OMEGA, MENHADEN, AND THE CHESAPEAKE BAY

 

Last week, the Atlantic States Marine Fisheries Commission held its Summer Meeting, and again addressed the issue of Atlantic menhaden.

I didn’t listen in to that part of the meeting, which was largely concerned with new approaches to allocating the menhaden resource.  In this blog, and in my general approach to fisheries issues, I tend to focus on conservation, not allocation.  The reason for that is quite simple:  The health of marine ecosystems—warming waters and similar environmental concerns aside—depends largely on limiting the number of fish and other animals killed by fishing activities.  Who gets to do most of the killing isn’t particular relevant to the outcome.

That notion sometimes rubs folks the wrong way.  

I get a bit of flak from the “gamefish” proponents, particularly with respect to striped bass, who constantly argue that the road to conserving such fish begins with eliminating the commercial fishery, even though, over the last five years (and well before that, as well) somewhere between 85% and 90% of all striped bass fishingmortality was caused by the recreational sector.

I also have occasional run-ins with those who see Omega Protein, a Virginia-based, industrial-scale menhaden harvester now owned by Cooke, Inc., a Canadian conglomerate focused on the aquaculture industry, as a sort of sea-devil incarnate, that threatens not only the menhaden stock, but every creature in the sea that includes menhaden in its regular diet.  

Yet, when assessed on a coastwide basis, the Atlantic menhaden stock is in fairly good shape, neither overfished nor experiencing overfishing, and whether the bulk of menhaden landings are generated by the few big purse seiners that supply fish to Omega, or by scores, perhaps hundreds, of trap fishermen, haul seiners, gill netters, and folks tossing cast nets makes not one iota of difference to the health of the stock, so long as the overall kill is kept at sustainable levels. 

Thus, I can’t get very excited about meetings that revolve around taking fish away from—or giving more fish to—Virginia, or allocating such fish between Omega’s so-called “reduction fleet” and everyone else. 

Keep enough menhaden in the water, regardless of who catches the rest, and both predators and prey will come out OK.

At the same time, my feelings about allocation shouldn’t be confused with my feelings toward Omega Protein, which are quite a bit less benign.  While I have no animus toward the company on the management level, at least so long as Virginia stays within its annual quota, on a personal level, I find the company to exhibit the sort of corporate arrogance that I too often observed, and came to despise, in the years that I worked on Wall Street.  Omega’s interests and the public interest often collide, as we’ve seen more than once this season in the Chesapeake Bay.

When such collisions arise, Omega has little problem trying to gaslight the public, a truth recently demonstrated in a press release issued by the Menhaden Fisheries Coalition, an organization which Omega dominates (a map provided on the Coalition’s website, titled “Our Coalition Members,” pinpoints the locations of eight coalition facilities; four of those facilities belong to Omega, while a fifth belongs to Ocean Harvesters, the trade name for Alpha VesselCo LLC, a Mississippi corporation created solely to own and operate the fishing vessels formerly owned by Omega, since Omega’s acquisition by Cooke, a Canadian company, rendered Omega unable to own U.S. registered vessels itself) stated, in response to last week’s meeting, that

“The latest Atlantic menhaden stock assessment accepted today by the Atlantic States Marine Fisheries Commission (ASMFC) confirms once again that Atlantic menhaden is healthy and not overfished, and that overfishing is not occurring.  Significantly, this assessment was completed using new ecological reference points, standards that account for the needs of predator species when determining menhaden’s sustainable status…

“Two years ago, the consideration and adoption of these ecological reference points were publicly praised by numerous conservation and sportfishing groups…”

So far, so good.  That part of the release was completely true.  But then the gaslighting begins.

“Despite this scientific finding, recreational special interests are continuing a campaign to end the menhaden fishery in the Chesapeake Bay.

“Keep America Fishing, a project of the American Sportfishing Association, accuses the fishery of ‘[depleting] a critical striped bass food source,’ calls menhaden fishing ‘unsustainable,’ and together with the Theodore Roosevelt Conservation Partnership, calls on supporters to sign a petition urging Virginia Governor Glenn Youngkin to ‘move Omega Protein boats out of the Bay until science demonstrates that industrial menhaden fishing can be done without negatively affecting the broader bay ecosystem.’

