COURT WATCHING OVER RED SNAPPER IN GULF

On December 20, the parties in a federal lawsuit challenging the Department of Commerce’s (Commerce) decision to reopen the 2017 private boat red snapper season in the Gulf of Mexico reached a settlement that should bring an end to the litigation while protecting the red snapper resource.

For those unfamiliar with the facts leading up to the lawsuit, anglers have chronically overfished their red snapper allocation in the Gulf of Mexico. In recent years, federal fisheries managers have tried to prevent such overfishing by shortening the recreational fishing season, but have been frustrated by the five Gulf states, which adopted regulations that are much less restrictive than those that apply in federal waters.

In Texas, for example, the recreational red snapper season never closes; the bag limit is twice what it is in federal waters, and the size limit is two inches shorter. While the other Gulf states haven’t gone to Texas’ extreme, and still adhere to the federal size and bag limits, their seasons are long enough that managers expected 81 percent of all 2017 recreational red snapper landings to be caught in state waters.

They predicted that it would only take three days for anglers fishing in federal waters to land the other 20 percent.

The three-day federal red snapper season was heavily criticized by Gulf of Mexico red snapper anglers and the local outdoor press. It was turned into a rallying cry by recreational fishing groups trying to weaken the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), who constantly railed against the short federal season, while conveniently ignoring the lax state rules and recreational overharvest that made such a short season necessary.

Representatives of the recreational fishermen met with elected officials and the Department of Commerce; in the end, Commerce gave in to their requests to reopen the season, even though agency officials knew that it would result in overfishing and delay the red snapper stock’s recovery.

Emails documenting the internal discussions at Commerce are both enlightening and troubling. One, sent to Commerce Secretary Wilbur Ross by Earl Comstock, Director of Commerce’s Office of Policy and Strategic Planning, expresses a particular cynicism. In it, he notes that reopening the season “would result in overfishing the stock by six million pounds (40%), which will draw criticism from environmental groups and commercial fishermen.”

However, he dismisses any opposition to the reopening by observing that “Under the Magnuson Stevens Act a court can’t issue a temporary restraining order, so your action would remain in effect for at least 45 days before a court could act.”

He effectively acknowledged that reopening the recreational season would lead to overfishing, and that people would probably object, but then dismissed such concerns because a loophole in the law would let the agency get away with such an illegal act.

And he had good reason to believe that was true. As he noted, Magnuson-Stevens doesn’t allow courts to issue temporary restraining orders to delay fishery management actions, and it gives the agency 45 days to reply to any legal challenge. By the time a court could act, much of the damage caused by the reopened season would already have been done.

Furthermore, federal litigation takes time, and it was highly unlikely that a judge would be able to render a decision on the merits of any lawsuit before the end of the extended season. Once the season closed, Commerce could rely on the legal concept of “mootness,” arguing that once the 2017 season ended, there would no longer be an active “case or controversy” for the court to decide.

However, there is an exception to the mootness doctrine, which allows a case to proceed if the contested matter is “capable of repetition, yet evading review.” When the duration of the defendant’s action is so short that the action in question concludes before a court can take action, as was true of the reopened season, and there is a reasonable expectation that the defendant will do the same thing again, courts will allow a matter to proceed, to prevent a future wrong from occurring.

If they didn’t allow such litigation, defendants such as Commerce could continually engage in illegal actions, knowing that the affected parties would have no legal recourse. So when the Ocean Conservancy and the Environmental Defense Fund (Plaintiffs) brought suit against Commerce, they explicitly relied on that exception in their complaint, which was intended to stop Commerce from acting illegally again, with respect to red snapper, in future years.

In the end, Commerce never even tried to argue that reopening the red snapper season had been legal.

Instead, it filed a motion for summary judgment, arguing that even if everything that the Plaintiffs claimed was true, Commerce should still win the suit because “the temporary rule has expired under its own terms, and the Federal recreational season is closed. Plaintiffs’ claims are moot, and the Court should enter judgment in favor of [Commerce] on jurisdictional grounds. Alternatively, if the Court concludes that Plaintiffs’ claims are not moot, the only appropriate course is for the Court to remand this matter to [the National Marine Fisheries Service] for further proceedings consistent with the agency’s duties.”

Translated from legalese, they said that “Even if we did illegally reopen the season, it’s too late to do anything about it now. And even if it isn’t too late, the only thing the Court can do is tell us to think about what we did, and whether we should do something more.”

Commerce also argued that the reopening was not “capable of repetition” because Chris Oliver, the National Oceanographic and Atmospheric Administration’s Assistant Administrator for NOAA Fisheries, “proffered a sworn declaration…that ‘NOAA does not intend to reopen the private angler season in the same manner in 2018. [emphasis added]” Commerce contended that such statement, “combined with the fact that multiple contingencies will inform the setting of future seasons undermine any notion that this scenario is likely to recur.”

