A little over a week ago, my marina gave me a call, and
asked when I planned to put my boat in the water. I thought for a second, and ended up saying
the 10th or 15th of April, even though I hadn’t given the
launch date all that much thought; while I always look forward to getting back
on the water, the simple truth is that I’m an angler, not a “boater,” and never
saw too much point to setting foot on a vessel unless there was some sort of
fish around.
And right now, that’s just not the case.
The fact that I’m writing on St. Patrick’s Day adds a little
more poignancy to that fact. When I
first moved out to Long Island, March 17 was the unofficial start of the winter
flounder season. Party boats sailed with
full loads, and private boats swarmed in bay shallows, where the sun shining
through thin water warmed dark mud bottoms, and the flatfish began to stir.
Back then, New York’s anglers took millions of winter
flounder home every year. The
fishing happened to peak in 1984, my first year fishing on Great South Bay,
when nearly 14.5 million winter flounder were landed by the state’s
recreational fishermen. But soon after
that, New York’s recreational flounder fishery began to tank. By 1994—just
ten years after the peak—recreational landings in the state’s waters had fallen
by more than 95%, to about 667,000 fish, and things just kept getting worse
from there.
By 2010, landings had fallen so low that samplers for theNational Marine Fisheries Service’s Marine Recreational Infoprmation Program, usedto estimate recreational effort, catch, and landings, could no longer find
enough fishermen who had caught winter flounder, and so could no longer produce
even marginally reliable estimates of the number of fish caught. The
point estimate for 2023 was a mere 535 fish, but there was so much uncertainty in
the data that the actual number might have fallen anywhere between 0 and 1,680—at
any rate, a tragically small number when compared to the millions of fish that were
once yielded by a healthy flounder stock.
Such numbers make it clear that, by any realistic measure,
the Southern New England/Mid-Atlantic winter flounder stock is severely
depleted, and barely even a wisp of what it once was.
Which will let you understand why I found myself dismayed
when a couple of New York’s party boat captains recently began seeking an increase in
landings.
Apparently that’s not good enough for,
as described in the Bulletin of New York’s Marine Resources Advisory Council,
at the Council’s January 9, 2024 meeting,
“Marc DeJung, who runs a fishing head boat out of Pt. Jefferson
requests that the DEC begin to allow his customers to keep the occasional
flounder that they may catch while fishing during June, July, August, and
September. It’s a by-catch fishery, so
let people keep their by-catch…
“Mr. Jamie Quarisemo, Miss Montauk, NY is thinking along the
same lines with just a little difference.
He would like to see something open up for flounder—offshore. He is referring to Federal waters and not
state waters and since everyone now uses GPS, there shouldn’t be a question
with law enforcement as to what waters they were fishing in. He thinks they should follow federal
regulations as well.”
Listening to such comments, one begins to wonder whether
there is any fish out there that these folks might not kill, or whether their
mindset is such that returning a fish to the water instead of tossing it into a
pail causes them real distress.
After all, the inshore party boat operator didn’t
seem to be planning to sail on directed winter flounder trips. Instead, should one of his customers happened to catch, along
with the 3 black sea bass, 4 summer flounder, and 30 scup that such customer
could already kill and take home, a winter flounder, the
captain wanted such customer to be able to kill it, regardless of the poor
health of the stock, instead of having to return it, alive, to the water.
It’s not that keeping one of the maybe half-dozen or dozen
flounder the boat's customers might catch would put even a
single additional dollar in the boat owner’s pockets. It’s just that the idea of letting such fish live seems to offend the party boat captain’s values.
I have to admit that when I heard the initial request, I
immediately thought of someone I know down in Galveston, Texas. He runs a charter boat for much of the year,
but also owns some commercial red snapper quota that he can use when the recreational season is closed. In addition to his fishing
operation, the same individual owns one of the largest waterfowl hunting operations
in the State of Texas. Somehow, I can’t
see him going to the Fish and Wildlife folks and telling them,
“Every now and then, we get a whooping crane flying over the
decoys. I’m not planning to offer whooping
crane hunts, but just in case one just happens to come flying by, my folks
ought to be able to shoot it.”
No, I believe—I know—he has a lot more respect for native
wildlife than that. Maybe more respect than the folks who are looking to kill winter flounder
And no, I’m not trying to argue that flounder are scarce as
whooping cranes, because that’s just not true, although it’s interesting to
stop and think about the sort of thing that might, in theory, happen if someone tried to get Southern New England/Mid-Atlantic winter flounder listed under
the Endangered
Species Act.
It's even more interesting to think about what might happen if such a listing effort succeeded.
The Endangered Species Act defines a species as “endangered” if such species
“is in danger of extinction throughout all or a significant
part of its range…’
and deems a species “threatened” if it
“is likely to become an endangered species within the
foreseeable future throughout all or a significant part of its range.”
Taking that language on its face, it would seem to exclude
winter flounder from either definition. While
the fish may not be as abundant as they once were, when one considers all of
the flounder assigned to the Southern New England/Mid-Atlantic, Gulf of Maine,
and Georges Bank stocks, there seems little real danger of the species
becoming either extinct or endangered in the foreseeable future.
However,
the Act defines “species” to include
“any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or wildlife which
interbreeds when mature. [emphasis added]”
And with that definition, it is not necessarily
relevant that there might be a sufficient abundance of winter flounder in parts
of the Gulf of Maine, or perhaps on Georges Bank, to make extinction unlikely
in the foreseeable future. The question instead
becomes whether there is a distinct population segment of flounder, perhaps somewhere in Long Island Sound, that is at severe
risk.
“Three elements are considered in a decision regarding the
status of a possible [distinct population segment] as endangered or threatened
under the Act. These are applied
similarly for addition to the lists of endangered and threatened wildlife and
plants, reclassification, and removal from the lists.
