ENFORCEMENT UNDER FIRE

A few days ago, I stopped down at a local marina and, as often happens, started talking about fish.

This time, the conversation kicked off when one of the guys said “It looks bad for striped bass.”  We exchanged some technical babble about benchmark stock assessments and the young-of-the-year trends, and then he noted “But what’s really bad is the poaching.”

He went on to talk about supposedly “recreational” folks going out, coming back with an illegal load of stripers that they sell to local markets and restaurants. 

From that point, the conversation broadened to include the folks who killed too many school bluefin, then sold them illegally to the same sort of places, the wealthy folks with the 50-foot battlewagons who come in from the canyons with 40-pound yellowfin that they “need” to market for $1 per pound and, perhaps worst of all, the live-fish poachers that have decimated our blackfish (you might call them “tautog”) stocks.

And what got the folks down at the dock angrier than anything else was that on the rare occasions that someone actually got caught, the fines were completely disproportionate to the crime, amounting to a mere slap on the wrist.

Someone said that fines should be punitive. 

“Make the first illegal fish $500, $1,000 for two, and just keep going until it starts getting really expensive.  And take the boat, too.  After it happens a couple of times, people will start thinking that it’s not worth the risk of losing a $300,000 boat to sell $300 of fish.”

At that point, I interjected that, as nice as such penalties would be, the trend is headed in the opposite direction.  In another sad example of the inmates running the asylum, the folks who break our fisheries laws now have now taken control of the debate, and have fisheries enforcement folks on the defensive.

At both the federal and state level, the folks charged with protecting our natural resources are having to justify fining poachers and making fishermen to play by the rules, while everyone else stands around ignoring the fact that the folks righteously criticizing law enforcement them stand on the wrong side of the law themselves.

It started up in New England, as a lot of the bad things in fisheries do, when a volatile combination of fishermen who were hostile to, and often violated, federal fisheries regulations faced off against federal law enforcement officers who aggressively pursued those violators.  A tense situation exploded into public controversy after agents from the National Marine Fisheries Service raided the Gloucester Seafood Display Auction. 

The agents were seeking evidence that the Auction was dealing in illegally-caught cod, and served a warrant demanding possession of its business records.

As noted in a 2011 article entitled, “The Gloucester Fish War,” which appeared in Bloomberg Businessweek magazine,  

“All day the agents checked in with their boss, Andy Cohen, the man responsible for policing NOAA’s northeastern fisheries. Cohen was at a fish farming conference in Connecticut, but even from a distance he sensed that things might not work out the way he had hoped. Several local politicians had shown up at the auction house. The Ciullas’ friends were bringing the family sandwiches. The Gloucester mayor sent a veteran police detective to watch over the feds. A representative from Democratic U.S. Representative John Tierney’s office had stopped by for half an hour.

Cohen knew that fishing was the business of Gloucester, but the next five years would reveal just how powerful the industry could be. The battle between Cohen and Ciulla had begun many years earlier and would end this past summer with NOAA’s enforcement powers severely compromised and with Cohen out of a job. Starting that day in Gloucester, much would be revealed about the balance between the world’s fisheries and the businesses that harvest them. ‘I don’t think the fishing industry is ever going to be the same,’ says Cohen.”

The politics of the situation, along with some overly-aggressive tactics on the part of the enforcement agents, quickly overshadowed the fact that members of the Gloucester fishing community often opted to break the law.

As the Buisnessweek story reported,

“The Gloucester community had its share of habitual offenders, but the low likelihood of getting caught made it more tempting for otherwise honest fishermen struggling to profit from depleted stocks. ‘There’s a fine line when it comes to breaking the law,’ says Jack Lakeman, whose family has owned and fished from dozens of boats over the years. ‘You’re trying to make a living.’”

An academic paper entitled “Rational noncompliance and the liquidation of Northeast groundfish resources,” published in 2009 by Dennis M. King of the University of Maryland and John C. Sutinen of the University of Rhode Island, stated that

“The results of a 2007 survey of fishers, managers, scientists and enforcement officials indicate that noncompliance is a significant problem in the Northeast multispecies groundfish (NEGF) fishery, as it has been for at least 20 years.  The percent of total harvest estimated to be taken illegally is 12-24%…

“The deterrence effect of the existing enforcement system in the NEGF fishery is weak because economic gains from violating fishing regulations are nearly 5 times the economic value of expected penalties.  For example, by fishing illegally a midsize trawler in the NEGF fishery is estimated to increase expected earnings per trip by $5,500.  Fishing violations have a 32.5% probability of being detected, and enforcement data show that detected violations have a 33.1% probability of being prosecuted and resulting in a penalty.  The average penalty assessed for a violation is $20,455 and the settlement amount averages 53% of the assessed penalty.  The expected cost of a violation, therefore, is $1,166.  When compared to the illegal gain, the economic incentive not to comply is $4,334 per trip.

