MID-ATLANTIC RECREATIONAL FISHERIES--IS STATUS QUO THE WAY TO GO?

 The Mid-Atlantic Fishery Management Council is meeting next week; as part of that meeting, on the afternoon of Tuesday, December 15, it will hold joint meetings with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass and Bluefish management boards, to finalize recreational management measures for 2021 season.

I wish them good luck, because they’re going to need it.  As a result of COVID-19, both the Council and the ASMFC management boards are largely flying blind, lacking the data they need to make informed decisions.  The pandemic disrupted the usual pattern of waterside intercepts—the in-person surveys of anglers used to determine what kind of and how many fish they encountered and might have brought home; what little data exists on that topic won’t be released until early next year.  It also disrupted the fishery-independent surveys, conducted at the state and federal level, used to determine the health of fish stocks.

So fishery managers are going to have to make their decisions without having any current information on the health of the fish stocks they’re managing, or how many fish anglers removed from those stocks during the 2020 season.

About the only thing that they’ll know with a reasonable amount of certainty is that angler effort in 2020 was roughly the same as it was in 2019 (because the effort survey is conducted by mail, and not in person, COVID-19 didn’t materially impact its operation), meaning that they can assume that if fish availability was generally the same as it was in 2019, if the size distribution of those fish were the same in both years, if anglers maintained the same harvest to release ratio in both 2020 and 2019, if anglers targeted the same species to the same extent in both years, and if regional and seasonal effort patterns were the same this year as they were in the year before, landings levels in 2020 should approximate those in the previous season.

Unfortunately, managers don’t know any of those things for sure, so if you’ve ever run a bad inlet at night, in the fog, with all of your electronics down and only a wavering compass needle to guide you, you were roughly in the same place as Mid-Atlantic managers will be at next Tuesday’s meetings.

Because of such uncertainty, both Mid-Atlantic Council staff and the various species monitoring committees have recommended that recreational management measures for summer flounder, scup, black sea bass and bluefish remain unchanged in 2021.

The question is, does that recommendation make sense, or does greater uncertainty call for a higher level of precaution?

The answer to that question may take different forms, depending on how one values regulatory consistency, fears adopting restrictions that ultimately prove unneeded, or prioritizes the wants of the recreational industry versus the needs of fish stocks.

It also depends on which particular fishery one is talking about, for all are at different levels of abundance, and experience different levels of fishing pressure.  Scup and black sea bass, for example, are at very high levels of abundance, bluefish are overfished, and summer flounder is currently hovering somewhere between its target abundance level and the threshold that defines an overfished stock. 

In addition, none of the four species have enjoyed strong recruitment over the past few years, meaning that maintaining a constant level of harvest could be setting the stage for problems a few years down the road, if more young fish don’t enter the fishery to replace the older fish that are removed.  

It’s possible that recruitment has recently gotten better—but in the absence of fishery-independent surveys that would have detected such new recruits, managers just don’t know.

Add to that the legal requirement that fishery management measures must have at least a 50 percent probability of preventing overfishing, and the managers’ task just gets that much harder.

Thus, it’s probably not surprising that status quo became the default alternative.

Whether it was the right alternative is a difficult thing to gauge.

Summer flounder might present the best-case scenario.  As a staff memo, dated November 3, 2020 notes,

“The lack of 2020 harvest information makes it difficult to assess what management changes may be needed for 2021.  While the [recreational harvest limit] for 2021 is proposed to increase by 8% from 2020 to 8.32 million pounds, it is not known how this fishery has performed thus far in 2020 relative to the current limit of 7.69 million pounds.  Summer flounder is not overfished and overfishing is not occurring, and harvest in 2019 was very close to the 2019 [recreational harvest limit]…”

Under those conditions—an 8% increase in the recreational harvest limit, which can act as a buffer to set off against any possible overages, and a stock that is believed to be increasing (which is why the recreational landings limit was increased in the first place)—maintaining status quo in the face of uncertainty seems to be a very rational decision.

The case for maintaining the recreational status quo for scup is a little more problematic. 

Last year, the Mid-Atlantic Council and Summer Flounder, Scup and Black Sea Bass Management Board allowed 2019 recreational regulations to carry over into 2020, even though that meant that anglers would probably exceed the recreational catch limit.  While that would ordinarily be a bad thing, it could be justified in this case because commercial catches have been consistently below the commercial catch limit, and that underage was expected to set off any recreational overage and keep overall catch below the acceptable biological catch established by the Council’s Scientific and Statistical Committee.  In addition, because the scup biomass stood at approximately 200 percent of target abundance, a small overage would not pose any meaningful risk to the stock.