“1. Discreteness of the population segment in relation to the
remainder of the species to which it belongs,
“2. The significance of the population segment to the species
to which it belongs, and
“3. The population segment’s conservation status in relation
to the Act’s standards for listing…
“Discreteness:
A population segment of a vertebrate species may be considered discrete
if it satisfies either one of the following conditions:
“1. It is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or behavioral
factors. Quantitative measures of
genetic or morphological discontinuity may provide evidence of this separation.
“2. It is delineated by international government boundaries…
“Significance: If a
population segment is considered discrete under one or more of the above
conditions, its biological and ecological significance will then be considered in
light of Congressional guidance…that the authority to list DPS’s be used ‘…sparingly’
while encouraging the conservation of genetic diversity. In carrying out this examination, the Service
will consider available scientific evidence of the discrete population segment’s
importance to the taxon to which it belongs, but is not limited to the
following:
“1. Persistence of the discrete population segment in an
ecological setting unusual or unique for the taxon,
“2. Evidence that loss of the discrete population segment would
result in a significant gap in the range of a taxon,
“3. Evidence that the discrete population segment represents
the only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range, or
“4. Evidence that the discrete population segment differs
markedly from other populations of the species in its genetic characteristics.
“Status: If a
population segment is discrete and significant (i.e., it is a discrete
population segment) its evaluation for endangered or threatened status will be
based on the Act’s definitions of those terms and a review of the factors
enumerated in section 4(a). It may be
appropriate to assign different classifications to different DPS’s of the same
vertebrate taxon.”
Could there be one or more distinct population segments of
winter flounder swimming somewhere within New York’s waters?
A
species stock assessment produced by the State of New York in 2014 noted that
“In New York, two distinct behavioral groups have been
identified: an inshore contingent that is present in coastal bays year-round,
and an offshore contingent of larger individuals that travels inshore during
the winter to spawn...
“Previous research on [Long Island] proposes the existence of
multiple distinct behavioral groups with observations indicating the presence
of resident and migratory individuals termed ‘bay fish” and ‘offshore fish,’
respectively. [One researcher] estimated
morphometric differences and variation in age and growth across four south
shore bays of [Long Island]. It is not
yet clear if these contingents are genetically differentiated… [internal references omitted]”
Another
scientific paper based on research in New York’s Shinnecock Bay noted that
“If resident winter flounder represent a separate genetic
population, the seasonally more abundant dispersive population may mask a
long-term decline in resident winter flounder that once supported Long Island
fisheries and may eventually lead to extirpation of
residents. [emphasis added]”
Thus, there is at least the possibility that distinct
population segments of winter flounder exist in New York waters, or elsewhere
on the coast.
But if they exist, would any of those
population segments qualify for an ESA listing?
Again, that’s impossible to know unless and until a petition
is submitted to the National Marine Fisheries Service. However, the
law provides that
“The Secretary shall…determine whether any species is an
endangered species or a threatened species because of any of the following
factors: the present or threatened destruction, modification, or curtailment of
its habitat or range; overutilization for commercial, recreational, scientific,
or educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or other natural or manmade factors affecting its
continued existence. [formatting and internal numbering omitted]”
Taking a look at that list, it seems that nearly all of the
listing criteria might apply to winter flounder in one way or another. Certainly, filling in coastal marshes, dredging
in estuaries and bays, and other alterations of inshore waters have impacted
flounder habitat, while NMFS’ data
shows that the Southern New England/Mid-Atlantic stock was overfished for many years. Studies suggest that predation has had a
major impact on the recruitment of new fish into the population. And regulators, whether the New England
Fishery Management Council or the Atlantic States Marine Fisheries Commission’s
Winter Flounder Management Board have never managed to impose regulations
stringent enough to allow the population to rebuild.
So, again, there is at least an arguable basis for considering
a discrete population segment of winter flounder for an Endangered Species Act
listing.
And if that listing ever happened, much on the coast would change, because it would then be illegal to "take any such species within the United States or the territorial waters of the United States."
So dredging a channel or a boat basin where flounder might be found, or fishing for scup or sea bass or anything else that requires a bait that flounder might eat, might all be significantly restricted, or even prohibited, if they result in too many incidental flounder "takes."
It could become a significant burden, but things should never get that far.
About a decade ago, the New York State Department of Environmental Conservation, responding to an ASMFC action, proposed regulations that would have quintupled the length of the recreational winter flounder season, to something like what the party boat operators recently suggested to the Marine Resources Advisory Council.
The public response to such proposal was
overwhelmingly negative, with comments opposing the proposal coming in not only
from anglers, but from national conservation groups. At least one of those groups, the Center for Biological Diversity, frequently files petitions under the Endangered Species Act, and resorts to the courts when such petitions are denied.
That didn't happen the last time winter flounder regulations were proposed, perhaps because the DEC, in the face of such opposition, wisely decided to withdraw the proposed regulatory change.
There is little doubt that, if the matter comes before the
Marine Resources Advisory Council once again, the Council will vote for an
expanded winter flounder fishing season, for the makeup of the Council, which is dominated by the recreational and
commercial fishing industries, virtually assures that conservation concerns
will ultimately be ignored. And there is
a very good chance that if the DEC decided to do what the party boat operators
ask, and again propose allowing anglers to kill more winter flounder, the same
sort of opposition would arise once again.
We can at least hope that will be the case.
Because, while it’s difficult to decide just when it’s time
to stop exploiting a badly depleted stock, it’s easy to say that when fish get
so scarce that landings fall to less than 0.004%--that’s less than four
one-thousandths of one percent—of what they were in the not-so-distant
past, then the time to stop killing passed a very long time ago.
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