“…normative factors favoring compliance in the NEGF fishery are weak because many fishers believe recent fishery management decisions were not justified and that planned stock rebuilding targets and schedules are arbitrary and unfair.  Until this situation changes, more enforcement and more certain and meaningful penalties will be needed to improve compliance.  Fishing restrictions will need to be tightened to achieve new legally mandated stock rebuilding targets.  This will increase economic incentives for noncompliance in the fishery and require even more enforcement and more significant penalties to achieve adequate compliance rates.  [emphasis added]”

People might think that such a rational analysis, made by qualified and disinterested persons, should have had a significant influence on policymakers.  

However, anyone believing that would merely be demonstrating a profound ignorance of the fisheries arena, where politics, emotion and well-motivated greed will usually trump science, sound policy and reason.

In the real world, the Secretary of Commerce felt politically obligated to appoint a “Special Master,” in the form of a retired federal judge, to look into the fishermen’s claims of overly aggressive enforcement efforts.  From all reports, such Special Master did an admirable job of digging into the allegations and interviewing witnesses, and he did find situations where search warrants may have been faulty and agents were truly overzealous.

Unfortunately, he seemed to lack a true understanding of the fishery described in King and Sutinen’s paper, and instead was clearly sympathetic to the fishermen, saying in his Report and Recommendation of the Special Master Concerning NOAA Enforcement Action of Certain Designated Cases

“[T]here is a siege mentality throughout the fishing industry.  Fishermen and fish dealers believe they are treated like criminals.  It is an ‘us against them’ mentality.  The regulations are complex, complicated, constantly changing, and in some cases, contradictory.  Fishermen are paranoid every time that they come ashore to offload their catch that they will be met at the dock by a Special Agent who will look for and find a violation of some obscure or even well known regulation.  They feel that the offloading of their catch is fraught with peril…

“The regulators have recently suffered a similar plight as their past actions in enforcing the fishing regulations are under public attack.  The Special Agents and Enforcement Attorneys feel that they are now under siege because in their minds they are being punished for merely doing their job.  However, as the pendulum of public opinion swings away from them to the fishermen and fish dealers, they should recognize that in some cases, their past actions may have precipitated their current plight…”

As a result of his investigation, the Special Master rebated or reduced a number of the penalties previously imposed, and seemed to side with some folks who clearly and willfully violated the law.

One example of that occurred right here in New York, which is described in the Report as follows

“A Coast Guard officer noticed a false bulkhead made of foam in the aft part of the fish hold.  Mr. Kokell stated that there were fuel tanks behind the bulkhead.  Further inspection of the area revealed several boxes of summer flounder.  There were a total of seventeen (17) boxes, of which two (2) contained monkfish and fifteen (15) contained summer flounder.  When asked how long he had had the compartment, Mr. Kokell could not provide an exact date, but he stated that he had made no more than three (3) or four (4) trips with that compartment…

“Mr. Kokell admitted that he knew that the summer flounder season had ended.  Finally, Mr. Kokell told the agents to ‘take his boat because he refuses to provide any additional information regarding his previous illegal actions.’”

The fisherman eventually settled for a $65,000 fine and a 6.5-month suspension of his federal fishing permits.  However, after three years, he only paid about half of the fine; NOAA ultimately wrote of the remaining $30,000 of the penalty.  Freed from that financial burden and with his fishing permits restored, the fisherman then had the temerity to complain to the Special Master that he was not being allowed to participate in the Research Set-Aside Program!

(Readers of this blog may recall that the Mid-Atlantic Fishery Management Council suspended the Research Set-Aside Program last August after some other fishermen disguised hundreds of thousands of pounds of illegal summer flounder as RSA landings, noting

”One of the chief concerns about the RSA program is that its current design makes it vulnerable to abuse through under-reporting and non-reporting of catch. Two recent investigations in New York by NOAA’s Office of Law Enforcement revealed that significant quantities of summer flounder were being taken illegally under the cover of quota acquired through the RSA program.”)

The fallout of the Special Master’s report echoed far from Gloucester.  Long Island, New York based Newsday reported that, after the Commerce Department declined to review additional incidents of claimed enforcement abuse,

“Fishermen, wholesalers and U.S. Sen. Charles Schumer urged Locke to reconsider his decision, saying excessive enforcement and fines over more than a decade devastated lives and drove some fishermen off the water.

“Bonnie Brady, executive director of the Long Island Commercial Fishing Association, said Locke's decision denies local fishermen ‘closure.’

"’You need to look back at the past in order to move forward,’ she said, adding that denying them right to review bolsters the perception that the system is corrupt. ‘Bottom line: The fix is in.’"

But if you follow up on some of the comments made in that Newsday article, you come to realize that it’s not “the system” that needs some attention—or who “the fix” really favors.

For Newsday went on to report the reactions of people in the fishing business to the Commerce Department’s decision.