This year, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee stated that

“The [Monitoring Committee] agreed with the staff recommendations for status quo recreational management measures for scup in 2021.  Due to the lack of recreational harvest estimates in 2020, there are no harvest projections to compare with the 2020 [recreational harvest limit].  They also agreed that the rationale for status quo recreational management measures described at the [Monitoring Committee] meeting in 2019 for 2020 measures still holds true for 2021.  This rationale included the ongoing management response to the new understanding of the magnitude of the recreational harvest based on the new MRIP estimates as well as the healthy stock status for scup.”

Maintaining the same regulations over the course of three years, during which stock abundance steadily declined, carries with it more risk than does maintaining status quo rules for a stock that, like summer flounder, is believed to be increasing. 

From a purely biological standpoint, doing so is probably justifiable, given the health of the scup stock.  But from a legal standpoint, one should probably ask whether, and how, the Monitoring Committee and/or Council staff determined that maintaining status quo rules still provided a 50 percent chance that overfishing will not occur.

That becomes a much more relevant issue in the case of black sea bass given the fact that in 2019, the Council agreed that it would not tighten recreational management measures, even though such inaction would probably result in anglers exceeding the recreational harvest limit by 26 percent and the recreational catch limit by 23 percent, and cause the overall catch to exceed the acceptable biological catch, which supposedly sets the absolute upper bound for the combined recreational and commercial catch, by 12 percent.

Because the Council merely chose not to amend existing management measures, as opposed to recommending new rules that would have led to the acceptable biological catch being exceeded, the National Marine Fisheries Service probably didn’t open itself up to legal risk when it adopted the Council’s recommendation.

However, the 2019 Operational Stock Assessment for black sea bass predicted that the stock would decline in abundance at least through 2021, with the spawning stock biomass falling from 27,659 metric tons in 2019 to 20,379 metric tons in 2021—a 26 percent decrease in just two years—with 2,320 metric tons of the overall decrease projected to occur between 2020 and 2021.

Combine status quo regulations, that were already projected to cause the acceptable biological catch to be exceeded this year, with a shrinking spawning stock biomass, and the risks of overfishing increase.  It’s notable that nowhere in the staff or Monitoring Committee recommendations is there an explicit statement that the status quo rules have at least a 50 percent chance of preventing overfishing.

Maybe they do meet that legal standard, but before moving forward with status quo rules, it would be nice to know for sure.

But the greatest cause to question the wisdom of status quo rules arises in the case of bluefish, a stock that is already overfished.  The Bluefish Monitoring Committee stated that it

“revisited the methodology used last year to project 2020 landings to provide the Council and [ASMFC’s Bluefish Management] Board with analysis on potential 2021 recreational landings.  In October 2019, the Council and Board determined that 2018 recreational landings (13.27 [million] lbs.) served as an appropriate projection of 2020 landings despite the [Monitoring Committee] recommendation to use a 3-year average of harvest.  The 2020 recreational measures (3 and 5-fish bag limit) were implemented to restrict harvest by 28.56% to achieve the 2020 [recreational harvest limit] of 9.48 [million] lbs.   For 2021, the [recreational harvest limit] has been further reduced to 8.34 [million] lbs, indicating that a 12.03% reduction in landings may be necessary to constrain harvest to the lower [recreational harvest limit].

“To project recreational landings, the [Monitoring Committee] typically uses the most recent 3-year average of landings.  The 2017-2019 average landings (20.30 [million] lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 [million] lbs.  This landings methodology indicates a potential 73.86% overage of the 2021 [recreational harvest limit] of 8.34 [million] lbs…  [emphasis added]”

The Bluefish Monitoring Committee failed to state whether it was comfortable that, even with such an overage, maintaining status quo recreational management measures would provide at least a 50% probability that overfishing would not occur, but given that the commercial fishery is expected to land just about all of its quota, the odds of overfishing occurring would intuitively seem to be fairly high.

Hopefully most folks would agree that overfishing an already overfished stock is both a bad idea and bad fisheries management.  Even with all of the uncertainties surrounding the 2020 data, in the case of bluefish, the recommendation to stick with status quo measures appears to be questionable, at best.

Yet, however questionable it might be, it is unlikely that anyone on the Council or Bluefish Management Board will choose to question it, as the both bodies have been drifting away from conservative management over the past few years, and electing options that maximize landings in the short term.

That trend will probably continue on Tuesday, although in the case of bluefish, and maybe black sea bass as well, there are good reasons why it should not.

 

WHAT MIGHT BE NEXT FOR ALASKA'S BRISTOL BAY?