However, the one thing that Commerce did not represent to the Court was that it would follow all of the dictates of Magnuson-Stevens when managing Gulf of Mexico red snapper.

Commerce, the Plaintiffs and the Court held a conference to discuss the case in November. During that conference, something apparently occurred that made Commerce rethink its position, because it ultimately entered into an agreement with the Plaintiffs that will help to protect Gulf red snapper in 2018.

On December 20, the Court filed an Order memorializing that agreement, in which Commerce acknowledged that

a) “The re-opening of the private angler fishing season for Gulf of Mexico red snapper in 2017 was a one-time action that the federal defendants have not elected to defend on the merits in the briefing filed in this cases to date;

b) The deadline for rebuilding the red snapper population in the Gulf of Mexico is currently 2032 as established under Amendments 22 and 27 to the Reef Fish Fishery Management Plan; and

c) The federal defendants anticipate publishing a Temporary Rule announcing the 2018 private angler fishing season for red snapper in the Gulf of Mexico (the “2018 Temporary Rule”) on or around April 20, 2018.”

Based on such acknowledgements and the agreement of the parties, the Court ordered that no further action be taken in the matter, provided that

“…2) The Federal Defendants must file a notice informing the Court at the time the 2018 Temporary Rule is issued. The notice must include a citation to the Temporary Rule, and it must inform the court of the date the 2018 season is scheduled to begin.

3) Plaintiffs may file a supplemental complaint…challenging the 2018 Temporary Rule, or any other rule issued by Federal Defendants that affects the 2018 season for the private angler component of the red snapper fishery in the Gulf of Mexico no later than seven (7) days after publication in the Federal Register of the rule being challenged.

4) Within three (3) days of the filing of any supplemental complaint, the parties must confer about a proposed schedule for further proceedings and submit a status report to the Court setting forth their joint proposal, or if they cannot agree on a schedule, their individual proposals for the Court’s consideration…”

Nothing in the Order prevents either of the Plaintiffs from filing a separate legal action or asserting a separate claim against Commerce with respect to any matter.

Notwithstanding the fact that the Order was the result of a negotiated agreement, it represents a complete vindication of the Plaintiffs’ claims.

The Court’s order prevents Commerce from again issuing illegal regulations that take advantage of the time limits built into Magnuson-Stevens, and that law’s prohibition on the issuance of temporary restraining orders. Because the Court retained jurisdiction in the matter, if Plaintiffs believe that Commerce’s 2018 recreational red snapper regulations violate the law in any way, they won’t have to begin a new lawsuit in order to challenge them. The suit that they filed this year could be immediately revived to address those regulations as well.

Andrea Treece, an attorney with Earthjustice, which conducted the litigation on behalf of the Plaintiffs, observed that “The Department of Commerce essentially conceded the illegality of its actions by failing to defend the case on the merits. With judicial oversight, this action won’t be repeated next year—Commerce is now on notice that it cannot play fast and loose with the future of our fisheries. We will be watching Commerce’s actions carefully to make sure they respect the law and make fishery management decisions based on science—in this fishery and around the country.”

Thus, the Plaintiffs won Gulf red snapper meaningful protection from future arbitrary and illegal actions that might otherwise have been taken by Commerce.

However, the threat to the stock hasn’t ended. It has merely shifted arenas, from Commerce to Congress, where a host of bad legislation has put not only red snapper, but all federally-managed fisheries, in serious peril.

The Plaintiffs won an important fight, but the biggest battles still lie ahead.

-----

This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which may be found at http://conservefish.org/blog/

A BREACH OF TRUST

As I’ve observed before, anglers have now been propagandized for nearly four years by the recreational fishing and boatbuilding industries that, working together with some anglers’ rights groups, are determined to weaken the Magnuson-Stevens Fishery Conservation and Management Act, in order to glean greater short-term benefits for themselves and their members.

It’s clear why the industry is taking that path.  They believe that if anglers can bring home more fish, they will buy more fishing tackle, more bait, more boats and more of the costly electronics that are appearing on even the most humble fishing vessels these days.  And if catching too many fish now causes fish to grow scarce in the future, the industry can always depend on their shills in the press to convince anglers that, if they only buy more expensive gear and electronics, and put those electronics on bigger, faster boats that allow them to travel farther each day, they will still be able to find and take home whatever fish may be left.

It’s a win-win strategy for industry, who should be able to maintain healthy cash flows even as the health of fish stocks decline.

It’s a little tougher to see where the anglers’ rights groups fit into the picture, as they’re essentially mortgaging their members’ future fishing opportunities in exchange for somewhat bigger kills over the next couple of years.  Their leadership probably knows this, as most of them still at least give lip service to the concept of conservation, but that leadership is probably tired of getting beat up on websites and in the press for doing the right thing.  So instead of being true leaders, and maybe losing some members and donors as a result, they apparently decided to follow the crowd and beat the drum for bigger kills, even if that means smaller fish stocks down the road.

