SHORTFIN MAKOS IN CRISIS

If you spend much time fishing offshore, you know that shortfin mako sharks—that’s the species of mako that typically swims through our slicks—isn’t doing very well. 

Today, we’re catching smaller, and quite a bit fewer, makos than we did twenty-five years ago.

The fishing club that I belong to has about 100 members, most of them very competent anglers.  None of them weighed in a mako this year.  I haven't killed one--by choice--since 1997.

And if you’ve spent much time reading this blog, you’ll know that, two years ago,  the International Commission for the Conservation of Atlantic Tunas came to the conclusion that makos are in serious trouble.  You’ll also know that ICCAT ultimately adopted conservation measures that are unlikely to rebuild the population at any time soon—probably not within my lifetime—and that when final mako regulations were adopted by the United States, they represented the bare minimum level of regulations needed to keep the United States in compliance with its ICCAT obligations.

I’ve done a fair amount of shark fishing since ICCAT first warned that makos were in trouble, and I’ve seen nothing to make me feel good.  A 20-fathom spot where I once had a 6-mako day, and frequently caught three or four on a trip, reluctantly yielded a handful of fish on a handful of late-season trips.  The summer mako fishery, which used to be good there, has completely dried up.

Another spot, further away and in deeper water, was about as close to a sure thing as you can find during the last week in June.  The last time I went there, the ocean held enough bait that bluefin tuna smashed the surface all through the day, but the only shark that we saw in a full day of fishing was one good-sized sandbar; the makos, and even the blue sharks, were gone.

Earlier this year, ICCAT released a stock assessment update for the shortfin mako.  The update (which won’t be finalized until the ICCAT plenary session is held later this year) notes that

“All three models projected that spawning stock fecundity, defined as the number of pups produced each year, will continue to decline until approximately 2035 even with no fishing, because the cohorts that have been depleted in the past will age into the mature population over the next few decades (the median age at maturity is 21 years).”  

The assessment scientists ran the model three different times, including somewhat different assumptions about stock behavior in each run.  Again, no matter how they looked at things, it was all bad news.

“For runs 1 and 2, a [total allowable catch] of between 800-900 [metric tons], including dead discards, resulted in >50% probability of…the joint probability of [a fishing mortality rate that is below the rate that results in maximum sustainable yield] and [spawning stock fecundity that is above the spawning stock fecundity necessary for the biomass to produce maximum sustainable yield] by 2070.  Run 3, which assumed a low productivity stock-recruitment relationship, showed that only [a total allowable catch] of between 0 and 100 [metric tons] (including dead discards) resulted in a >50% probability of [achieving that desired result] by 2070.  The Group emphasized that fishing mortality rates had to be well below [the fishing mortality rate that would achieve maximum sustainable yield] to see any rebuilding.  [emphasis added]”

Since the pelagic longline fleet catches a lot of shortfin makos, and about a quarter of those will die before or shortly after release (assuming that the longliner opts to release them at all which, despite any laws mandating retention, is not a foregone conclusion, particularly in non-United States fleets, where most of the damage is done), restricting landings to just 800 or 900 metric tons is going to be difficult, and restricting landings to 100 metric tons or less is probably going to be a practical impossibility.

But even if such reductions could be achieved, it will take about 50 years to return the shortfin mako stock to something resembling a healthy level of abundance.

Which, in turn, means that I, and probably most of the people reading this blog, will never see a healthy mako population in our lifetimes.

I’m not sure just how that makes me feel.  Am I angry?  Or am I just sad?  Or do I feel a little of both?

At least I was around for the good times, three decades ago and more, when makos were far more abundant, fishing for them was still an exciting and exhilarating sport, and the cobalt and silver beauty of a mako cruising through your chum slick was nearly an every-trip thing, so routine that we took it for granted and never really thought about how wonderful it all was.

But someone born at the turn of the century will themselves be older than I am today when—and, mostly, IF—the mako stock is restored, will have never experienced the joys of a healthy stock and, thanks to years of mismanagement, never will.

That sort of thought does, in fact, make me sad.

But when I think of the very good chance that fishing mortality won’t be brought low enough to rebuild the population, and that there’s a chance that the shortfin mako will, in time, just face away, that makes me angry.

Very much so.

Because that sort of beauty should never be scrubbed from the sea, just because not doing so might hurt someone’s business.

This fall, there is a chance that things might go the mako’s way.

ICCAT will be again be debating the shortfin mako’s fate when it meets next week in Mallorca, Spain. 

On October 21, the nation of Senegal submitted a draft recommendation to ICCAT that, among other things, would prohibit all shortfin mako shark landings, and require any that are caught to be, if possible, released alive.  It’s difficult to predict whether such recommendation might be adopted.

The biggest question is what the European Union will do. 

Right now, despite the shortfin mako’s depleted state, neither the European Union nor ICCAT has established any catch limits for the species.  Instead, the catch is regulated only by size limits and restriction on the gear used to catch the sharks.  The European Union is the single largest harvester of makos, and that, in turn, is largely due to landings by Spanish vessels.  A spokesman for the Shark Trust, an advocacy group headquartered in the United Kingdom, noted that

“Spanish fleets have consistently, year in and year out, taken more makos than any other country.  All the while, the EU has ignored countless warnings about overfishing and has failed to even limit the amount of makos that can be landed…It is time to finally put an end to reckless mako fishing policies and begin leading ICCAT toward adopting the clear and urgent scientific advice.”

While we can only hope that the European Union will act to protect makos, there’s no guarantee that the United States will protect the shark, either, even though it has a relatively small commercial mako fishery.  