 On November 25, the Army Corps of Engineers denied a permit application for the so-called Pebble Mine, which the Pebble Limited Partnership had hoped to develop in the headwaters of Alaska’s Bristol Bay. 

The New York Times described the denial as

“likely dealing a death blow to a long-disputed project that aimed to extract one of the world’s largest deposits of copper and gold ore, but which threatened breeding grounds for salmon in the pristine Bristol Bay region.”

The Times, noting that the Corps of Engineers denied a permit that was “critical” for the mine to clear Clean Water Act scrutiny, quoted Colonel Damon Delarosa, Commander of the Corps’ Alaska District, who said that the Pebble Mine was

“contrary to the public interest,”

and that

“it does not comply with Clean Water Act guidelines.”

Fishermen and conservation advocates heralded the denial. 

Chris Wood, the president and CEO of Trout Unlimited, said that

“The Corps denial of the permit for Pebble Mine is a victory for common sense.  Bristol Bay is the wrong place for industrial-scale mining, and we look forward to working with the people of the Bristol Bay region, Alaska’s Congressional delegation, the state, and other partners to permanently protect Bristol Bay and its world class victories.”

Nelli Williams, Trout Unlimited’s Alaska director, even went a little farther, saying

“The denial of Pebble’s permit is a victory for American jobs, rural communities, and a fishing and hunting paradise long threatened by this shortsighted and reckless proposal.  With this behind us, the people of Bristol Bay can start the work of ensuring the region is protected into the future from threats.”

But is the Pebble Mine truly “behind us,” or is the denial of the permit application merely one more step in a dance that has gone on for over a decade, and has caused conservationists to both exalt and despair, in turns, as past victories were overturned, new threats arose and, now, those threats, too, appear to have been defeated?

It’s difficult to say with any certainty.

Tom Sadler, assistant director of the Marine Fish Conservation Network, recently penned a blog in which he called the denial

“a possibly fatal wound to the Pebble project,”

and openly wondered whether investors would be willing to provide that project with further funding.  But he also noted that the Pebble Mine’s

“backers are seemingly relentless in their desire to push forward.”

Recognizing the fact of their relentlessness, just what could such backers do to again bring Pebble Mine back from the dead?

The first and easiest step might be to simply amend their application to address the Corps of Engineers’ objections, and then reapply.

The Corps of Engineers’ announcement of the initial application’s denial stated, in part, that

“This administration supports the mining industry and acknowledges the benefits the industry has provided to the economy and productivity of this country, from job creation to the extraction of valuable resources, which are especially important as we recover from this pandemic.  The Pebble Mine project has the potential to fulfill all of those needs; however, as currently proposed, the project could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation…

“Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under Section 404 of the Clean Water Act…  [emphasis added]”

It’s repetition of the phrase “as currently proposed” could be read as an invitation to the Pebble Limited Partnership to reapply to the Corps for approval, after amending the application to take account of the Corps’ stated concerns.  But the announcement’s opening words, that “This administration supports the mining industry,” could also be read as a warning that, if the Pebble Limited Partnership wanted to maximize its likelihood of success, it ought to act quickly, so that any new application could be acted upon before president-elect Joe Biden, who has expressed his opposition to the Pebble Mine, in inaugurated at noon on January 20, 2021.

Yet even if Pebble Limited Partnership submitted a new application quickly, there’s no guarantee that such application would receive more favorable treatment than the last one, or that there would be sufficient time left in the Trump administration’s tenure to allow the application to be considered and approved. 

Right now, it appears that rather than submit a new application, Pebble Limited Partnership will instead appeal the Corps’ decision to the Corps’ Pacific Ocean Division’s Engineer, who is headquartered in Hawaii.  The Partnership has 60 days to submit such appeal.

However, 60 days after the disputed decision was handed down, Joe Biden will be President of the United States, making it unlikely that such an appeal will be successful.

That means that the appeal will serve mainly to exhaust Pebble’s possible administrative remedies, and so allow it to pursue its next possible course of action:  litigation.

While the federal agencies’ decisions are often challenged in court, most of those challenges fail. Courts may not substitute their judgement for that of the agency; they may only determine whether an agency decision meets certain minimum standards.  Among other things, an agency decision can be legally challenged if a court finds it to be arbitrary, capricious, an abuse of discretion, or otherwise contrary to law; unconstitutional; not authorized by statute; made without following proper procedure; or unsupported by substantial evidence.  Usually, in most administrations (the Trump administration being a very notable exception), agencies are careful to have their counsel review regulations before issuing them, to be sure that such standards are met.