After all, moral courage usually comes with a cost, while practicing situational ethics can bring valuable industry partnerships and donations...

The problem with all this is that anglers tend to trust organizations that they believe represent them, and magazines published with anglers in mind.  When such entities shape their message to please advertisers and donors, rather than to present the whole truth to members and readers, that trust is badly betrayed.

Nothing illustrates that better than the current campaign to weaken Magnuson-Stevens, through passage of something officially titled the Modernizing Recreational Fisheries Management Act of 2017, but more commonly called the “Modern Fish Act.”

The campaign leading  up to the Modern Fish Act began early in 2014, when an industry-friendly “Commission on Saltwater Recreational Fisheries Management”—chaired, not coincidentally, buy Johnny Morris, a mega-retailer of fishing  tackle, and Scott Deal, founder of a multi-brand boatbuilding company—issued a report entitled “A Vision for Managing America’s Saltwater Recreational Fisheries.”

That report was a hypocritical and internally inconsistent document.

It clearly and cynically appeals to anglers’ sense of stewardship and responsibility;  it opens with the line

“America’s sportsmen and women are the backbone of aquatic resource conservation,”

a line seemingly calculated to make anglers feel good about both themselves and the report, and make them more receptive to the report’s message.

The report then goes on to use the word “conservation” 28 times in just 14 pages, giving the impression that conservation mattered to its authors, but when it declares that

“The commission envisions a marine fisheries management system that conserves fishery resources, provides consistency in regulations, and produces the full range of saltwater recreational fishing’s economic, social and conservation benefits for the nation,”

an astute reader might note that when the benefits of angling are listed, “economic” leads the list, while “conservation” resides at the end, something that probably says more about the authors’ intent than they actually wished to convey.

But the real problems begin to arise when the report claims that

“What recreational anglers want and need is wide-ranging, dependable access to healthy and abundant fish stocks,”

for while that statement is undoubtedly true, it is just as true that

what dieters want and need is the ability to eat as much as they want, of whatever they want, and still keep losing weight.

And while both may be true, both also ignore reality.

For “access,” as used by Modern Fish Act proponents, doesn’t merely mean catching fish.  It means killing them and taking them home.  And just as the “wide-ranging, dependable” consumption of too much food would frustrate any hopes of losing weight, the “wide-ranging, dependable” access to—that is, harvest of—too many fish will frustrate any hopes of maintaining an abundant stock.

But like the cheesy diet-food infomercials on late-night TV, the Modern Fish Act’s supporters have been selling the dream that anglers can have their cakes—or their fish—and eat them, too, without any adverse results.

Thus, Mike Leonard, the so-called “Conservation Director” of the American Sportfishing Association, an angling industry trade group and enthusiastic supporter of the Modern Fish Act, praised last summer’s extension of the private-boat red snapper season, saying

“[The] announcement providing additional Gulf red snapper days is a welcome relief for the thousands of tackle shops, marinas, equipment manufacturers and other businesses who have suffered from decreasing public access to Gulf red snapper in recent years.  [emphasis added]”

He praised the reopening even though the Department of Commerce, when it took that action, acknowledged that it would cause “substantial” overfishing, and could push back the ultimate recovery of the Gulf red snapper stock by as much as six years. 

Since neither substantial overfishing nor the delayed recovery of an overfished stock promotes “healthy and abundant fish stocks,” and also fails to promote conservation, the industry reaction to the season reopening makes it pretty clear that when given the choice of access versus abundance, or economic versus conservation benefits, the Modern Fish Act folks are likely to opt for dead fish and dollars every time.

Yet the American Sportfishing Association, like other Modern Fish Act supporters, still tries to convince the public that

“This new bill will give federal managers the tools and data they need to both improve access and promote conservation of our natural marine resources.”

That is, of course, when they deign to tell the public anything at all.  One of the most notable things about the Modern Fish Act propaganda campaign is how intensive, yet how uninformative, it really is. 

It’s based on images such as the Center for Sportfishing Policy’s emotionally graphic photo of a father and two kids staring out at the water, with the message

“Don’t leave American families stranded at the dock…Pass the Modern Fish Act.”

It’s based on the American Sportfishing Association telling its members that

“We need our entire industry to stand behind it and promote it to the recreational fishing public,”

and providing a sample letter to anglers that says

“Good news.

“On December 13, 2017, the U.S. House of Representatives’ Committee on Natural Resources passed H.R. 200, a bill aimed at improving federal marine fisheries management.

“Even better news is that H.R. 200 incudes language from the Modern Fish Act.

“The Modern Fish Act is a comprehensive package specifically aimed at addressing the needs of the nation’s 11 million saltwater recreational anglers.  It will improve access to America’s federal waters and promote conservation of our natural marine resources. 