One, Mark Agger, President of Agger Fish Company, said

"[The National Marine Fisheries Service is] refusing to take responsibility for their actions"

That seems more than a little ironic given that after Agger Fish Company was fined $750,000 in 2006 for trading in 300,000 pounds of shark meat without a permit and illegally possessing fins from seven different protected species, Agger reportedly

“called the case trivial and not worthy of a reply.”

When contacted by Newsday, his attorney supposedly said that

“Agger didn't realize his permits were expired, because permit rules had changed. He said they agreed to the settlement in part because fines for expired permits would have been thousands of dollars more. 

"’You make one mistake and act in accordance to that mistake and the error is perpetuated,’ he said. ‘Mark wasn't told that he was missing a permit.’ 

“Addressing the prohibited fins fine, Ouellette said species are frequently added and taken off protection lists.”

Is that an example of “taking responsibility”?

Another fisherman, Charlie Wertz, was quoted by Newsday as saying that NMFS

“should give back those excessive fines. That would be the right thing to do."

It’s not clear from the article whether the “Charlie Wertz” quoted was the late Charles Wertz, Sr., a Freeport commercial fisherman, or his son, Charles Wertz, Jr.  However, a press release issued by NMFS about a year ago noted that

“Charles Wertz, Jr. pled guilty in federal district court to one count of wire fraud and two counts of falsifying federal records. His company, C&C Ocean Fishery, Ltd., pled guilty to one count of wire fraud and three counts of falsifying federal records. Though the final sentence is up to the Court, the defendants have agreed to pay between $480,000 and $516,000 in combined fines and forfeitures and will undergo multiple sentence conditions, including relinquishment of federal fishing permits, a ban on participation in the RSA program, and shutting down C&C Ocean Fishery…

“Wertz manipulated the system by purchasing set-asides for fluke (also known as summer flounder) but underreporting the total catch. He used C&C Ocean Fishery to file false federal dealer reports that matched what was filed from his fishing vessel. The information submitted to NOAA on catch weights and fish species was false.

“…Agents worked with the Department of Justice Environmental Crimes Section to obtain and execute search warrants leading to the documentation of more than 86,000 pounds of unreported catch worth nearly $200,000.”

Given those facts, it’s not hard to understand why the guy might have been leery of enforcement agents…  

And it’s not hard to understand what motivates the attacks on law enforcement efforts.

Still, those attacks go on.

Also here in New York, Daniel Rodgers, an attorney representing East Hampton fishermen, is seeking legislation that would limit the ability of enforcement agents from the Department of Environmental Conservation to inspect and, if they find any illegality, seize a fisherman’s catch.  

He seems to have little concern that such restrictions would make it extremely difficult to detect and prosecute illegal harvesters, since fish can be easily moved and thus can be spirited away before any sort of court order to search the fisherman’s property can be obtained.

As in Gloucester, local lawmakers more concerned with votes than the future viability of New York’s fisheries have jumped on the bandwagon, trying to convince the state legislature to pass a “Fishermen’s Bill of Rights.”  So far, rationality has prevailed and the bill has gone nowhere.

In the meantime, Rodgers has, through Assemblyman Fred Thiele, convinced the New York State Inspector General to investigate the DEC’s law enforcement activities.

He is also trying to prevent law enforcement from selling illegally harvested fish, and instead would require them to find some sort of storage for what could be very large quantities of seafood pending trial.

Rodgers seems to have little concern for how such a requirement would affect law enforcement efforts or the health of fish populations, commenting that

“’Part of the argument is, what is the alternative.  If any officer attempts to confiscate fish, shellfish, lobsters or any other food fish how will they keep it for trial? Well, frankly, that is not my problem. If you are going to confiscate someone’s fish as evidence for trial in a criminal case, the law says you must keep it safe until a determination is made by court. That is called due process.”

Finally, down in North Carolina, we see the same problem take on yet another face.

The North Carolina Division of Marine Fisheries is seeking to enter into a joint enforcement agreement with the National Marine Fisheries Service, which among other things, would provide the state with an additional $600,000 for fisheries enforcement and allow both state and federal enforcement agents to address fisheries violations in either state or federal waters. 

The $600,000 was included in the last state budget but

“Six weeks ago, Daniel [Director of the DMF], Skvarla [Director of the DMF’s parent agency], [Governor] McCrory, Rep. Thom Tillis (speaker of the state house and a candidate for the U.S. Senate) and Sen. Rep. Phil Berger (president of the state senate) received a letter from 10 Republican legislators expressing their opposition to the JEA, despite its having been part of the budget that was passed by both Republican-controlled houses of the legislature.”

Once again, it seems that fishermen aren’t very fond of enhanced enforcement efforts, and politicians are right there to pander to their concerns.

