ten years. I think there is sort of a combination of
things happening. The board is acting to
reduce [fishing mortality]. Through that
action we see the projections showing that [spawning stock biomass] will start
increasing towards its target, but we’re uncomfortable with projecting out far
enough to tell you when it will reach its target because the further on the
projections we go the more uncertainty that is involved. Therefore, I think the trend is to get back
towards the target, but we can’t tell you exactly how quickly that will happen.”
If you parse that language carefully, you’ll note that Waine
never addressed Amendment 6's rebuilding requirement in any detail. Instead, he diverted the conversation toward
the fishing mortality reduction that the Management Board did pursue, and the fact that it was difficult to tell
when, pursuant to that reduction, the stock would rebuild, because it would
happen so far in the future.
But Waine never said a word
about what measures could be adopted to rebuild the stock within 10 years, and never explicitly said that there was too much inherent uncertainty to put a rebuilding plan
together (of course, if he had blamed uncertainty for the lack of a rebuilding
plan, he would then have had to explain why federal fisheries managers can deal
with 10-year rebuilding deadlines on a routine basis, or why, if uncertainty
was a problem, it wouldn’t be possible to put a rebuilding plan in place, then
make mid-course corrections, as needed, as the level of uncertainty declined
over time).
But the bottom line was that
the rebuilding issue wasn’t raised again.
Then, in 2019, a
new benchmark stock assessment was released to the Management Board. It found that the striped bass stock was
overfished, which tripped another Amendment 6 management trigger that reads
“If the Management Board determines
that the biomass has fallen below the threshold in any given year, the board
must adjust the striped bass management program to rebuild the biomass to the
target level within [no more than ten years].”
Once again, the Management
Board ignored its clear obligation to rebuild the stock, even though the
current Fishery Management Plan Coordinator, Max Appelman, unlike his predecessor,
honorably discharged his duties, warning the Management Board that
“the clock is sort of ticking, and the
ten year clock began in May when the information [that the stock was
overfished] was presented to the board,”
at the August 2019 Management
Board meeting, and reminded them that
“The ten year timeframe, the clock is
ticking on that yes,”
once again on the same day.
Unfortunately, the Fishery
Management Plan Coordinator can’t force the Management Board to take any action, even if it is required by the management plan, so no action has yet been taken on striped bass rebuilding.
We’re left in a situation
where the ASMFC can compel the states to comply with the provisions of its
management plans, but the public has no way to compel the ASMFC to honor the
language of the same plans.
And if the public can’t even
compel the ASMFC to do what it had already said it would do to protect the health
of fish stocks, it certainly lacks the power to force the ASMFC to do what the
public expects of it: rebuild overfished stocks and then maintain those stocks
at healthy levels, something that, in the 77-year history of the organization,
it has not ever done—even once.
So it’s time to get Congress
involved. We need legislation that will legally
compel the ASMFC to properly protect and conserve the marine resources that it
has been entrusted to manage, and will allow the public to seek judicial
intervention, if it fails to faithfully do that job.
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