“Send a message to your Members of Congress today and encourage them to bring this landmark legislation to the floor for final passage.”

It’s not based on letting anglers know that, while H.R. 200 may improve access (meaning more dead fish on the dock), it certainly won’t promote conservation of America’s marine resources.

The bill includes provisions that some of the most destructive elements of the commercial fishing industry—such as the New England groundfish fleet that wiped out the cod stocks, and the Mid-Atlantic pair trawlers who remove tons of forage fish from the sea in a single tow—have supported for more than a decade, provisions that would make it easier to overfish and harder to rebuild overfished stocks.

Provisions so bad that true conservation organizations are calling H.R. 200 “another ‘Empty Oceans Act.’”

The sort of provisions that the Coastal Conservation Association, back in 2010, said

“are simply designed to drag out recovery in order to allow the highest level of fishing pressure to continue.”

Of course, the Coastal Conservation Association praised the Committee’s approval of H.R. 200, with its Modern Fish Act provisions, too, so it seems to be sending its members a different message these days…

But perhaps the greatest breach of trust occurred when the group Bass Anglers for Saltwater Conservation was launched in 2015, in a collaboration between the Bass Anglers Sportsmen’s Society, which promotes freshwater bass fishing and tournament competition, and Yamaha Motor Company, which produces motors for fishing boats, was formed.

The site tells freshwater bass fishermen, many of whom seldom if ever fish in salt water, that

“If you love fishing, boating, politics, or the outdoors, then you’ve come to the right spot.  Please have a look around, and make sure to contact Congress about your right to fish through one of the prewritten engagements found above.”

Thus, the Modern Fish Act supporters (including the American Sportfishing Association, Recreational Fishing Alliance, Coastal Conservation Association, Center for Sportfishing Policy, Yamaha Marine Advocacy, National Marine Manufacturers Association, Theodore Roosevelt Conservation Partnership and Congressional Sportsmen’s Foundation, all listed as “Our Partners”) have used the bass fishermen’s trust in their own association to convince them to send comments supporting bills such as the Modern Fish Act to inland legislators, who might otherwise not be concerned with saltwater fisheries issues.

The various pro-Modern Fish Act organizations give the bass fisherman no specifics on the merits of the legislation, but simply make emotionally charged statements such as

“the greatest threat to our sport today comes from those who wish to deny our right to fish by closing access to our nation’s oceans, bays, lakes, rivers, and anywhere else that we love to throw in a line.  We must continue to fight for our right to fish recreationally in America’s waters, and keep our beloved public resources public!”

Such statements are then followed up with requests to contact legislators, such as one to

“Tell Senator Cruz to support the Modern Fish Act!

“Join your fellow anglers in the fight to defend our right to fish.  By sending this prewritten letter to Senator Cruz, you are sending a message to Washington D.C. that anglers in Texas will not be ignored!  Join the fight today!”

No mention of what the Modern Fish Act is, no explanation of why it would benefit anglers.  Just rhetoric crafted to appeal to emotions, rhetoric crafted with the hope that it, coupled with the bass fishermen’s trust in the venerable Bass Anglers Sportsmen’s Society, will be enough to convince them to forward the industry’s message to targeted legislators.

It is a brilliantly cynical political move on the part of the Modern Fish Act’s supporters, though a gross betrayal of the bass anglers’ faith.

But that pretty well sums up the Modern Fish Act fight.  

It’s an industry effort, backed with substantial industry assets, to push through legislation that might help to fill industry coffers, even though it may also help to empty America’s seas.

It is a massive effort to hoodwink saltwater anglers by engaging their emotions with vague statements and graphic images, while keeping their intellects disengaged by avoiding any discussion of verifiable and quantifiable facts.

It is probably the greatest breach of trust ever perpetrated against the angling community.  It sees far too many writers, publications, organizations and companies that have, over many years and, in some cases, many decades, gained anglers faith, use that faith to further their own short-term interests, regardless of the harm done to the long-term interests of their readers, subscribers, members and customers.

Yet despite of, or more probably because of, such cynical and self-serving actions, it is an effort that may well succeed, unless enough anglers manage to see through the veil of pretty words, to the ugly reality beneath.

THE FACE OF THE MODERN FISH ACT, REVEALED

For more than six months, representatives of the recreational fishing industry and various anglers’ rights organizations have been telling recreational fishermen to support something that they call the “Modern Fish Act,” a bill more formally known as H.R. 2023, the Modernizing Recreational Fisheries Management Act of 2017M (Act).

Like one of those miraculous diets that are sometimes pitched on TV, which let you eat anything you want and still lose weight, such folks have tried to convince anglers that the Act would let them harvest more fish, while also promoting conservation.

But just like those fanciful diets, the Act just can’t work as advertised.