The U.S. has an active recreational fishery, and its current recreational delegate to ICCAT is a very strong advocate for the recreational fishing industry.  In addition to that, the United States has a decidedly checkered history when it comes to shortfin mako conservation; when the parties to the Convention on International Trade in Endangered Species decided to include the shortfin mako on its appendix of protected species last August, the United States was one of the few nations that opposed the move.

Thus, the shortfin mako’s future remains very much in doubt.  

We can only hope that fisheries managers, both here and at ICCAT, extend appropriate protections before the fastest, and arguably the most beautiful, shark in the sea disappears.

STRIPED BASS ADDENDUM VI--WHERE DO WE GO FROM HERE

About two weeks ago, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Mangement Board adopted Addendum VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, a management measure intended to end overfishing and reduce fishing mortality to the target level, and incidentally to rebuild the striped bass spawning stock—although not within the 10-year deadline prescribed in the management plan.

Addendum VI includes four major provisions.  It requires both the recreational and commercial sectors to reduce fishing mortality by 18 percent.  To achieve such reduction, it requires all coastal states to adopt recreational regulations that include a 1-fish bag limit and a 28 to 35-inch slot limit, and requires all Chesapeake Bay jurisdictions to adopt recreational regulations that include the same 1-fish bag and an 18-inch minimum size.  And to reduce release mortality, it requires all states to adopt regulations that would mandate circle hooks for all anglers fishing with bait for striped bass.

That seems pretty cut-and-dried.  

But then the Management Board did one other thing:  It adopted a provision that allows every member state to ignore the size and bag limits included in Addendum VI in favor of regulations of such state’s choosing, provided that in doing so, the state managed to achieve an 18 percent reduction in its own striped bass fishing mortality, compared to what such mortality was in 2017.

By adopting that conservation equivalency provision, the Management Board didn’t exactly take everything back to Square One, as an 18 percent reduction is still required.  But it did compromise Addendum VI’s effectiveness, and it assured that today, less than six months from the effective date of the Addendum, anglers all along the striper coast still have no idea of what regulations will look like in the upcoming year.

Having said that, I know what I’d like to see. 

As I noted before the last Management Board meeting, I thought that striped bass would gain the greatest benefit from a 35-inch minimum size, that would allow the 2011 and the incoming 2014 and 2015 year classes the greatest opportunity to spawn a few times before being vulnerable to harvest.  While I conceded that a slot limit might be a rational way to manage a healthy stock, I believed—and still believe—that it is the wrong way to go about trying to rebuild a depleted female spawning stock biomass.

Since I’ve always made my opinion on slots very clear, it might surprise folks to learn that I now believe that the best thing that could happen would be for every coastal state to adopt the same 28 to 35-inch slot that the Management Board adopted in Addendum VI.

That belief doesn’t mean that I’ve experienced some sudden enlightenment, and have now become an acolyte worshipping at the slot limit’s altar.  In fact, it means nothing of the sort. I still believe that a 35-inch minimum was the right way to go.

But the Management Board felt otherwise, and there is now no chance at all that a 35-inch minimum will be adopted coastwide.  And it’s that truth that drives my current belief.

I still think that a slot limit will focus fishing pressure, and harvest, on the very year classes that we need to rebuild the spawning stock.  I still believe that it will result in fewer fish surviving to reach older ages, and that the stock will be in greater jeopardy, and recover more slowly, as a result.

But I also think that a situation in which some states adopt the Addendum VI slot, some states adopt a 35-inch minimum, and some states adopt some other set of supposedly “conservation equivalent” regulations represents the worst of all worlds.

Think about it.

The supposed virtue of a slot limit is that it protects the oldest, largest and most fecund females in the spawning stock, although perhaps at the cost of higher removals of recently matured females.  And the virtue of a high minimum size is that it allows bass recruited into the spawning stock to reproduce at least two or three times before they become subject to harvest.

But if we end up in a situation where some states adopt a 28 to 35-inch slot, while others adopt a 35-inch minimum size, both of those benefits disappear.  The states with the slot will be allowed to hammer the newly-mature females as they run the 28 to 35-inch gauntlet.  And just as those fish grow large enough to be immune to harvest in the slot-limit states, they grow large enough to be killed in wholesale numbers as they swim into the waters of those states that adopted a 35-inch minimum.

For the bass, it’s a lose-lose proposition, as fish over 28 inches long will always remain unprotected somewhere along the course of their coastwide migration.

Given that situation, the priority is no longer putting in a 35-inch minimum somewhere, to protect striped bass in a particular state, but to adopt uniform regulations everywhere so that some portion of the spawning stock bass actually is protected wherever they happen to swim, throughout the course of the year.

Unfortunately, conservation equivalency makes even that modest aim a goal that is unlikely to be achieved.

I discussed the reason for that a little over a week ago, too.  The 18 percent reduction is based on a coastwide standard.  However, the slot limit adopted in Addendum VI will have different impacts in different states.  Some states, which see a lot of smaller fish, but few large ones, might experience a very small real-world reduction.  On the other hand, there are estimates that New Jersey, which lands more recreationally-caught striped bass than any other state on the coast, would experience about a 40 percent reduction if the slot was adopted.

Thus, it seems likely that New Jersey will adopt some other regulatory scheme that will allow it to reduce fishting mortality by only 18 percent—less than half the reduction that New Jersey needs to make if Addendum VI is to successfully reduce fishing mortality to the target level. 

Addendum VI started out with only a 50 percent probability of success; that’s not as bad as it sounds, because what it means is that there is about an even chance that the actual fishing mortality will end up either above or below the target level. 