One state senator, Bill Cook of Beaufort, noted

“In the Senate, we haven’t supported the gamefish bill and the joint enforcement bill. said Sen. Bill Cook (R-Beaufort).

 “I think the federal (government) needs to get out of North Carolina . . . we need to protect our commercial fishing industry.  In 15 or 20 years, federal regulations will run them out of business.”

Once again, protecting the fish, and the public interest in healthy fish stocks, from those who violate the laws didn’t seem to be much of a consideration.

Politicians are supposed to look out for the public’s interests, not the interests of folks who abuse publicly owned fisheries resources.  But up and down the east coast, that’s not what’s happening.

Instead, politicians are looking out for the poachers, seeking to use their influence to pass legislation and intimidate regulatory agencies, to make the law enforcement effort as difficult as possible.

And it’s all going on under the radar, with most of the media, if they report the story at all, emphasizing alleged government abuses of fishermen and ignoring the fishermen’s demonstrated abuses of various fisheries.

That’s not the way that it’s supposed to be.

The first step in fixing the problem is to acknowledge that it exists...

SUMMER FLOUNDER MANAGEMENT: IT'S HARD TO COMPLAIN

Right now, the Mid-Atlantic Fisheries Management Council, working together with the Atlantic States Marine Fisheries Commission, is holding “scoping” hearings and taking public comments on summer flounder management.

Every aspect of management is on the table; the Council and Commission want to hear from as many people as possible before beginning what could be a major amendment to the fishery management plan.

In the past—really, for the entire first decade of this new century—summer flounder managers endured a firestorm of complaints and criticisms after they imposed strict regulations on both commercial and recreational fishermen in an ultimately successful effort to fully rebuild the stock.

Along the way, both federal fisheries managers and federal fisheries laws were subject to constant attacks leveled  by commercial fishermen, tackle dealers and for-hire operators in New York and New Jersey (although folks in some other states, most particularly Virginia, also took part in the vituperation).

I sat on the Mid-Atlantic Council for part of that time, and recall the theatrics too well.

There were the orchestrated complaints from the party boat captains, who came back year after year to warn us that they were going to go out of business that season—if they held out so long—if legally mandated restrictions were ever imposed.

There was the self-appointed Long Island “celebrity” with his own TV show, who showed up in the hall before one Council meeting with film crew in tow, shining his lights and his cameras on anyone who might be willing to complain about the way summer flounder were managed (folks without complaints were neither wanted nor recorded), and got very upset when the Council chairman wouldn’t allow him inside to turn the meeting itself into a media circus.

There was the Huntington, New York party boat captain who was escorted out of a Philadelphia meeting by security guards, just for being himself…

Well, you get the idea.

Mention “summer flounder” back then and there were always a few hundred people ready to tell you where the feds had gone wrong and how the fishery should really be managed.

But something strange happened between then and now.

Federal managers—and federal law—turned out to be right.

Summer flounder were fully recovered, and anglers who once fought for the “right” to kill 14-inch fish—fluke so small that you could literally hold them up to the sun and count the bones through their skin—started regularly catching fish so large that each fillet was more than 14 inches long.

Regulations, which once grew steadily more restrictive as the stock struggled to rebuild, began to ease, with legal fish getting smaller and bag limits getting larger.

It wasn’t like the old days, when you could take home a pailful of see-through fluke, but even so anglers in southern states were seeing so many fish that, even under the new relaxed rules, they couldn’t land their entire quota.  As a result, some of their “unused” fish were transferred up north, so that those states could ease their regulations, too.

The bitter complaints of the decade before pretty much went away by the time the scoping hearings began this fall.

About the only folks who had much to say were the die-hards who would never accept the need for conservation, and the fishermen—commercial and recreational alike—who, rightly or wrongly, sought a bigger piece of the pie.

To some extent, here in New York, it was the same old story, with fishermen complaining that the science was faulty and led to in regulations that were far too restrictive.

But they also seemed to have a legitimate complaint, when they claimed that the state didn’t get a fair share of the quota.  Neighboring Rhode Island is awarded 15.68% of the landings, while its other neighbor, New Jersey (Connecticut, which borders Long Island Sound, has a much smaller fishing industry) is given 16.72%; compared to that, New York’s 7.65% does seem too small.

Of course, the raw percentages only tell part of the story; they don’t reveal why New York’s commercial fishermen get fewer fish.

That dates back a few years, to the days before Rudolph Giuliani made his mark on Manhattan and the Fulton Fish Market was still a “family” business.  

Unlike fishermen in other states, those in New York didn’t weigh out their catches right at the dock and sell them to local fish houses.  Instead, they just boxed them up and shipped them off to Fulton.

That was OK, as far as it went.  The fish got to the market, and the fishermen got paid.

It was how they got paid that produced all the problems.

Because the boys down at Fulton weren’t all that fond of keeping good records that might show up at inconvenient times—say, in the midst of a federal probe (you may recall that Giuliani actually did subpoena such records one day, and probably would have gotten them, too, if the building that they were stored in hadn’t caught fire at just the wrong time.)