Dieters have a choice: They can eat a lot of high-calorie foods, or they can lose weight. Anglers must make a similar decision: They can take fewer fish home, and see greater abundance, or they can take more fish home and see abundance decline. But they can’t have higher kills and higher abundance at the same time. Not in the long term.

Given that choice, the Act’s supporters choose higher kills.

That became evident last summer, after they convinced the Commerce Department to reopen the recreational red snapper season in the Gulf of Mexico, a move that the agency itself admitted “may delay the ultimate rebuilding of the stock by as many as 6 years” and “will necessarily mean that that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.”

Despite the fact that such reopening would lead to overfishing and substantially delay the recovery of the overfished red snapper stock, it was praised by the Act’s proponents. The American Sportfishing Association, which represents the fishing tackle industry, said that the reopening would “improve recreational access” to the red snapper fishery.

It seems that, for supporters of the Act, “overfishing” is what happens when commercial fishermen kill more fish than the stock can tolerate in the long term; it’s something to be both avoided and condemned. But when recreational fishermen kill more than the stock can sustain, it’s deemed “improved access;” it’s something to be both desired and celebrated.

Thus, when Jeff Angers, president of the Center for Sportfishing Policy, says that the Act “will ensure that all Americans have fair and reasonable access to our nation’s marine resources,” there’s reason for conservationists and responsible anglers to be very concerned, despite his contention that “America’s sportsmen are the original conservationists, and we fully recognize the importance of keeping healthy, robust stocks of fish and game.”

Such concerns were justified on December 13, 2017, when the House Committee on Natural Resources (Committee) marked up fifteen bills, including H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act. Significantly, the Committee did not schedule a markup of the Act, H.R. 2023; instead, at the request of the Act’s proponents, some of its provisions were instead incorporated into H.R. 200.

That request made it perfectly clear that the Act, and its supporters, are not concerned with conservation at all.

H.R. 200, as originally introduced in the House of Representatives early in 2017, is the most recent incarnation of legislation that has been introduced in each of the last few sessions of Congress. Its most immediate predecessor was H.R. 1335, a bill of the same name and substantially the same provisions, which was passed by the House in 2015, but died in committee in the Senate. Before that, there was Rep. Doc Hastings’ (R-Washington) H.R. 4742, which bore the same name as H.R. 200 and H.R. 1335, and also shared the same goal: weakening the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in the federal waters of the United States.

H.R. 4742 was so bad that it earned the nickname “Empty Oceans Act” from those concerned with the health of the nation’s fish stocks. Alexandra Adams of the Natural Resources Defense Council wrote that Rep. Hastings’ bill:

“would take us back to a time before the successes of the Magnuson-Stevens Act and to when fish populations—and the fishermen that depended on them—were in dire straits. [It] adds loopholes, waters down legal standards, encourages costly delays, and reduces transparency and accountability. The draft guts the rebuilding requirements that forced managers to make tough decisions that allowed our stocks to rebound, including by removing requirements for rebuilding guidelines…The theme of this…bill is definitely flexibility: the flexibility to fish until there is nothing left…It limits the authority of scientists to set science based annual catch limits…[It] attacks vital bedrock environmental laws, such as the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA), as well as the National Marine Sanctuaries Act and the Antiquities Act”…Compliance with NEPA is eliminated entirely…”

Despite his approach to fisheries conservation and management issues, the Center for Sportfishing Policy (then known as the Center for Coastal Conservation) once named Rep Hastings its “Conservationist of the Year,” which strongly suggests that its definitions of “conservation” and “conservationist” fall well outside of the mainstream.

H.R. 200, as marked up by the committee, contains most of the same flaws as did H.R. 4742. Like Rep. Hastings’ bill, it does away with the requirement that fish stocks be rebuilt, if possible, in no more than 10 years; like the earlier bill, it includes a long list of loopholes to its relaxed rebuilding timelines. Like Rep. Hastings’ bill, it restricts scientists’ ability to set annual catch limits and permits managers to employ “alternative” management measures that avoid such limits altogether. It attacks a host of environmental laws, and it eliminates the need to subject fisheries regulations to NEPA review.

In all, H.R 200 is bad enough that members of the conservation community have deemed it “another ‘Empty Oceans Act,'” a title that it certainly deserves.

So what did the Act’s proponents get for supporting Empty Oceans?

They saw some provisions of their Act incorporated into H.R. 200. A number of those provisions were related to red snapper, particularly those in the Gulf of Mexico. One provision would affect the data used to manage the stock; another threatens the catch share program that successfully ended commercial overfishing of Gulf red snapper ten years ago (while anglers continue to chronically overfish). A third would require the National Marine Fisheries Service to regularly re-examine the allocations of fish between the commercial and recreational sectors—but only in the Gulf of Mexico and South Atlantic regions, where the red snapper live; anglers governed by other regional fishery management councils must content themselves with the status quo.