But if the largest striped bass harvester on the coast intentionally refuses to make the cuts needed to achieve Addendum VI’s goals, and instead adopts regulations that cut mortality by less than half of the amount needed, then Addendum VI will no longer have a 50% probability of success.  At that point, the probability curve will be skewed toward failure, with a much greater chance that the actual reduction will fall short of 18 percent.

So, once again, the need is for uniformity.  Unless every state accepts its responsibility to reduce fishing mortality to the level needed to cut coastwide fishing mortality by 18%, Addendum VI is likely to fail.

At that point, the failure of the striped bass stock might not be far behind.

So what are the chances for such coastwide uniformity?  

Probably, pretty low.  There is a good chance that New York and the New England states will stick together, as they did in 2015, and adopt consistent regulations—almost certainly the 28 to 35-inch slot.  After that, the prospects begin looking worse.

Historically, New Jersey has played the conservation equivalency game like a master, always managing to find ways for its anglers to kill more and smaller fish than its neighbors, regardless of the impact on the stock. 

But there have been big changes in the New Jersey governor’s mansion since the state defied the ASMFC to adopt noncompliant recreational summer flounder regulations in 2017, and destroyed once and for all the regional management structure that was showing real promise to stabilize summer flounder regulations in the New Jersey/New York/Connecticut region.  

Those changes allow for at least a scintilla of hope that the new administration, and a new salt water fisheries chief, will lead New Jersey to a more enlightened and more cooperative approach to fisheries management.  However, that hope must be balanced against the reality that many of New Jersey’s recreational fishing organizations will fight tooth and claw to keep that from happening.

It's impossible to say which side will win.

Down in the Chesapeake, Virginia has proven itself to be a leader in striped bass conservation, while its neighbor Maryland is still seeking to reach new lows in its efforts to stave off harvest reductions.  The talk coming out of that state is that its Department of Natural Resources intends to make private recreational fishermen shoulder just about all of the conservation burden, and allow the state’s watermen to conduct business as usual. 

Those reports find some confirmation in a question that Michael Luisi, a Maryland fishery manager, made at the April 2019 Management Board meeting, when he asked,

“…if it were going to be the cast at some point that we were considering perhaps removing the commercial fishery from being part of this addendum, due to its, I guess size in comparison to the recreational fishery.  Would it be possible then to calculate reductions solely based on a recreational fishery; if that were going to be what was going to take the reductions?  [emphasis added]”

Regulations that would place the entire onus of conservation on the backs of private recreational fishermen would look quite a bit different from the 1 fish at 18 inches adopted by the Management Board for the Chesapeake Bay. 

Of course, there was little chance that Luisi was going to accept the 1 at 18 inch standard anyway.  He always makes a big fuss over reducing release mortality, saying at the April meeting that

“There is a problem that exists; which was discussed in depth back in February, and for us that problem is the dead discard issue in the recreational fishery…

“I’m a little disappointed and slightly discouraged that we’re sitting here talking about options to increase minimum size limits across the board; only knowing that it’s going to exacerbate the situation that we are currently in with dead discards being as high as they are.  I really hope that those examples are just examples of what things we could put forth in this addendum to try to be creative in an approach to solving a problem.”

But when the Management Board handed Maryland exactly what Luisi seemed to be looking for, an 18-inch minimum size and single-fish bag limit that should sharply reduce release mortality, that solution wasn’t welcomed with open arms.  

Instead, Maryland has been contemplating a combination of “conservation equivalency tools” that appears to have been crafted either in a fever dream or during a bad acid trip, that not would not only make anglers responsible for the entirety of the conservation effort, but do it in a matter almost certain to fail, with measures that can’t be easily or accurately quantified, such as prohibiting fishing for striped bass after 10:00 during August.

But, as bizarre as the proposed measures were, they would allow Maryland anglers to kill two striped bass--at an increased size limit, of course, throughout most of the season.

The entire list, presented at a Maryland Sport Fishing Advisory Commission meeting on October 22, is depicted here.

Hopefully, if such a hodgepodge was ever presented to the ASMFC’s Atlantic Striped Bass Technical Committee for approval, it would be shot down in flames.  It was heartening to hear Katie Drew, one of the ASMFC’s technical experts, say at the August Management Board meeting that

“I would say I think the [Technical Committee] is going to be hesitant to endorse things that are difficult to quantify.  Things like educational programs or using circle hooks, or things like that where its harder for us to say what is the actual effect of these measures this educational approach on actually reducing release mortality.

“Something like season limits or closed days, if you actually close the fishery during days when temperature is too high, as opposed to just saying, maybe don’t go fishing.  That I think the [Technical Committee] and [Plan Development Team] would be much more open to.  I think we’re focused on things that will have a concrete, demonstrable quantitative benefit to reducing how many fish you’re throwing back alive.”

Still, the fact that conservation equivalency makes such piecemeal proposals even possible, and the possibility that even Maryland’s mess might be accepted as conservationally equivalent, demonstrates why states must strive for uniform management measures.

If states succeed in unifying behind a set of reasonable rules, what comes next for striped bass will probably be a slow rebuilding that, assuming average recruitment, might eventually rebuild the population.

But if the states think only of their own short-term benefits, and not the overall health of the spawning stock, what comes next will be more of the same:  A stock that languishes at low abundance levels, always flirting with the point where depletion, coupled with consecutive years of below-average recruitment, could push it over the edge from merely overfished to something far worse, full collapse.