However, the Pebble Mine record isn’t completely straightforward.  In 2014, under President Barak Obama, the Environmental Protection Agency found that the Pebble Mine

“would likely cause irreversible destruction of streams that support salmon and other important fish species, as well as extensive areas of wetlands, ponds and lakes,”

and halted development of the mine due to Clean Water Act concerns.

The mine’s developers sued, challenging the EPA’s actions.  That litigation was pending when Trump found his way to the White House.  Shortly thereafter, on May 1, 2017, his chosen EPA administrator, Scott Pruitt, met with the CEO of Pebble Limited Partnership.  About an hour after that meeting began, Pruitt instructed his staff to reverse the permitting halt put in place during President Obama’s term, and to allow the process to move forward.

Again, there were some stops and starts, but on July 30, 2019, the EPA announced that the regional administrator with jurisdiction over the Bristol Bay region had formally withdrawn the 2014 determination halting the permitting process.  Saying that

“the 2014 Proposed Determination…was issued preemptively and is now outdated,”

the Trump EPA allowed the process to continue.  On July 24, 2020, the Army Corps of Engineers released the final environmental impact statement for the project, which found that the project would not cause substantial harm to the fisheries of the Bristol Bay watershed.

That environmental impact statement seemed to open the door to a permit for the Pebble Mine, but just a month later, the Corps took a step back, announcing that because the mine

“would result in significant degradation to…aquatic resources,”

Pebble Limited Partnership would have to offer a plan to mitigate the mine’s damage to such resources before the permitting process could move forward, with the Corps stating that

“in-kind compensatory mitigation within the Koktuli River Watershed [which would have been most affected by the mine] will be required to compensate for all direct and indirect impacts caused by discharges into aquatic resources at the mine site.”

While that sounds fine on its face, there was one big problem—the Bristol Bay Watershed, which includes the Koktuli River Watershed, is in such good condition now, that it would probably be impossible to make any improvements to it that could be offered as mitigation for damage caused by the mine.  As Joel Reynolds, Senior Attorney for the Natural Resources Defense Council said in reaction to the mitigation requirement,

“It’s a perfectly functioning pristine, natural ecosystem.  It’s an incubator for trillions of salmon over thousands of years, and the notion that Northern Dynasty (Pebble’s parent company) has anything to offer it in terms of improvement is ridiculous.”

Thus, it probably isn’t surprising that the mitigation measures proposed by Pebble Limited Partnership in its permit application were deemed inadequate, and the application denied, by the Corps.

It also wouldn’t be surprising if Pebble didn't try to use the seemingly contradictory actions taken, over the years, by President Obama’s and by Trump’s administrations, to argue that the government was acting in an arbitrary and capricious manner when it ultimately rejected Pebble’s application.

Maybe a court would buy that argument.  Maybe it would be rejected.  But the fact that two Supreme Court justices, Clarence Thomas and Neil Gorsuch, and probably Amy Coney Barrett and Brett Kavanaugh as well, seem to disfavor the so-called “Chevron doctrine,” which requires courts to give deference to agency interpretations of the statutes which they are empowered to administer might encourage Pebble to litigate the matter as far as the courts will allow.

Thus, while the most recent rejection of the Pebble Limited Partnership’s permit application was certainly good news, it is not enough to guarantee the integrity of the Bristol Bay watershed.  Greater protections are needed.

Tim Bristol, executive director of SalmonState, a commercial fishing group, seeks additional administrative relief.  He has stated that

“The critical next step is to reestablish the Clean Water Act protections for America’s greatest salmon fishery—protections that should never have been done away with in the first place.  This can and should be an early priority for the Biden administration.”

Katherine Carscallen, executive director of Commercial Fishermen for Bristol Bay, is seeking a legislative solution, saying

“we’re focusing on the next step of working with Sen. [Lisa] Murkowski and everyone else who said they support permanent protections for the region.”

That “everyone else” would presumably include Sen. Maria Cantwell (D-WA), who recognizes the continued threat posed by the Pebble Mine and has called for additional protections that will prevent it from being developed.

Hopefully, advocates for Bristol Bay will continue to work with federal legislators and with the incoming Biden administration to assure that such protections are put in place.  For without them, the Bristol Bay watershed, and the salmon and other natural resources of the region, will never be truly safe.

 

 

 

 

 

 

 

 

 

 

UNITED STATES, EUROPEAN UNION AGAIN FRUSTRATE MAKO CONSERVATION EFFORTS

 

One day last July, two friends, two Stony Brook University researchers, and I were drifting maybe 10 miles south of New York’s Fire Island, chumming for sharks in about 20 fathoms of water.  We were fogged in; not in a real pea soup fog that hides even the floats attached to the lines, but in stuff that was just thick enough to limit visibility to maybe 150 yards.