There were some other provisions incorporated as well, which would provide additional exceptions to the annual catch limit requirement, allow more and potentially questionable data to be incorporated into stock assessments and require stocks to be assessed more frequently—provided that there was a need and money available to do so.

But the one thing that was not included in H.R. 200 is anything clearly intended to promote conservation. The bill, true to its “Empty Oceans Act” moniker, is uniquely designed to increase harvests while reducing fishery managers’ ability to rebuild and conserve fish stocks.

The American Sportfishing Association is calling H.R. 200 “Landmark legislation to benefit saltwater anglers.”

The Coastal Conservation Association concurs, while the Center for Sportfishing Policy announced, in a telling remark, that “This is a major step forward in implementing the vision set forth by the Morris-Deal Report for the future of saltwater recreational fishing.”

That remark laid clear what many anglers already knew, that despite all the rhetoric, the Morris-Deal Report—formally, the report titled “A Vision for Managing America’s Saltwater Recreational Fisheries,” and released under the aegis of the Theodore Roosevelt Conservation Partnership—was never about conservation at all, as its authors claimed, but instead about recreational fishermen killing more fish, and escaping the science-based regulations of Magnuson-Stevens.

Because that is exactly what H.R. 200 is designed to let them, and commercial fishermen, do.

Thus, it was a blatant lie, and an affront to its readers’ intelligence, when an industry publication, The Fishing Wire, announced that “Conservationists support advance of Magnuson-Stevens reauthorization,” as it hailed the Committee’s approval of H.R. 200, since conservationists don’t support H.R. 200 at all.

H.R. 200 is supported by the same people who supported the Act, the same people who have long sought more fish for themselves and fewer regulations to protect the resource.

The same people that conservationists must oppose at every turn, if we are to have oceans that are healthy—and full.

-----

This piece first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be viewed at http://conservefish.org/blog/

THE BATTLES AHEAD

For advocates of salt water fish conservation, 2017 was not a good year.

It marked the first year of an administration that appears to have no connection with the natural world, on either land or water, and perhaps for that reason, has a seeming contempt for conservation issues.  Such administration serves as the perfect partner for a Congress heavily biased toward extractive users of all stripes, and equally hostile to the concept of conserving natural resources of all sorts.

Thus, in June, we saw the Department of Commerce reopen the private-boat recreational red snapper season in the Gulf of Mexico, knowing as they did so that such reopening was illegal and would lead to substantial overfishing.

That decision was followed up, in July, by the Secretary of Commerce overruling the Atlantic States Marine Fisheries Commission’s finding that New Jersey had gone out of compliance with ASMFC’s summer flounder management plan.  It was the first time in more than 23 years that such an ASMFC determination was overturned.  The consequences were much more far-ranging than merely allowing New Jersey anglers to enjoy too-lax rules; other states, which formerly feared having fisheries shut down if they defied ASMFC, are now more willing to push the boundaries of fishery management plans, knowing that there is a good chance that Commerce will ultimately reward their noncompliance.

That sort of thinking, and the resulting fear that ASMFC’s remaining authority to manage coastal fisheries might be effectively erased, may have played a role at a November meeting of the Atlantic Menhaden Management Board, when that board surprised and dismayed the conservation community by not adopting interim ecological reference points that would have required managers to consider the species’ role as a forage fish when setting annual catch limits for the menhaden stock.  Faced with the threat of Virginia going out of compliance with an adverse Management Board decision, and the possibility that Omega Protein, the largest harvester of menhaden, might bring suit, ASMFC voted 16-2 against adopting such ecological reference points, when well-informed vote-counters predicted, ahead of the meeting, that the reference points would, instead, be approved 11-7.

On the West Coast, the Environmental Protection Agency, immediately after speaking to representatives of the mining industry, reversed the previous administration’s decision to stop development of the so-called Pebble Mine, which threatens the watershed of Bristol Bay, Alaska.  While the mine hasn’t yet been approved—the EPA decision merely allows the permitting process to move forward—given that EPA Administrator Scott Pruitt is, and long has been, a lapdog for various extractive industries, there is scant reason to hope that the permit will be withheld; the odds have gotten good enough that Northern Dynasty Minerals, the primary developer of the proposed Pebble Mine, has just received new funding from a new business partner.  Thus, one of the last healthy natural salmon runs in the United States, which includes all five Pacific species—kings, coho, pinks, chums and the world’s largest run of sockeye—are likely to be threatened by pollution caused by mine tailings and runoff, and a near-pristine watershed badly degraded.

Finally, to close the year off on a sour note, in December the House Committee on Natural Resources, on what were essentially party-line votes, marked up and favorably recommended H.R. 200, a bill that will badly weaken federal fisheries laws, and H.R. 3588, the so-called “RED SNAPPER Act,” which will permit recreational fishermen in the Gulf of Mexico, with the connivance of state fishery managers, to effectively evade the impacts of whatever federal fisheries laws may remain, whether or not H.R. 200 is passed.