  

MID-ATLANTIC FISHERY MANAGEMENT COUNCIL, ASMFC ADDRESS RECREATIONAL FISHERIES ISSUES

When the Mid-Atlantic Fishery Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission’s (ASMFC) Bluefish and Summer Flounder, Scup and Black Sea Bass Management Boards (Management Boards) held a series of joint meetings early in October 2019, they addressed a number of recreational fisheries issues that, in their range and scope, probably hasn’t been equaled since the Sustainable Fisheries Act of 1996 first required the federal fishery management councils to end overfishing and rebuild overfished stocks.

Revised recreational catch estimates drive the discussion

As was true two decades ago, the current issues have arisen out of a single event, although this time, that event wasn’t new legislation, but instead was the revision of recreational catch and effort estimates, as reported by the Marine Recreational Information Program (MRIP).

For many years, the number of fishing trips that anglers took each year was estimated through the use of a telephone survey, but such survey proved unreliable, particularly as the use of cell phones became more widespread. To improve the effort estimates, MRIP now relies on a mail survey, which has proven to be far more accurate. In January 2017, the National Academy of Science released a report, Review of the Marine Recreational Information Program, in which it noted that “The methodologies associated with the current Fishing Effort Survey, including the address-based sampling mail survey design, are major improvements from the original Coastal Household Telephone Survey that employed random-digit dialing to contact anglers.”

The improved effort survey unexpectedly determined that recreational fishermen fish much more, and catch many more fish, than fisheries managers had previously believed. That wasn’t necessarily a bad thing, although some members of the recreational community initially panicked when they heard the new numbers, believing that they meant that anglers were engaged in wholesale overfishing of just about every stock.

That wasn’t really the case.

It turns out that recreational catch estimates are incorporated into every assessment of recreationally important fish stocks. In particular, they are included in virtual population analyses, which use historical catch estimates to calculate the past size of fish populations; such calculations are then projected forward to assess the populations’ current state. Such analyses are rooted in the notion that, if fishermen are catching more fish than believed, then the fish populations must be larger than previously believed as well, or else they would not have been able to support such higher level of landings.

That’s exactly what was the MAFMC and the Management Boards discovered in October, when they met to consider a recent operational assessment of the bluefish, scup and black sea bass stocks and set harvest limits for the 2020 and 2021 fishing years. In every case, the operational assessment found that recreational catch and effort was higher than previously thought, and in every case, that finding led to higher estimates of population size. But that’s where the commonality stopped, for those findings had very different implications for each of the species involved.

Bluefish are overfished

The operational assessment probably had the greatest impact on the bluefish fishery, which it found to be overfished, although overfishing was not occurring in 2018, the operational assessment’s terminal year. While the operational assessment found bluefish biomass to be higher than previously believed, it also determined that the biomass target and threshold should be set at levels nearly twice as high as they were before.

The operational assessment also revealed that the recreational bluefish landings were about 3.3 times higher than former estimates. Such an increased level of removals had a very significant impact on the operational assessment, and led to the conclusion that the stock had become overfished. But there was one other interesting aspect to the higher catch estimate. It appears that recreational releases increased at a higher rate than the recreational catch itself, and as a result, release mortality, which is thought to equal about 15% of all bluefish released, also increased.

The recreational discard issue also involved another twist. The Northeast Fisheries Science Center (Science Center) determined that, for many years, the total weight of the dead discards has been badly underestimated.

For many years, the Greater Atlantic Regional Fisheries Office (GARFO) merely took the average weight of the bluefish encountered during the MRIP creel survey, and multiplied that by the presumed 15% of the released fish that do not survive. But the Science Center looked at some data from the American Littoral Society’s Fish Tagging Program and from three states’ voluntary angler surveys, and found that anglers tended to release larger bluefish, and keep the smaller ones.

That tendency to keep the smaller fish and release the large ones wasn’t reflected in the GARFO estimates, but any bluefish angler would probably believe that the Science Center’s finding was right.

Bluefish can be an oily, strong-tasting fish, which grow oilier and stronger-tasting as they grow larger and feed on forage fish such as menhaden. Thus, most recreational fishermen, if they keep any bluefish at all, usually do prefer to keep the smaller fish, which are comparatively mild-flavored. However, if the MAFMC and Bluefish Management Board accepted the Science Center’s release mortality figure, they would be compelled to reduce the recreational harvest limit from 11.62 million pounds in 2019 to just 3.62 million pounds in 2020.

While the 3.62 million pound harvest limit probably represented the best available science, it was clear that MAFMC and Bluefish Management Board members weren’t prepared to slash landings to such a low level. They chose to accept the GARFO estimate of release mortality, which then allowed them to set a recreational harvest limit of 9.48 million pounds, just 2 million pounds less than the limit in 2019.

Because of the higher, revised recreational landings estimate, which showed that anglers landed their entire bluefish allocation, there will be no transfer of supposedly unused recreational quota to the commercial sector in 2020, which will be the first year since 1998 when such transfer does not occur. The higher estimate almost certainly also means that the pending allocation amendment which, among other things, would have permanently transferred some recreational quota to the commercial sector, will not move forward in its current form.

Because the bluefish stock is overfished, conservation provisions in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) require that the MAFMC initiate a rebuilding plan that will restore the stock to the target level within ten years. Such plan must be implemented within two years after the MAFMC is formally notified, by the Secretary of Commerce or his designee, that the stock is overfished. Such notification is expected to occur in December 2019. Once such notification is received, the MAFMC will probably expand the allocation amendment to include the rebuilding plan, at which point allocation will become a secondary consideration.