So instead of regularly mailing mail the fishermen weighout slips, accompanied by a check for the fish that were bought, they often just sent out a thick wad of cash.

That served the families’ recordkeeping needs pretty well, and the fishermen liked it too, particularly when it came time to fill out their tax returns.

But when the Mid-Atlantic Fishery Management Council decided to divvy up summer flounder among the states, and used catch history as the criteria, it posed a bit of a problem for New York’s commercials, because the catch records just weren’t there.

As a result, they got shortchanged on the quota.

They probably could have reconstructed the records, but that might have required new tax returns, too…

So they had some grounds to complain.

They’re complaining down in New Jersey, too, for largely the opposite reason.  

They’ve long sat high in the catbird’s seat, enjoying some of the highest recreational and commercial quotas on the coast; now, like spoiled four-year-olds, they get upset at the thought of sharing with others.

Greg DiDomenico, executive director of the Garden State Seafood Association, noted that

“We have a likelihood of getting picked to death.  A lot of people are somewhat jealous of the quotas we have.  Massachusetts is looking in the southern direction for numerous fish, including this one.”

Jim Lovgren, a long-time commercial fishermen who I often spoke with back when I sat on the Council put it more tersely, although he named a different adversary, saying

“New York is out to steal your fish.”

Of course, there’s some of the old “the science is bad and the law is no good” rhetoric still being spouted down there too, although, in New Jersey, it usually comes from the recreational side.

Ray Bogan, an attorney who frequently represents the for-hire industry (yes, he’s part of the same extended family that owns all of those party boats) made the same sort of noises that he’s been making for nearly two decades, calling federal fisheries law “onerous and punitive legislation,” and saying

“The only two things that we can verify from the current management system is a rebuilt stock and the destruction of the traditional fishery.”

Of course, we wouldn’t have “a rebuilt stock” without “the current management system,” and it’s pretty easy to argue that “the destruction of the traditional fishery” that depleted the summer flounder stock in the first place isn’t a bad thing.

Still, it’s nice to see that nothing has changed since the days when I sat on the Mid-Atlantic Fisheries Management Council, and he used to threaten to “hold [us] accountable” if we voted for management measures that the staff biologists told us were good, but the party boat folks didn’t like.

Because people like Bogan and some of his clan might have complained about the Magnuson-Stevens Fishery Conservation and Management Act, and whined about how Magnuson-mandated fluke regulations were going to put them out of business, but it’s hard to deny that those regulations allowed the population to fully rebuild.  Today, we’re all reaping the benefits.

Anglers are generally happy and bringing enough fish home to keep most of them satisfied, although a few hungries still gave over their shoulder at days gone forever and mourn that they used to kill more.

The for-hire boats are carrying well.

And the commercial boats are landing fish and making good money, even if the New York folks want a bigger share of the catch, and their counterparts in New Jersey are afraid that they’ll get it.

With things going that well, we shouldn’t be surprised that the scoping hearings didn’t create more of a stir.

Summer flounder are one of the best-managed stocks on the coast, thanks to the Magnuson Act and managers who didn’t wilt under fire and had the courage to make the tough calls.

If other managers, and other management councils, follow their example, pretty soon folks will have a hard time complaining about other stocks, too…

THE CRUMBLING FAÇADE: STRIPED BASS A FLAWED MODEL FOR FISHERY MANAGEMENT

A few days ago, I came across a blog written by Steve Kline, Director of Government Relations for the Theodore Roosevelt Conservation Partnership.  The topic was striped bass, and when it comes to stripers, there’s no question that Kline understands just what’s going on.

He wrote

“For a decade, the striped bass spawning stock biomass has been falling, with a variety of factors, including habitat quality, nutritional issues and disease, all playing a role. But fishing pressure has not followed the downward trend. This means that striped bass may be subject to a fishing pressure that is unsustainable, promising very real problems for the fishery in the not too distant future.

“There is no better way to ensure a crisis than by seeing one coming and doing nothing. While perhaps not a crisis today, a problem exists in striped bass country that requires action. Some combination of bigger minimums, reduced creels and/or shorter seasons are all on the table as fishery managers attempt to get out in front of a catastrophe in a major recreational fishery. The most aggressive steps will likely assure the best results, putting the fishery back on track in the shortest order. Of course, in exchange for maintaining the status quo today, some will champion a tepid response that kicks even tougher choices further down the road. Recreational anglers should reject this short-sightedness and support what the science indicates needs to happen.”

It’s hard to disagree with those comments.  They appear to be right on the money.

Which is a little curious, given some of the positions taken by his employer, the Theodore Roosevelt Conservation Partnership, and some of the organizations that help steer TRCP’s policies with respect to salt water fisheries management.