“These statements are not consistent with the latest scientific findings on either menhaden or Atlantic striped bass reviewed and accepted by the ASMFC.  According to the ASMFC, ‘the last striped bass stock assessment found the stock was overfished and that overfishing was occurring.’

“There is no evidence that a lack of menhaden is affecting striped bass populations, but there is evidence that recreational over-harvesting of striped bass is harming the species.  If recreational anglers are concerned about the striped bass stock, they should stop overfishing rather than try to blame the results of their own actions on another fishery…”

By conflating three very different issues—the coastwide health of the Atlantic menhaden stock, the impacts of industrial level menhaden harvest within the confines of the Chesapeake Bay, and the current status of the striped bass population, the press release weaves a deceiving web designed to protect Omega’s interests while distorting the public’s understanding of what is really going on.

To begin, the fact that the coastwide menhaden population is deemed to be healthy does not mean that an industrial menhaden fishery can be maintained in the Chesapeake Bay.  Even if some level of purse seining can be biologically justified, it is possible that the current cap on Bay harvest, 51,000 metric tons (a cap that Omega arrogantly chose to exceed, in clear defiance of the management plan, in 2019), is impermissibly high.

Right now, we just don’t know whether the Bay’s reduction fishery is sustainable.  Scientists have come before the Management Board, to describe the different sorts of analyses that they might perform and the data that they would require to perform them, in order to address that issue.  The biologists’ needs are extensive and complex, and no definitive research has been completed which suggests that removing large quantities of menhaden from the Bay is OK; there has also been no definitive study suggesting that such removals are harmful.

Thus, the Menhaden Fisheries Coalition is misrepresenting the truth when it claims that efforts to end Omega’s menhaden reduction fishery in the Chesapeake Bay “are not consistent with the latest scientific findings on…menhaden…reviewed and accepted by the ASMFC,” because it’s impossible to be inconsistent with scientific findings that have not yet been made.

Again, the Coalition release seeks to deceive.

Worse, it is hypocritically accusing the conservation and sportfishing groups of striking a position contrary to the science, at the same time that its own position—that removing 51,000 metric tons of menhaden from the Chesapeake does no harm to the Bay ecosystem—is equally void of any definitive scientific support. 

At least the conservation and sportfishing groups’ request to Gov. Youngkin, that he “move Omega Protein boats out of the Bay until science demonstrates that industrial menhaden fishing can be done without negatively affecting the broader bay ecosystem, [emphasis added]” admits to the possibility that the science may support the reduction fleet, while the Coalition completely discounts the chance that the conservation groups might be right.

Despite the Coalition's protestations, the chance that the reduction fishery might be harming the Bay can’t be dismissed out of hand.  The various conservation and angling groups, in asking that the Bay fisheryt be closed, are simply calling for a precautionary management approach; given the importance of menhaden as a forage fish, not only for other fishes, but for birds and marine mammals as well, it might well make sense to shut down the Bay reduction fishery unless and until it can be proven benign.

Given the economic benefits provided by a healthy Chesapeake Bay, it also wouldn’t be unreasonable to place the burden of proof on Omega, and require it to cease fishing in the Chesapeake Bay unless and until it can provide peer-reviewed research demonstrating that its reduction fleet does no harm.

But instead of affirmatively demonstrating that the reduction fishery is benign, the Coalition instead tries to deflect attention from Omega’s fishing activities, by bringing up anglers’ impacts on the overfished striped bass stock.  That is a classic example of misdirection, akin to a magician drawing your attention to his right hand, while he performs an illusion with his left.  For any harm that fishermen—both recreational and commercial—may have done to striped bass would not justify any harm that Omega might have done to the Chesapeake Bay.

Of course, there are all sorts of harm, and not all of it arises out of Omega’s potential impact on the food web.

A couple of weeks ago, I wrote about an incident in the Chesapeake Bay, when a boat from Ocean Harvesters killed a bunch of red drum as bycatch, and caused large numbers of menhaden and drum to wash ashore on a Virginia beach.  In that essay, I took Omega’s estimate of “less than 1%” of its catch constituting bycatch, and demonstrated that even that seemingly small level of dead discards can result in more fish being killed and wasted than are intentionally caught in some of Virginia’s most important directed commercial fisheries.