2020’s reduced recreational harvest limit will probably lead to more restrictive regulations. The fact that 2019 recreational bluefish landings through August 31 were about 50% higher than they were for the same period in 2018 makes such added restrictions even more likely, even before the depressed state of the stock is taken into consideration.

Scup anglers squeezed by small quota

It appears that larger than expected scup landings will also force scup anglers to face substantial landings reductions in 2020, even though the operational assessment found spawning stock biomass to be at about 200% of the target level at the end of 2018. Any such recreational catch reductions won’t be driven by the needs of the stock, or by Magnuson-Stevens, but rather by a fishery management plan that allocated only a 22% of the overall catch to the recreational sector.

The commercial fishery, which is allocated 78% of the catch, has been chronically unable to catch its entire quota. Between 2015 and 2018, it only landed between 55% and 84% of its scup quota. There is just too little demand for the fish, which fishermen sell for about $0.70 per pound, far less than they receive for fish such as black sea bass or summer flounder, which can generate ex vessel prices in the $3 to $4 range.

As a result of the commercial underharvest, scup are not experiencing overfishing despite the high recreational catch. Even though the annual catch limits will be reduced slightly in 2020 and 2021 in response to poor spawning success in 2016, 2017 and 2018, the commercial underage, if transferred to the recreational fishery, should still be large enough to avoid harsh restrictions on anglers.

Unfortunately, the fishery management plan, as currently written, doesn’t allow for such transfers, and there is no time to amend the plan prior to the 2020 fishing season. GARFO staff are hoping to find a legally and procedurally viable solution to the problem before then. If they can’t, scup anglers could be facing very restrictive regulations next year, even though the scup stock continues to thrive.

Black sea bass biomass declines

Black sea bass anglers will probably also be facing more restrictions in 2020, even though the spawning stock biomass was about 240% of the target level at the end of 2018. In this case, recreational landings reductions will be driven by a trifecta of higher than expected landings, high levels of angler effort and a black sea bass spawning stock that, while still large, has been steadily declining in size since 2014.

It is clear that recent recruitment won’t maintain current black sea bass abundance. The 2015 year class, once thought to equal the huge year class of 2011, turned out to be only about half its size, while the 2017 year class was the smallest in the entire 30-year time series. While, thanks in large part to the revised recreational catch figures, the recreational harvest limit will be significantly larger in 2020 than it was in 2019, it will begin to decline after that in concert with declining black sea bass abundance.

Even with the higher 2020 catch limit, recreational landings will probably need to be reduced by about 30% to prevent overfishing. Unless angling effort declines, further restrictions on recreational black sea bass fishing are inevitable as the stock continues to decline toward the target abundance level.

Is reallocation part of the answer?

Some members of the recreational fishing community have criticized the revised recreational catch and effort estimates because they are likely to lead to additional restrictions on anglers. However, the same revised estimates could also lead to further increases in recreational harvest limits.

That’s because recreational landings data dating as far back as 1981 have been revised upwards. Those upward revisions include the so-called “base years” used to determine the recreational and commercial allocations. It now appears that such allocations were based on data that underestimated the recreational share of the landings.

If allocations were revised to reflect what are now believed to be more accurate recreational landings estimates, anglers would receive a larger share all of the recreationally-important species managed by the MAFMC. That might be particularly important in the case of scup, which would see anglers’ share of the catch increase substantially, from 22% to 35%. Such an increase might be enough to eliminate the need for potentially crippling harvest restrictions on anglers, while doing little harm to the commercial fishery, since it typically underharvests its allocation.

The increase in anglers’ share of other fisheries would be far smaller, but still significant. The recreational summer flounder allocation would increase from 40% to 45% of landings, while the recreational share of black sea bass landings would increase from 51% to 55%. In the case of bluefish, the recreational allocation could increase from 83% to 90%.

It’s impossible to predict whether any or all of those allocation changes will be made. The MAFMC and the ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board voted to initiate an amendment to consider the allocations of summer flounder, scup and black sea bass at the October meeting.

The reallocation effort will undoubtedly be opposed by commercial fishermen, although it could be argued that any allocation change based on the revised MRIP estimates is not so much a true reallocation than a correction, with the new allocation merely representing what the recreational and commercial catch actually was during the long-established base years.

In any event, the reallocation, should it be made, will not happen soon. The best estimate is that the amendment will take about two years to complete.

Anglers are thus less focused on any possible reallocation than they are on the December joint meeting of the MAFMC and the Management Boards, when the new recreational harvest limits will be compared to anglers’ estimated harvest in 2019, and regulations governing the 2020 recreational fishery will first be proposed.

It’s still too early to know what those regulations will look like, but given the discussion at the October joint meeting, it seems likely that they could be restrictive enough to incite many anglers to support the reallocation effort.

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

OMEGA PROTEIN ARROGANCE LEADS TO ASMFC NON-COMPLIANCE VOTE

Some people—and some companies—just don’t know where to draw the line.

As a result of one such failure to recognize acceptable boundaries, the Atlantic States Marine Fisheries Commission found Virginia out of compliance with a provision of its menhaden management plan, and will soon forward that finding to the Secretary of Commerce, who is empowered to shut down the state’s menhaden fishery.

In November 2017, the Atlantic States Marine Fisheries Commission’s Atlantic Menhaden Management Board adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden.  Included among that Amendment’s provisions was a 51,000 metric ton cap on the amount of menhaden that the industrial “reduction” fleet might take from the Chesapeake Bay each year.

The so-called “Bay Cap” was adopted as a precautionary measure, both to assure the health of the species in Chesapeake Bay, which is an important menhaden nursery area, and to better assure that there are enough menhaden in the Bay to provide forage for the many fish in the Bay and elsewhere on the coast that depend on the species for much of their diets. 