We just need to look at TRCP’s magnum opus on the subject, A Vision for Managing America’s Saltwater Recreational Fisheries.  That report holds out the striped bass story as a model for fisheries management, whether on the federal or state level, noting that

“The NMFS should manage recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas.  This strategy has been successfully used by fisheries managers in the Atlantic striped bass fishery, which is the most sought-after saltwater recreational fishery in the nation…”

But as Kline points out, striped bass management, at least in the past decade, hasn’t been all that successful.  Biomass is falling—if we believe the chart on page 14 of the Atlantic States Marine Fisheries Commission’s Draft Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan for Public Comment, it has already fallen—below the threshold that defines an overfished stock.  Few active striped bass anglers doubt that they are, and have for some years been “subject to a fishing pressure that is unsustainable, promising very real problems for the fishery in the not too distant future.” 

And a lot of us who have been active advocates for responsible striped bass management have been appalled to hear more than a few members of ASMFC’s Striped Bass Management Board support “a tepid response that kicks even tougher choices further down the road.”

That’s no way to manage a fishery, despite what the TRCP report might say.

That report extols managing a fishery on the basis of “long-term harvest rates.”  But it’s pretty silent on what constitutes “long-term” or what you do when a rate is demonstrably too high. 

In the case of striped bass, the answer seems to be that you delay and attempt to do nothing.

Back in March 2011, ASMFC’s Striped Bass Management Board, in response to a noticeable decline in the striped bass population and a sharp drop in recreational catch, particularly in northern New England, decided to move forward with an addendum to the management plan which would reduce harvest and hopefully rebuild the population.

Although the motion to begin that addendum passed by a vote of twelve to two (with two abstentions), not everyone was happy with such an outcome.  Tom Fote, the governor’s appointee from New Jersey, tried to derail the addendum, saying

“We have a success story.  We have triggers in [the management plan].  I’m waiting to see the triggers.  It would be like me coming in and saying on summer flounder or any other species, well, we think we’re anticipating that the stock is going to crash in two years and now we’re going to jump—I don’t think that’s the right message to send to the public.”

Fote clearly didn’t care for the idea of stepping in and trying to avert a crisis—his words clearly convey his belief that if the stock is in danger of crashing “in two years”, managers shouldn’t “jump” now, but rather should wait for a crash before taking action.

Although Fote lost that March 2011 vote, he ended up having the last laugh eight months later, when the Striped Bass Management  Board decided to defer any action on the addendum until after the benchmark stock assessment was completed in late 2013.

But then his story changed when one of the “triggers” he spoke about was actually tripped.

Amendment 6 to the Interstate Management Plan for Atlantic Striped Bass requires that, when the fishing mortality rate exceeds the target for two consecutive years, and the female spawning stock biomass drops below target for one, the fishing mortality rate must be reduced within one year.  The 2013 Atlantic Striped Bass Benchmark Stock Assessment and the Update of the Striped Bass Stock Assessment Using Final 2012 Data demonstrate that has already happened, but Fote is still opposing conservation measures.

When the benchmark stock assessment was presented to the management board in October 2013, he began his fight against mandated harvest restrictions by casting aspersions on the science and on the people who want to conserve the striper, saying

“In my estimation, we’ve been here when the sky is falling and a whole bunch of people yammering.  I mean, it was Maine sitting at the table for years yammering and they had a good year on striped bass.  Whether fish come inshore or not depends on water temperature and with the bait inshore a lot of times, and that is what it affects especially with the EEZ closed.  We see the effects of this happening.

“…People have been pushing for closing this or doing something.  The people that basically send the e-mails are the people who want to do that.  The people that are out fishing a lot times [sic], which is a majority of the fishermen I go around and talk to, they’re not ready to jump through this type of hoop.  I really think that we have some real concerns here.”

Suddenly, once the triggers were tripped, the man who was “waiting to see the triggers” stopped talking about triggers altogether.  Now he opposed taking expedited action to respond to the triggers being tripped because

“…This is not a minor change.  It affects a lot of people’s livelihoods, it affects a lot of people the way they do business.  It is going to have a huge impact on the recreational fishing industry up and down the coast.  I think that this is too big to just do an addendum”

He argued that a full amendment—which would take far more time than an addendum to complete—was the proper response to the stock assessment; if the management board agreed with him, harvest reductions would be delayed that much longer.

Fote failed to convince a majority of the management board, but that doesn’t mean that there weren’t a number of management board members who wanted to delay the process.

Thomas O’Connell, a fisheries manager from Maryland, moved to delay harvest reductions by changing the language of the Amendment 6 trigger, which required fishing mortality to be reduced to or below the target level within one year.  O’Connell wanted to extend that deadline to three years because

“…a 32 to 36 percent reduction is going to have large socio-economic impacts…”

Fote and a number of other management board members jumped on that bandwagon, adding a phased-in three-year reduction to the options in the draft addendum.

