Thursday, March 28, 2024

STRIPED BASS ADDENDUM II: MARYLAND HINTS AT NONCOMPLIANCE

Last Tuesday, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board met to review state plans to implement Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

Such plans had been submitted to the ASMFC on or before March 1, in order to allow members of the Atlantic Striped Bass Plan Review Team and Atlantic Striped Bass Technical Committee to review them and determine whether they met the requirements of Addendum II.  While the Plan Review Team generally had few problems with the implementation plans, a few of the state proposals did raise red flags. 

The Plan Review Team listed the outstanding issues in a memo to the Management Board. 

With respect to recreational size limits, bag limits, and seasons, it noted that Pennsylvania had proposed delaying implementation of its new slot size and bag limit until 2025, because

“changing the slot size in the middle of the 2-month April-May season in 2024 would be procedurally burdensome and likely to lead to angler confusion and noncompliance and enforcement issues.”

Also,

“Pennsylvania noted the current (pre-Addendum II) regulation is published in the 2024 Pennsylvania Fishing Summary,”

which anglers consult when determining the relevant regulations.

With respect to the requirement that the racks of any striped bass filleted at sea or at a shoreside location be retained, and that no more than two fillets per rack be in anglers’ possession, the Plan Review Team raised questions about many states’ existing regulations, questioning whether the states’ interpretations of their rules met Addendum II’s requirements.

Finally, addressing what were probably the most serious shortcomings of some of the implementation plans, the Review Team noted that

“Maryland, Virginia, and the Potomac River Fisheries Commission have not implemented the required 7% commercial quota reduction for their Chesapeake Bay commercial fisheries.  Maryland has also not implemented the reduction for their 2024 ocean fishery.  Maryland, Virginia, and PRFC note that due to the timing of the Bay commercial fisheries starting prior to Addendum II approval, and the fact that commercial tags were already distributed, the 7% quota reduction could not be implemented in 2024.  PRFC and Virginia note that their commercial landings in recent years have been below the new Addendum II reduced quota level, so they do not anticipate an overage of the Addendum II quota level in 2024…

“Regarding the payback of potential overages, Maryland and PRFC note that if an overage occurs above the Addendum II quota level in 2024, that overage will be deducted from their 2026 quota.  They note that the 2025 quota will have already been distributed to permit holders before the end of the 2024 fishing year, so the deduction could not occur until 2026.  This is inconsistent with Addendum II, which states:  In the event a state exceeds its allocation, the amount in excess of its annual quota is deducted from the state’s allowable quota in the following year.  In the case of a 2024 overage, the payback should occur in 2025.  Virginia noted any potential 2024 overage payback would occur in 2025.”

With those issues highlighted by the Plan Review Team, the Management Board began its review of the states’ implementation plans.

Maryland chooses not to act in accordance with Addendum II

Perhaps not surprisingly, Maryland’s inaction with respect to required changes in its commercial fisheries drew the first question, with Roy Miller, the Governor’s Appointee from Delaware, noting that even though Virginia did not reduce its Chesapeake Bay commercial quota, it did implement a reduction in its commercial ocean quota, and asking why Maryland could not have done the same.

Pat Geer, the Virginia fisheries manager, followed up by noting that, on average, Virginia commercial fishermen have only landed about 77% of their quota in recent years, and so are expected to stay under Addendum II’s reduced quota in 2024; however, he also remarked that Virginia would be monitoring the 2024 landings, and could close the fishery if an overage appeared likely.

Dennis Abbott, New Hampshire’s Legislative Proxy, then turned the focus back on Maryland, asking whether, given the Board’s discussions last fall and the likelihood that a commercial quota reduction would be adopted for 2024, Maryland didn’t consider acting proactively to reduce its commercial quota in anticipation of the Board doing so at the ASMFC’s Winter Meeting.  He also addressed a second question to Maryland,

“Would you have the ability to close the season to avoid an overage?”