One of the goals of the Bay Cap was to prevent a situation in which menhaden were depleted in any section of the Bay, to the detriment of the fish and other predators that fed on them.  The possibility that such localized depletion could actually occur was actively debated, and the available science on the issue was inconclusive.  However, John McMurray, Legislative Proxy from New York, expressed many Management Board members feelings when he said

“Setting a cap at 51,000 metric tons is essentially the status quo; as that’s what they’re catching now.  Industry has consistently underperformed the cap.  I would also note that if the entire cap were landed where its set now that is about 100 million additional pounds, taken out of what I consider to be a very small area.  That would most certainly have an impact on menhaden in that region and certainly the predators that eat them.”

Public support for the Bay Cap was overwhelming, and the only real opposition on the Management Board came from Virginia, which wasn’t too surprising, as Reedsville, Virginia is the home of the Omega Protein Corporation, which operates the only menhaden reduction fleet on the Atlantic Coast, and is also responsible for the great majority of the menhaden harvest in East Coast waters—including Chesapeake Bay.

The Virginia state legislature, which has the sole responsibility for menhaden management in that state, refused to amend the relevant state statute to reflect the new 51,000 metric ton cap.  As a result, at its May 2018 meeting, the Management Board considered a motion to find Virginia out of compliance with the menhaden management plan, an action that could ultimately shut down all menhaden fishing in Virginia’s waters.

But the motion presented problems.  Shutting down Virginia’s menhaden fishery, as a consequence of its noncompliance, would ultimately require action by the Secretary of Commerce, Wilbur Ross.  And less than a year earlier, Ross had failed to uphold a noncompliance finding with respect to New Jersey’s recreational summer flounder fishery, which arguably presented a more compelling case than did Virginia’s failure to comply, for as a practical matter, Virginia’s menhaden landings had remained below 51,000 metric tons for a number of years.

As a result, the Management Board decided to postpone action on the noncompliance motion until its August 2018 meeting, in order to give Virginia some time to put its own house in order.  In voicing support for the motion to postpone, Richard White, the Governor’s Appointee from New Hampshire, noted that

“I think [the motion] also allows Omega Protein to show good faith with this Commission; and not pursue catching the Bay cap.  I think it gives them a chance to show they want to work with the Commission to allow proper regulations to come into effect.”

Three months passed.  The time for the August meeting came around, but the Virginia Legislature refused to act.  That failure was something of an embarrassment for the newly-elected Virginia governor, Ralph S. Northram, who wrote a letter to ASMFC that read, in part,

“As you know, the General Assembly remains the authority to set catch limits for Atlantic menhaden in the Commonwealth, despite having delegated this authority to our Marine Resources Commission for all other fish species.  My staff and I worked diligently with the General Assembly last session to develop and pass legislation that would achieve our goal of compliance with Amendment 3 while at the same time offering a path to further discussion with the Commission about some of these management measures.  Unfortunately, we were not successful.

“I remain hopeful that we can come to an agreement on legislation that honors our commitment to responsible management of shared fishery resources.  Until that time, it is my view that the prospect of formal noncompliance action by the Commission should be taken as an instruction not to exceed the harvest limits set under Amendment 3.”

 In view of Virginia’s historical failure to harvest anything near 51,000 metric tons of menhaden in the recent past, and in view of the Virginia governor’s efforts to come into compliance, Maryland fishery manager David Blazer moved to substitute a motion that would not recommend a noncompliance finding, unless Virginia harvested more than 51,000 metric tons of menhaden from the Chesapeake Bay.  It would allow Virginia a little more time to solve its own problem, and seemed to create no conservation issues, given Virginia’s recent low Bay landings.

The motion to substitute received a mixed response from Management Board members, with some seeing it as a dangerous precedent, and others seeing it as a reasonable measure to facilitate Virginia’s efforts to comply.  Although it largely went unsaid, the fear that lurked behind many Management Board members’ words was the fear that Wilbur Ross, Commerce Secretary in an administration that had exhibited chronic contempt for conservation considerations while constantly promoting short-term economic concerns, would again overturn any noncompliance finding that ASMFC might forward to him, and further undercut the ASMFC’s authority.

Those fears were justified when NOAA counsel rose to address the Management Board, saying

“I can’t speak to the propriety of this particular motion.  I won’t; this is up to you.

“If you vote it down or vote for a noncompliance, the Federal Government will take it and we will analyze it according to our process set forth in the Atlantic Coastal Act.  But I want to underscore the issue that we need to look at it through the lens of conservation.  That’s what Congress has dictated.

“…under your own Commission ISFMP Charter says that you need to find that before sending any noncompliance over you need to discuss and make a finding that the measure in question is not being followed, jeopardizes the conservation of the fishery in question.

“It is not my place to interpret your internal guidelines and your internal regulations…But I know from General Counsel’s point of view, I am interested in hearing you develop the record as to how this particular—the Bay Cap—failure to implement the Bay Cap will jeopardize the conservation of the resource.

“…The idea that a noncompliance situation would occur, or has occurred because of an inability of a Legislature to implement a regulation is absolutely not unique.  What is unique in the approximately 20 or 24 noncompliance referrals we’ve had, it depends on how your group them, sometimes two states do it together.  What is unique is that this would be the first time ever in the history of the Atlantic Coastal Act and the Striped Bass Act, which is really the genesis of this noncompliance provision in the Atlantic Coastal Act.  It would be the first time ever that the Federal Government would receive a noncompliance referral for a fishery that is not overfished, overfishing is not occurring and there is record evidence from the leadership of the Commission that the measure is not related to conservation.  That is unique.”