Now, as we look ahead to 2018, it is clear that some of the old battles will continue into the new year, and that even more, new battles loom on the horizon.

In Congress, it is probably impossible to prevent the House from passing H.R. 200, as it is exactly the sort of bill the majority prefers, placing short-term economic gains ahead of the long-term health of America’s natural resources.  It’s likely that the RED SNAPPER Act, which also weakens conservation measures, will also win House support.

The real fight for the health of our fisheries will take place in the Senate, where the outlook not quite as dim.  On the whole, the Senate has a more reasoned and deliberative approach toward legislation than does the House, and the key senators don’t exhibit the same sort of slash-and-burn mentality toward both marine and terrestrial resources that is enthusiastically displayed by the majority on the House Natural Resources Committee.  Thus, there is reason to hope that the Senate bill reauthorizing the Magnuson-Stevens Fishery Conservation and Management Act will look substantially better than H.R. 200.

S. 1686, the Senate version of the RED SNAPPER Act, is also unlikely to sail smoothly through that chamber, although it may ultimately pass in some form.

The most immediate threat will probably be S. 1520, the Modernizing Recreational Fisheries Management Act, often called the “Modern Fish Act.” 

The House version of the Modern Fish Act, H.R. 2023, was bad enough that many of its provisions could be seamlessly incorporated into H.R. 200, a bill so bad that it is being called “another ‘Empty Oceans Act,’” a sobriquet first given to a predecessor bill in an earlier session of Congress.  S. 1520, which remains a stand-alone bill, doesn’t sink quite so low, but it does contain provisions that threaten the quality of the data used to manage federal fisheries, and others that could undercut current provisions that prohibit overfishing and require the timely rebuilding of overfished stocks.  The real danger of S. 1520 is that it could be folded into whatever Magnuson-Stevens reauthorization bill finally emerges from the Senate, and that a lot of the bad provisions of H.R. 200 are included in whatever compromise legislation results from a House/Senate conference.

At the regional level, East Coast anglers are looking at two pending threats.

The first affects the striped bass.

Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass has, as its stated goal,

“To perpetuate, through cooperative interstate fishery management, migratory stocks of striped bass; to allow commercial and recreational fisheries consistent with the long-term maintenance of a broad age structure, a self-sustaining spawning stock; and also to provide for the restoration and maintenance of their essential habitat.  [emphasis added]”

Management “consistent with the long-term maintenance of a broad age structure” requires regulations which maintain harvest at relatively modest levels, and allow fish to survive to reach older age, larger sizes and, particularly in the case of striped bass, greater fecundity.  But there is currently an effort taking place at ASMFC, supported by some members of the Atlantic Striped Bass Management Board, to change the biological reference points that ultimately decide what striped bass regulations will be. 

Instead of regulations that provide for a greater abundance and a broad and more stable age and size structure of the striped bass stock, they are seeking reference points that will maximize yield, significantly reduce the number of older, larger females in the spawning stock, and so make the striped bass more vulnerable to consecutive years of poor spawning success.

As explained by Dr. Katie Drew, a stock assessment scientist for ASMFC at the Striped Bass Management Board’s August 2017 meeting,

“…Do we want to maximize yield, which…is a historical traditional reference point for a commercial fishery is [maximum sustainable yield].  Do we want to maximize catch rates, so that you can go out and have a high chance of catching a fish?

“Is that what we want?  Do we want to maximize trophy-sized fish?  Do we want regional reference points or do we want a coastwide reference point?  Do we want a less conservative threshold?  Do we want a threshold to really represent a threshold that is a danger zone, or do we want it to represent something different?”

Most serious recreational striped bass fishermen would like to see the species managed for abundance; those of us who lived through the collapse of the 1970s and 1980s, as well as younger anglers who know their striped bass history, would like to see it managed for a resilient spawning stock structure as well.  On the other hand, some commercial fishermen, who see the world through the lens of maximum yield, as well as many members of and spokesmen for the recreational fishing industry, who equate bigger kills with bigger profits, would love to see harvests increased, even if that puts the stock in greater jeopardy in the long term.

ASMFC’s Atlantic Striped Bass Management Board will discuss, but probably not make a final decision, on the question at their February meeting.  However, one issue they will decide, and which will have an impact on how much of the big 2015 year class survives to enter the coastal migratory population and, eventually, the female spawning stock, is whether Maryland should be granted a “conservation equivalency” exception that would permit the state to lower its minimum size for striped bass.

Right now, Maryland does not allow fishermen to retain striped bass smaller than 20 inches in length under any circumstances.  Although the details of the state’s conservation equivalency proposal have not yet been published by ASMFC, it’s widely expected that it will seek to decrease the minimum size to 18 inches.  That’s the size of a typical three-year-old bass, and it’s no coincidence that the 2015 year class will be three years old this spring, just as any such conservation equivalency proposal becomes effective.