Michael Luisi, Maryland’s fisheries manager, addressed the questions posed by both Mr. Miller and Mr. Abbott.  In response to Mr. Miller, he said that Maryland’s commercial season opened on January 1, well before Addendum II was adopted, that some fishermen held so little quota that they might land it within a single day, and so Maryland intended to allow the harvest of fish pursuant to the quota that existed on the day that the season opened.

His responses to Mr. Abbott were more detailed, as well as more defiant, foreshadowing the uncooperative stance he would take throughout the meeting.  Mr. Luisi noted that there was some discussion within his department about Addendum II quota reductions, but because they did not know the ultimate outcome of the reduction proposal, because the commercial fishery produced only a small percentage of overall fishing mortality, and because the intent of Addendum II was not to manage the commercial fishery, Maryland fishery managers didn’t feel that they were in a position to “guess” what any quota reduction might be.  He said that Maryland lacked the administrative ability to send out a held-back portion of tags later in the year, particularly because some fishermen’s quotas were so small that the later mailing might consist of only a single tag.

And he reminded the Management Board that he had warned them in October what Maryland’s situation would be if Addendum II wasn’t adopted until January 2024.

Maryland’s Luisi then continued his response to Mr. Abbott, saying that while it has in-season harvest records, because of its individual transferrable quota system and December 31 season close,

“We would not close the season in the middle of the season.  Fishermen have the understanding that they have the whole season”

to land their fish.

With that statement, he made it clear that whether or not it had the ability to take the required action, Maryland had little intention to adhere to the explicit requirements of Addendum II.

New York’s Governor’s Appointee, Emerson Hasbrouck, called him out on his comments, saying that he could not support Maryland’s—or the Potomac River Fisheries Commission’s—implementation plans, particularly because they did not provide for paying back any 2024 overages until 2026.  He said that he hadn’t heard Maryland provide any good reason why they couldn’t issue reduced allocations to its commercial fishermen to account for any overage, but that

“They are just not willing to do it.”

Mr. Luisi naturally took objection to that.

At last January’s Management Board meeting, he had tried to delay the commercial quota cuts by a year, complaining that Maryland’s season had already started.  That effort failed, so he began his response to Mr. Hasbrouck with the complaint that

“This all could have been avoided.  We could have done something completely different had the Board considered the administrative burden.”

He then went on to inform the Management Board that Maryland would manage its 2024 commercial fishery to the pre-Addendum II quota, that it won’t have final 2024 commercial landings data until April 2025, and that it will begin distributing commercial striped bass tags for the 2025 season sometime around October 2024.  That time sequence, he argued, means that Maryland can’t pay back 2024 overages until 2026.

He never conceded that there was even a possibility of Maryland amending its current procedures in order to comply with Addendum II’s payback requirements.  Instead, he merely expressed his hope that no payback would occur, and then minimized the impact of any possible overage, arguing that 7% of Maryland’s pre-Addendum II quota, at about 100,000 pounds, would be small when compared to other sources of fishing mortality.  

He again tried to blame the Management Board for Maryland’s unwillingness to conform its actions to the dictates of Addendum II, saying that he hoped that the Board wouldn’t find Maryland out of compliance

“for an administrative burden that didn’t have to be a part of this discussion had a different decision been made in January.”

He refused to consider Maryland’s obligation to conform its actions to the dictates of the management plan.  Everything was couched in terms of what actions Maryland might be willing to take without incurring too much inconvenience.

The difference between what Maryland was able to do, and what it was willing to do, surfaced moments later, after Doug Grout, the Governor’s Appointee from New Hampshire, asked whether it was possible for Maryland (or the Potomac River Fisheries Commission, which claimed to be in a similar position as Maryland, but didn’t openly defy the Management Board) to issue a portion of its commercial striped bass tags—perhaps 80%--prior to the 2025 season, and hold back the rest until the 2025 landings data were finalized.  He noted that other states had managed to accommodate next-year paybacks “for many years.”