So now, fully a year after the benchmark stock assessment called for reductions in both target and actual harvest levels, anglers and biologists are still holding their collective breath to see whether the management board will, in Kline’s words, “support what the science indicates needs to happen” when it meets on October 29.

Clearly, there are some real problems with the current approach to striped bass management.  So far, Kline is the only person at TRCP to come right out and admit it, although I strongly suspect that he’s not the only one who feels that way.  He’s merely the only one honest enough to admit the truth.

The rest still rally around the concept of managing other recreationally important species “like striped bass,” even though the entire concept is nothing more than an effort to sidestep federal fisheries law, with its requirements that the best available science be followed, that overfishing be stopped and overfished stocks be rebuilt, and replacing it with state-based management, which is far less rigorous and much more concerned about supporting the near-term incomes of fishery-dependent businesses.

In many ways, the whole debate centers around red snapper, a species that is still a long way from being rebuilt, and is subject to some very severe harvest reductions that are making many anglers unhappy.

The Center for Coastal Conservation, a large recreational fishing and boating trade organization that casts an influential shadow on TRCP, supporting legislation that would turn red snapper management in the Gulf of Mexico over to the states.

That sort of short-sighted effort doesn’t do the fish or the anglers any good in the long run, which is probably why Kline noted that “Recreational anglers should reject…short-sightedness and support what the science indicates needs to happen.” 

For the red snapper regulations, as unpopular as they might be, are based on a peer-reviewed stock assessment that was just released last year, which represents the best available science relating to the Gulf of Mexico red snapper fishery.

Rejection of those regulations, and the entire federal regulatory framework, in favor of state management—managing snapper “like striped bass”—would be a rejection of Kline’s proposition that anglers should support the science.

It would be equally wrong to manage red grouper, winter flounder, tautog or Atlantic cod—or any other species—with the same kind of delays and dissembling that has been a hallmark of the striped bass management process.

Fisheries management should be a purely scientific endeavor; nothing else can assure America of healthy fish stocks now and well into the future. 

Neither providing transient economic benefits for boatbuilders or the folks who import our fishing tackle from China, nor providing whatever temporary political benefits can accrue from allowing anglers to kill more fish than they should will get the job done.

Thus, it’s heartening when a high-ranking figure at TRCP acknowledges that striped bass management is not a panacea, that it has failed to effectively rein in harvest and that, if the fishery is to be preserved, anglers must support whatever regulatory measures are dictated by the science.

It would be even more heartening if all of the other folks at TRCP acknowledged that simple truth.

WILL NEW ENGLAND EVER LEARN?

It looks like the New England Fishery Management Council has sort of gotten the word that cod are in trouble and that they have to do something.

With spawning stock biomass down to 3 or 4 percent of target levels, and every index of abundance coming in at all-time lows, denial is no longer an option.

So the Council’s Groundfish Oversight Committee sat down, got to work and came up with a list of remedial measures that would allow them to look like they were taking some action without actually killing too many less codfish.

They proposed closing the recreational fishery for the rest of the year, and perhaps closing some areas to fishing while opening up some others that are currently closed. 

Reductions is quota, though, weren’t on the table.

That’s what they’re going to do for the rest of this year, and Vito Giacalone of the Northeast Seafood Coalition hopes that they don’t do anything more for the 2015 fishing season.  He notes that

“They could take the cod quota right off the table, leaving us with something like 20 percent of the existing quota.”

Giacalone clearly thinks that’s a bad thing.  

Of course, if managers don’t cut the quota and fishermen end up extirpating the Gulf of Maine stock, pretty soon folks won’t catch any cod at all, but at least some of the guys will be able to buy a few beers before that actually happens.

I’m sure that word of the codfish collapse will make the national news at some point in time, and that folks in Kentucky and Kansas and on the West Coast will read the stories and wonder just how things went wrong.

On the other hand, here in the northeast, we’ll sit around wondering why anyone believes that they story is “news” in the first place.  For as the old adage goes, “When man bites dog, that’s news.”

And the New England Council letting a fish stock collapse is hardly something unusual.

The New England Council will face the Last Judgment secure in the knowledge that they never cut quota—or even imposed one—unless they were forced by a judge or a statute, and sometimes not even then.

As a result, almost all Council groundfish plans eventually fail.

In fact, the New England Fishery Management Council has the worst management record in the nation.  As of the end of 2012, 38% of its managed stocks were overfished, and a whopping 41% were subject to overfishing.

That compares to NO overfished stocks in the neighboring Mid-Atlantic Fishery Management Council, which also had NO stocks subject to overfishing.

Of course, the Mid-Atlantic Council was an early adopter of hard quotas…

(To be fair, 33% of the South Atlantic Fishery Management Council’s stocks were also overfished, but after that, the number drops sharply, with third place going to the Gulf of Mexico Fishery Management Council’s mere 14%.  But when it comes to stocks that are subject to overfishing, the New England Council is in a class of its own; the closest competitor is the Pacific Fishery Management Council at 16%, a rate far less than half of that of New England.)