It was a pretty clear statement that Commerce was not buying the local depletion argument, and a pretty clear sign that any noncompliance finding forwarded to the Secretary at that time would be overturned.

The Management Board heard that statement loud and clear.  While Mr. Blazer’s motion was defeated with 6 votes in favor and 10 against, the motion to find Virginia out of compliance was postponed once again, this time to the February 2019 Management Board meeting.  

But when February rolled around, the situation remained unchanged.  Virginia was still out of compliance, but most Management Board members still believed that if they supported a noncompliance finding, Ross would simply overturn it once that finding was forwarded to Commerce for final action.

As a result, the noncompliance motion was indefinitely postponed, and would only be revisited if Virginia’s Chesapeake Bay landings exceeded 51,000 metric tons.

The ball was now in Omega Protein’s court.  It had a perfect opportunity to, in Mr. White’s words, “show good faith with [the] Commission and not pursue catching the Bay cap” and by doing so “show they want to work with the Commission to allow proper regulations to come into effect.”

Of course, anyone who has spent any time in the corporate world knows what happened next.  Apparently feeling that they had a strategic advantage in the situation, and had conservation advocates overwhelmed, they increased their landings in Chesapeake Bay. 

Omega could have increased its recent level of landings substantially and still remained within the 51,000 metric ton Bay Cap, but it chose not to do so.  Instead, on September 12, 2019, it issued a statement announcing its intention to exceed the Bay Cap.  The announcement began

“Omega Protein strictly complies with Virginia law and strives to comply abide by all recommendations of the Atlantic States Marine Fisheries Commission (ASMFC).  However, the abundance of menhaden in the Chesapeake Bay this year combined with adverse fishing conditions outside Bay waters, particularly late in the season, means the Company will exceed the ASMFC’s arbitrarily low and unscientific cap recommendation on harvest in the Bay for the 2019 season.  The Company will comply with the existing Bay cap codified in Virginia law.  [emphasis added]”

The announcement was a clear shot across the ASMFC’s bow.  By twice referring to the ASMFC management plan as a mere “recommendation,” as opposed to a binding statute, Omega belittled the ASMFC’s role in fisheries management and ignored the authority granted to the ASMFC by Congress in the atlantic Coastal Fisheries Cooperative Management Act.  It suggested that the Virginia statute was somehow superior to the management plan, even though such statute, may have been maintained in defiance of federal law.

The Omega Protein statement reflected the arrogance of a corporation that seemed to believe that it held all the cards.  And it represented one final step too far for the members of the Management Board, who had previously angered many members of the angling and conservation communities with their continued efforts to reach a nonconfrontational accord with Virginia over the noncompliance issue, and now found Omega Protein treating the Management Board’s actions with seeming contempt.

Even the Governor of Virginia had run out of patience with Omega Protein’s behavior.  The day after Omega announced its intention to ignore the Bay Cap, he wrote a letter to Robert Beal, ASMFC’s Executive Director, notifying him of Omega’s actions.  The letter began

“I wish to express my extreme disappointment with Omega Protein for recently exceeding the Atlantic States Marine Fisheries Commission’s (ASMFC) ‘Bay’ cap of 51,000 metric tons on reduction harvest of Atlantic menhaden from the Chesapeake Bay.”

Jim Gilmore, Chairman of the Atlantic States Marine Fisheries Commission issued a memo to all ASMFC commissioners and their proxies, which read, in part,

“Omega Protein notified the Commission on September 3, 2019 of their intent to exceed the 51,000 ‘Bay Cap’ which was adopted under Amendment 3 of the Fishery Management Plan…Commission leadership communicated with Omega on September 3^rd emphasizing the importance of complying with the cap reminding them ASMFC has attempted to work cooperatively with the company over the last two years to find middle ground during this transition from single-species management to the implementation of Ecosystem Based Reference Points (ERP’s).  Complying with the Cap was centric to those “good faith” efforts.  Commission leadership has also reminded the Commonwealth and Omega of the plan provision that requires “payback” of ‘Bay Cap’ overages.

“Unfortunately, Omega has decided to not comply and exceeded the cap on September 6^th despite multiple communications to dissuade them.  Additionally, Omega issued a press release on September 12^th to justify their actions.  I will not address the details of the release, since it contains inaccuracies and biased statements, other than their statement that they abide by all “recommendations” of ASMFC.  As you are aware, adopted ASMFC Management Plan measures are legally binding requirements, not arbitrary recommendations.

“…We will be adding a short amount of time to the October 28^th Atlantic Menhaden Board meeting for discussion and possible action on this issue.  I request that each of you spend some extra time to review all the background, so we are all prepared for the most appropriate actions moving forward.”

The gloves were now off.  The ASMFC had offered an olive branch to Omega Protein, and an opportunity to work cooperatively to manage the menhaden resource.  Omega tossed that olive branch away with contempt.

Omega’s arrogant rejection of ASMFC’s offer didn’t go over too well.

When the Management Board meeting began on October 28, John McMurray from New York was quick, almost eager, to put a motion on the table to find Virginia out of compliance.  

He argued that the Bay Cap was necessary for conservation, that localized depletion was a real issue (remember that research on the issue was inconclusive; it did not find that such depletion didn’t exist), and that there was scientific research that found that low numbers of menhaden were bad for the Bay’s stiped bass.  He noted that the Management Board shouldn’t worry about the Secretary of Commerce overturning the noncompliance finding and undermining the ASMFC’s authority, because as a result of Omega Protein’s actions, the ASMFC’s authority is impacted regardless of what action it takes. 