Mr. Luisi responded by saying

“There is a way to do anything,”

thus admitting that Maryland could find a way to conform to Addendum II’s requirements, but then added,

“but whether or not it’s worth the challenges for the administration and worth the challenges to our resource”

was a different issue, again underlining the fact that Maryland’s failure to comply was, in the end, a matter of preference, and not of necessity.  He then fell into another line of attack that revealed his continuing bias against the recreational fishery, claiming that everyone was getting concerned about a possible, but “biologically insignificant” commercial overage, while asking

“What’s the accountability on the recreational fishery?”

and arguing—perhaps forgetting about the emergency measures that the Management Board adopted in May 2023, which applied solely to the recreational fishery—that real-time accountability for the recreational fishery would not occur.  

Mr. Luisi declared the measures needed to ensure prompt paybacks for overages “too burdensome” and then declared,

“We are not going to jump over hoops, and we are not going to do it,”

with “it” referring to paying back 2024 overages in 2025.

Mr. Abbott responded by saying that

“There’s a keen awareness of what’s been going on in the striped bass fishery for years now,”

referring to the Management Board’s past (but, fortunately, not current) propensity to let states cut corners and get special exceptions to the management plan’s rules.  He noted that states are expected to comply with the Board’s actions.

A motion takes shape

At that point, the Maryland issue was briefly set aside as the Management Board addressed the other issues raised in the Plan Review Team’s memorandum, including Pennsylvania’s plan to adopt the slot and bag limits for its spring fishery in 2025 and other states’ efforts to clarify that their rules on filleting striped bass at sea were, in fact, in compliance with Addendum II.  But it wasn’t long before Megan Ware, the Maine fisheries manager who chairs the Management Board, called for a motion on the states’ implementation proposals.

Not surprisingly, Maryland’s Luisi was quick to put a motion on the floor, which simply read,

“Move to approve Addendum II state implementation plans as discussed today.”

Such motion was seconded by Stephen Train, Maine’s Governor’s Appointee.

Mr. Luisi tried to soft-sell his motion, saying that Board members had asked some good questions, and that there will inevitably be some issues related to process and administrative workload.  He said that all states made “fair attempts” to implement Addendum II, but there are hurdles, and that if his motion was passed, the Management Board could try to work in the future to allow implementation

“on a timeline that is more amenable to administration.”

In a supporting statement, Mr. Train expressed sympathy for Mr. Luisi, saying that

“I don’t think that what we have is perfect.”

But then he said something interesting, that unintentionally reinforced Mr. Abbott’s most recent comments:

“We are the ASMFC, we are not National Marine Fisheries.  We don’t come down heavy-handed”

but instead give states a chance to take actions that might not be in complete accord with the management plan.

Long-time readers of this blog will recall that I’ve criticized the ASMFC in the past for just such an attitude—for not fully enforcing the terms of its management plans (for example, failing to enforce the requirement to begin a 10-year rebuilding plan after the 2013 stock assessment tripped a management trigger in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which required initiation of such a rebuilding plan)—and I’m more than pleased to report that, in recent years, that attitude seems to have been replaced among most state delegates with one that takes a more rigorous stand on management issues.

Thus, I was pleased to see that Mr. Train’s comments received little support.

Instead, Dr. Michael Armstrong, the Massachusetts fishery manager, rose to make a substitute motion which eventually read (once some minor amendments were made),

“Move to approve Addendum II state implementation plans as discussed today, with the following exceptions:

·        CT, MD, VA, NC, PA: not planning to the two-fillet per legal fish possession limit rule for recreational filleting allowances;

·        PA: not planning to adhere to the May 1 implementation deadline; and

·        MD, PRFC: not planning to adhere to the commercial quota overage payback provision for deductions to occur in the following year.

“These jurisdictions must submit revised implementation plans by April 12, 2024.  The Management Board will review and consider approval of the revised state implementation plans at its May 1, 2024 meeting.”

His motion was seconded by Mr. Hasbrouck.

In his statement supporting the motion, Dr. Armstrong focused on Addendum II’s requirement that states pay back overages in the next year, observing that such requirement was nothing new.  Despite all of Maryland’s claims that it created an unreasonable administrative burden, such payback requirement had actually been a part of the ASMFC’s striped bass management plan since it adopted Amendment 5 to the Interstate Fishery Management Plan for Atlantic Striped Bass in 1995.  Given that, Dr. Armstrong observed,

“At some point we need to follow the rules that we have made.”