So the effort to emphasize yield instead of abundance has, in a way, already begun.

The second thread addresses the striped bass’ frequent companion in the northeast, the bluefish.  As ASMFC announced in its latest edition of its newsletter, Fisheries Focus,

“In December, the Commission and [the Mid-Atlantic Fishery Management Council] initiated a new amendment to the Bluefish [fishery management plan].  The intent of the Draft Amendment is to review and possibly revise recreational/commercial allocation of the resource…A Scoping Document will be released sometime in 2018.”

Currently, recreational fishermen are allocated 83% of the bluefish harvest.  However, because anglers release more than 60% of the fish that they catch, they do not land their entire allocation.  Commercial fishermen, on the other hand, often land their full allocation, and under the terms of the existing management plan, are also allowed to harvest a percentage of the recreational sector’s unused allocation.

A strict reading of the Magnuson-Stevens Act casts some doubt on the legitimacy of such reallocation.  One of the stated purposes of the Act is

“to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and release programs in recreational fishing.  [emphasis added]”

The recreational bluefish fishery is a perfect example of a fishery that has been embracing such catch and release, with release rates increasing from 18% in the early 1980s to 62% in recent years.  However, transfer of recreational allocation to the commercial sector, far from promoting catch and release programs, does exactly the opposite:  It teaches anglers that catch and release accomplishes very little, for rather than increasing the abundance of bluefish, allowing more encounters and better recreational opportunity, it merely provides additional quota for the commercial sector to kill.

Furthermore, although part of the law’s definition of “optimum” yield is

“the amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities…”

which language places “food production” and “recreational opportunities” on an equal footing, the reallocation of unharvested—but not unused, as caught-and-released fish can be “used” by multiple anglers on multiple occasions—elevates food production above recreation, contrary to the language of the law.

Now, managers are considering going one step further, and permanently reallocating bluefish not regularly harvested by anglers to the commercial sector.

Given the contribution that catch and release fishing, as opposed to harvest, makes to the maintenance of healthy stocks, such reallocation would not benefit conservation goals, and certainly violates the spirit, if not the letter, of the Magnuson-Stevens provisions quoted above.  Anglers should be ready to oppose any such reallocation when the scoping documents become available.

Finally, up in Alaska, opponents of the Pebble Mine and the destruction that it will bring will be fighting a very difficult battle.  

Last year, despite receiving well over 200,000 comments in opposition to reopening the permitting process, the Environmental Protection Agency, at the behest of its chief administrator, Scott Pruitt, is allowing that permitting effort to move forward.  The process will hopefully be long, complicated and, with any luck, further delayed and complicated by litigation brought by champions of the salmon, clean waters and wilderness.  

But this is an administration that only values land that can be drilled, logged, mined or paved over, with no regard for the beauty of pristine open spaces, so we can expect it to fight as hard as it can, and with the benefit of its new court appointees at every level, to put the Bristol Bay watershed at 

risk.

Right now, given the current Congress, individuals will  not have too many ways to defend the watershed and its salmon.  But there will certainly be opportunities to donate to organizations opposing the mine, who will carry on the fight in the courts and in Congress and perhaps can delay the destruction long enough for the political landscape to change.  At the least, merely raising public awareness about what we could lose is a step in the right direction.

It would be nice to say that those are the only threats we will face next year, but that wouldn’t be true.  I’m winding down now only because I’ve already run on too long for one blog, not because I'm running out of problems.

The Northeast Canyons and Seamounts Marine Monument off New England, created to protect unique deep-water ecosystems, is under siege, just as other monuments were besieged on land, and for the same reasons—short term gain from resource extraction trumps, in this administration’s mind, any other values.

Regulations governing mako shark harvest are likely to be revised; shortfin makos are declining badly, and though ICCAT’s recent actions weren’t enough to ensure a recovery, we need to be sure that whatever actions the National Marine Fisheries Service takes in response to ICCAT will maximize benefits to the resource.

Forage fish are still targeted by high-volume fisheries in the northwest Atlantic.  

Anadromous fish on both the East and West Coasts are having their migrations blocked by dams and their spawning and nursery grounds threatened by siltation from unsound logging practices, drawdowns for irrigation, agricultural runoff and other pollutants.  

Nitrogen and phosphorus runoff from agriculture, septic systems and other sources is causing harmful algae blooms in our bays, while beds of eelgrass and other aquatic plants decline.  

Proposed budget cuts threaten existing programs to clean up rivers, estuaries and bays.

So yes, those who support the conservation and restoration of our marine fish stocks have a lot of battles ahead.

They will be difficult fights.  There will be losses.

Nevertheless, if we are to have healthy fish stocks in our future, they are fights that we cannot avoid.