Rep. Sara Peake, Legislative Appointee for Massachusetts, seconded the motion.

At that point, the debate was to begin, but the Management Board Chairman was faced with a minor problem.  Normally, the Chairman structures the debate by alternating speakers between those who support and oppose the motion.  But this time, there was no one in opposition.

Richard White of New Hampshire said that the motion presented a difficult decision, but that it was time for the ASMFC to take a stand.  He observed that

“the company could have been good stewards”

and chosen not to exceed the Bay Cap, but that they ichose otherwise.

Robert Ballou, a Rhode Island fisheries manager, noted that he was

“deeply disappointed in Omega’s actions,”

and wanted to be sure that payback for the overage would be deducted from the Bay Cap next year.

Other Management Board members also commented, but perhaps the most surprising commentary came from Steven Bowman, Virginia’s fisheries manager.  He noted that the stigma of being found to be in noncompliance was

“not a good position”

for his state to be in.  He noted that the Virginia governor and his administration had tried to do the right thing but that they

“can’t impose what we believe is the right thing to do”

on the Virginia Legislature.  He said that the only option is to move forward with the noncompliance motion, and observed that

“This company [Omega Protein] had an opportunity to be a good partner and ride the boat with us a little longer,”

until the ecosystem based reference points were rolled out next year, but instead chose a more confrontational course.

It was probably the first time in the history of the ASMFC that a state fisheries manager asked a Management Board to bring a noncompliance finding against his own jurisdiction.

The noncompliance motion passed unanimously, with only the two federal agencies, the National Marine Fisheries Service and the Fish and Wildlife Service, abstaining.

At that point, the motion went to the Interstate Fishery Management Plan Policy Board.  Again, there was no opposition.  Jason McNamee, the Rhode Island fisheries manager, countered Omega Protein’s argument that there was no science supporting the Bay Cap, noting that studies have connected natural mortality in striped bass with the size of the menhaden biomass. 

Another Rhode Islander, Eric Reid, the Legislative Proxy, disputed Omega’s contention that they had to fish in the Bay and exceed the Bay Cap or else keep their boats tied to the dock and not pay their workers.  Mr. Reid also owns commercial fishing boats, and noted that

“I have boats sitting at the dock, too”

when quotas are reached, and that Omega’s argument

“kind of rubs my nose in it a little bit, and I didn’t care for it.”

Now, the finding will be sent to the Secretary of Commerce, who will have to decide whether to shut down Virginia’s menhaden fishery until it adopts the 51,000 metric ton cap, or let Omega Protein get away with its flagrant overharvest.

Omega seems to believe that it will prevail, because immediately after the last noncompliance vote, it issued another defiant statement that flatly denies that there has been found out of compliance.  It begins

“As expected, the Atlantic States Marine Fisheries Commission (Commission) moved forward today with a non-compliance referral for the Commonwealth of Virginia as a result of its menhaden reduction fishery surpassing a cap on harvest in the Chesapeake Bay.  To be clear, this does not mean the Virginia has been found out of compliance.  Now concerns of stakeholders and Virginia officials over the Bay cap will be heard by the U.S. Secretary of Commerce, with advice and counsel from NOAA and NOAA Fisheries, who will make a final ruling on non-compliance.  Whatever that ruling is, Omega Protein will adhere to it.  [emphasis added]”

Given that the Atlantic Coastal Fisheries Cooperative Management Act itself describes the ASMFC state as making a “determination” that a state is out of compliance, and providing a “notification,” and not a “referral” as Omega would have everyone believe, is probably sufficient comment on the veracity of Omega Protein’s response.

So when Omega goes on to say that it tried to resolve the Bay Cap issue in good faith, that there is no scientific basis for the Cap, and that it exceeded the cap in order to keep paying its fishermen (rather than its parent company), there’s more than enough reason to question the accuracy of those statements, too.

In the short term, that may not matter.

Omega Protein’s seeming confidence that it will be exonerated by Wilbur Ross may well be justified. It’s about as hard to visualize Ross, and the rest of this Administration, elevating conservation concerns above short-term profits as it is to imagine menhaden eating striped bass, instead of the other way around.

But in the long term, this action could cost Omega Protein badly, because there are issues larger than the Bay Cap on the horizon.

When the ecological reference points come out, they will undoubtedly lead to discussions over new annual catch limits.  We don’t know what those possible catch limits might be—it’s conceivable that they could even be higher than those in force now—but there is little doubt that Omega Protein will again be arguing for the biggest possible kill.  

Given its behavior in the case of the Bay Cap, those arguments aren’t likely to fall on very receptive ears.

And yet another issue looms. 

As Atlantic herring numbers decline, fishermen in the lobster and other industries are looking for new sources of bait. 

Menhaden is an obvious choice, but right now, most of the menhaden landings go to Virginia, and the lion’s share of Virginia’s landings go to the reduction industry.

It’s not hard to imagine new allocation talks, in which the bait industry seeks to enjoy a bigger piece of the menhaden pie.  

Given how Omega Protein has responded to the Bay Cap issue, it’s not hard to believe that many Management Board members will have considerable sympathy for the bait fishermen—and no sympathy at all for the reduction fleet—when that conversation begins.

Omega has now lost one small battle at the ASMFC, and it may negate the impacts of that at the Department of Commerce.  But other fights are coming, and even if Omega ultimately prevails in this one, it may find that its arrogance will cost it far more in the future than it currently believes.