The New England Council’s poor record is an embarrassment to America’s otherwise excellent management program.  Recently, Peter Baker, Northeast Director of the Pew Charitable Trust’s U.S. Oceans Program, produced a report entitled Risky Decisions, which looks at just why the New England Council’s management record is so inexcusably bad.

To what I hope is no one’s surprise, it found that one of the key reasons for so many management failures was the Council’s absolute refusal to impose hard catch quotas, and its reliance on “input controls” such as gear restrictions and limiting vessels’ days at sea.

Such measures don’t work.  As the report noted,

“Despite well-documented shortcomings and a fundamental lack of accountability in the days-at-sea system, it remained the council’s principal management tool for controlling fishing for the next 15 years.”

But the New England Council was never just a one-trick pony.  Along with avoiding hard landings quotas, Pew’s report (and years of experience) tells us that it failed to monitor discards and bycatch, generally adopted the riskiest options permitted by law (that is, those with a 50% chance of failure) and normally dragged out rebuilding periods for as long as legally possible, which increased the possibility of error and deferred the time when unsuccessful plans would have to be fixed.

Those were the nice things that Baker said in Risky Decisions, and to my way of thinking, they’re bad enough.

But it seems that one more thing was at work here:  A good percentage of the fishermen are apparently crooks.

That came out in a paper with the entitled “Rational noncompliance and the liquidation of Northeast groundfish resources,” which was written by Dennis M. King of the University of Maryland and Jon G.Sutinen of the University of Rhode Island, and appeared in the journal Marine Policy back in 2009.

King and Sutinen found that

“One-third of fishermen in the [New England groundfish] fishery believe illegal fishing is already significant enough to prevent them from ever benefitting from fish stock rebuilding programs.  From the perspective of these fishermen, the most “sustainable” strategy is to earn as much income as possible from fishing as soon as possible before the fishery collapses or is shut down.  Under these circumstances, further tightening of restrictions on legal fishing increases the likelihood that normally law-abiding fishermen will engage in illegal fishing for economically rational reasons.”

They decided that

“a typical fishing skipper in this fishery can expect to increase net earnings per trip by approximately $4,300 by not complying with fishing restrictions.”

That can lead to a lot of illegal harvest.  The paper’s authors estimated that in just a single year, 2006, illegal harvest in the New England groundfish fishery probably accounted for 5,200 metric tons of fish, worth about $13 million.

Perhaps more important, they determined that

“eliminating an annual groundfish harvest of 5,202 mt per year would result, over 5 years, in an increase in groundfish stock biomass of about 28,000-30,000 mt, or an increase of about 60,000-70,000 mt over ten years.”

Yet the New England culture, at sea and on shore, seems to tolerate bad behavior on the part of both fishermen and the Council.

Massachusetts residents are going to elect a new governor this year, and both candidates are campaigning on platforms that include opposition to federal regulations needed to rebuild groundfish stocks.

And a recent editorial in the Gloucester (MA) Daily Times attacked the updated stock assessment of Gulf of Maine cod and proposed conservation efforts. It said that

“before the council, essentially an arm of the National Oceanic and Atmospheric Administration’s, moves to enact any so-called “emergency” measures, it not only owes fishermen and industry leaders some very real explanations as to why this NOAA study was conducted the way it was. It should also give fishermen or an industry group like the Gloucester-based Northeast Seafood Coalition the chance to carry out their own review of the stock assessment findings and the methodology that generated them…

“On the surface, the data indeed suggests a Golf of Maine cod “emergency,” with spawning biomass levels pegged at just 3-to-4 percent of the target for a maximum sustainable yield, and with survey indices and spawning stock biomass seen at all-time lows, according to NOAA’s figures.

“But it’s frankly hard to concede this new data is credible, given the manner in which NOAA carried out the assessment. You see, at a time when state and federal lawmakers, industry advocates and even NOAA officials have sought to ensure that fishermen would have input in any such studies through cooperative research, NOAA’s science wing found a need to execute a real end-run around all of those efforts with an “unscheduled” assessment that, true to the agency’s history, allowed for no industry input at all.”

In other words, the paper doesn’t have any reason to believe that there are any real flaws in the data, but it doesn’t like the fact that an “unscheduled” assessment might restrict fishermen’s landings, and it wants to give those fishermen an opportunity to contest the data and delay conservation measures for as long as they possibly can.

Because that’s how the folks up in New England address fisheries problems.

They deny, delay and dissemble, while catching all that they can until the feds catch up or the fish are all gone.

And it pretty well answers the question posed in this essay’s title.

Will New England ever learn?

The answer, I fear, is “Hell, no!”

Though we might want to append “Not until it’s too late.”