And, of course, we have to take that 1% number on faith, as fishery observers aren’t required on the purse seine boats, so there is no objective documentation of what such boats actually kill.

There’s also the problem of the just plain stink from fish lost from torn or partially opened nets, that wash up on the shore and render it an unpleasant place for people to be.  According to website WAVY.com, Omega admitted to a net tear that occurred on July 5 of this year, which resulted in

“Rotting fish [washing] up on their otherwise pristine shore, not once, but twice in the past week, [making] residents and vacationers on the Eastern Shore…understandably upset.

“The out-of-the-way Silver Beach community of long-time families and vacation cottages sits in a target-rich environment for Omega Protein and its fishing operation Ocean Harvesters that run menhaden boats out of Reedville.

“Statements from Omega and the Virginia Marine Resources Commission confirmed that a menhaden boat had a torn net that resulted in ‘several thousand fish’ eventually washing ashore…

“[The property owners are] dealing with the odor, the ugliness and the danger of the rotting fish.  They say it started over the holiday weekend.

“’Many neighbors spent their holiday weekend—rather than sitting on the beach that was too stinky to sit on the beach, or swimming—with shovels and buckets loading them with dead fish,’ said resident Debbie Campbell.”

Omega, probably to no one’s surprise, denied being responsible for any fish that washed up prior to July 5, although it seemingly offered no alternative explanation of where industrial quantities of floating, rotting dead menhaden might have come from.  Although it did contribute substantial resources to the cleanup, as far as I can determine, it made no effort to compensate Silver Beach residents for any loss of enjoyment suffered when the stinking mass of menhaden washed ashore.

Three weeks later, when the red drum bycatch occurred, the resulting fish kill caused Virginia to close a state beach for a few days, while a cleanup took place, denying the public access to that beach during the height of a midsummer heat wave.

Again, while Omega performed much of the cleanup, it did nothing to compensate the state, beachgoers, or adjacent businesses for any losses that they may have incurred as a result of the cleanup-related closure.

Last September, in two closely-spaced incidents, Omega/Ocean Harvesters spilled about 400,000 menhaden off Hampton Roads, where rafts of rotting fish again put local beaches, and local beachgoers, at risk.

I could sympathize with any person, and any lawmaker, who believed that the disruption caused by such incidents alone, regardless of their biological implications, and who wanted to push Omega out of the Bay and away from the coast, just to abate such continuing nuisance.

And "nuisance" may be the key word, when used in a legal sense.

I’m not a Virginia lawyer, but I do know that Virginia’s civil law allows citizens to recover for “private nuisance.”  Courts have found

“When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gasses, the operation of such business is a nuisance. The tern ‘nuisance includes everything that endangers life or health,’ or obstructs the reasonable and comfortable use of the property.  [emphasis added, internal references omitted]”

A fishing business that operates in water so shallow that its nets sometimes snag on the bottom, tear, and release thousands of menhaden to wash up and befoul people’s bayfront properties might well fall under such definition.

Virginia law also recognizes the concept of “public nuisance,” which applies when not just a handful of landowners, but the public as a whole, is endangered or otherwise negatively impacted by someone’s actions.  Once again, it’s worth asking whether fishing in shallow waters, knowing that you might end up spilling thousands of fish, actually causing such spill and, as a result, temporarily denying the public access to public facilities might be considered a public nuisance.

In the end, we honestly don’t know whether there are biological reasons for pushing Omega/Ocean Harvesters out of the Chesapeake Bay; until we do, it wouldn’t be unreasonable, from a resource conservation standpoint, to invoke the precautionary principle and prevent large-scale purse seining until it is proven benign.

But even if the biological case isn’t made, one can argue that, just as zoning laws generally prevent someone from starting a pig farm in the middle of a suburban housing development, Virginia could reasonably prohibit activities likely to produce fish kills and bycatch in inland waterways where people live and engage in water-related recreation.  There is plenty of room for such fishing activities out in the open sea.

And if the state doesn’t take the action needed to rein in fish kills within the Bay, there is always the chance that private citizens might consult a lawyer, go to court, and perhaps find their own way to discourage industrial fisheries from operating in places where they don’t belong.