Mr. Hasbrouck expanded on his earlier observation, saying that while he sympathized with Maryland’s administrative concerns,

“What I hear is not that Maryland cannot do it, but that they won’t do it, doesn’t want to do it.”

Most of what happened after that was anticlimactic.

The Management Board votes

Connecticut’s fisheries manager, Dr. Justin Davis, made a motion to amend the substitute motion by deleting the first bullet point related to filleting fish, which was seconded by Pennsylvania fisheries manager Kris Kuhn.  Such motion passed easily, 10 in favor, 3 opposed, 1 abstention, and 1 null vote, without any need for discussion.

Mr. Kuhn then moved to amend the substitute motion by deleting the bullet point relating to Pennsylvania’s plan to delay adopting new size and bag limits for its April/May fishery until 2025.  Such motion was seconded by New York fisheries manager Martin Gary.

Mr. Kuhn argued that the spring fishery provides many Pennsylvania anglers with their only opportunity to catch a striped bass, and that the state would face a substantial administrative burden in implementing the new regulations by May 1, when they would only impact the fishery for two weeks or so, and opined that the impact of the delay would not be biologically significant, but Dr. Armstrong responded with the comment that

“’Burdensome’ is not a reason not to put in regulations, or try your darndest to,”

and noted that Massachusetts frequently changes its regulations, even though it supports a large fishery.

In the end, Mr, Kuhn’s motion failed on a vote of 5 in favor, 7 against, 1 abstention, and 2 null votes.

That vote, which expressed the Management Board’s reluctance to allow even a minor exception to Addendum II’s requirements, was a good indication that Maryland would not get its way on the payback issue.  Thus, instead of trying to amend the substitute motion, Mr. Luisi merely engaged in a last bit of rhetoric. He said,

“We have lost our way if we are at the point in time right now, [where] within a year’s time”

the Management Board took emergency action and adopted Addendum II, and then exhibited

“the complete lack of caring as to the burden…by continuing to press the issue on things that are not biologically significant.”

He objected to Mr. Hasbrouck’s comment that Maryland “doesn’t want to” comply with every detail of Addendum II, even though his earlier comments effectively admitted that such was the case.  He commented that

“The Board just seems lost in this detail,”

as if timely paybacks of commercial overages, something that Maryland had been obligated to do for nearly three decades, was a new and insignificant matter, and baldly told the Board that Maryland’s revised implementation plan will probably not address their concerns.  He observed that a new stock assessment update was coming out, and that the Board may have to begin the process of revising management measures all over again.

When his soliloquy was done, the Management Board approved the substitute motion on a vote of 8 in favor, 5 opposed, 1 abstaining, and 1 null vote.  The substitute motion then became the main motion, and was approved on a vote of 11 in favor (ME, NH, MA, RI, CT, NY, NJ, DE, DC, VA and NC), 3 opposed (PA, MD, and the PRFC) and the National Marine Fisheries Service abstaining.

What happens next?

The big question is what comes next.

For most states, that answer is simple.  They will comply with Addendum II.

In the case of Maryland, though, things may be different, for immediately after the final vote, Mr. Luisi asked when Maryland might be found out of compliance with the Addendum.  He asked whether that finding might occur on the May 1 implementation date, if the state’s revised implementation plan isn’t approved, or only after any overage that might occur is not paid back in 2025.

Robert Beal, the ASMFC’s Executive Director, noted that whether—and when—Maryland might be found out of compliance is up to the Management Board, which decides whether to refer a noncompliance finding to the Secretaries of Commerce and the Interior for further action.  Mr. Beal also noted that

“There’s more conversations to be had before we go down the road to noncompliance.”

But given the defiant stance that Maryland has taken so far, and its seeming refusal to comply with Addendum II’s payback requirements, even if such conversations are held, there is little reason to believe that they will do too much good.


No comments:

Post a Comment