Four whole mackerel hung in the chum slick, the nearest right under the boat, the most distant maybe 50 yards away.  The drift was slow, and the morning had been quiet, but right around noon one of the reels clicked as a fish moved away with a bait.

A big blip on my radar had first claim on my attention; the drift was so slow and uncertain that the bow of the boat kept swinging back and forth in what was at least a 90 degree arc, making it impossible for me to figure out just where the other vessel was heading, so I wasn’t giving much regard to what my four anglers were doing.  They all had big-fish experience, and if it looked like there was going to be any problems, I figured that they’d let me know.

But as I monitored the progress of the other, fog-obscured vessel, I was vaguely aware of a sort of “I’ve got it” ”It might be gone…” ”No, it’s still there” kind of conversation going on behind me, until somebody yelled “It’s a little mako!” and I finally tore my eyes off the radar’s CRT screen long enough to spot the smallest shortfin mako shark that I’ve ever seen swimming alongside my boat.

It was 73 centimeters—about 28 inches—long, and why it thought that it could eat a whole mackerel, and how it managed to get the #18/0 circle hook into its mouth, I don't know.  But somehow it got itself hooked, and a very short while after I was finally sure that the ship on my radar was going to pass safely, more than a half-mile away, the researchers finished taking their measurements, collecting their samples, and implanting their tag, and allowed the little mako to dart back into the depths.

And in that moment, they accomplished more for shortfin mako conservation than the United States, the European Union, or the International Commission for the Conservation of Atlantic Tunas, managed in all of this year.

There were hopes that things would be different.

Last year, scientists at ICCAT released an updated shortfin mako stock assessment, which revealed 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)…

“For [two runs of a population model that made slightly different assumptions], a [total allowable catch] of between 800-900 [metric tons], including dead discards, resulted in a >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 fecundity level necessary for the shortfin mako stock to produce maximum sustainable yield] by 2070.  [Another model run], which assumed a low productivity stock-recruitment relationship, showed that only [a total allowable catch] between 0 and 100 [metric tons] (including dead discards) resulted in a >50% probability of [achieving the desired result] by 2070.”

Since whatever remains of my body will be 116 years old in the year 2070, and well on its way to fertilizing the ecosysten from whence it came, I’m never going to see a healthy shortfin mako population again, but it would be nice to think that whoever is stalking my old grounds in that year might be able to do so.  However, it seems that the United States and European Union are doing their best to see that even that doesn’t happen.

Last year, they both objected to, and so effectively blocked, a proposal sponsored by Canada and Senegal to ban shortfin mako landings, and thus eliminate all commercial incentive to target and harvest  the species.  Because of the U.S. and E.U. objections, ICCAT agreed to extend its current shortfin mako management measures through 2020, when it would take up the issue again.

So on October 30, 2020, Canada and Senegal again submitted a proposal to ICCAT, which would have prohibited all landings of shortfin makos in the North Atlantic.  Even fish that were dead when brought to the boat would have to be discarded.  The only exception to that rule applied to vessels registered in nations which required that all such dead fish be landed; in the case of such vessels, the Senegalese/Canadian proposal allowed such landings, provided that the dead makos could not be sold for profit.

Such proposal took away any incentive for targeting makos, and drew support from the United Kingdom which, for the first time in many years, was present at ICCAT as an independent nation, rather than as a member of the E.U.  However, the United States and European Union were still adamant in their opposition to any measure that didn’t allow fishermen to land and sell at least some of the makos that they caught, so the ICCAT again failed to reach a binding agreement again this year.

Instead, the Commission kicked the can down the road, to be revisited once again toward the end of 2021.

Although disappointing, the ICCAT’s failure to reach an accord wasn’t surprising, as the United States had the same conservation-adverse administration running the country that it had in 2019, while a European Union without the U.K.’s often moderating voice would likely be even more opposed to a landings ban.

What was surprising was that, although the U.S. and E.U. were agreed on opposing the landings ban, they disagreed on other important issues.

Unlike the Senegalese/Canadian proposal, which would have reduced the total allowable catch of shortfin mako in the North Atlantic to zero, the United States’ proposal would have established a 700 metric ton annual catch limit in 2021, which would be further reduced to 500 metric tons in 2022 and subsequent years.  Although the U.S. proposal generally required all vessels to release all shortfin makos that came to the boat alive, it created three exceptions to that general rule.  Under the proposal, makos might be retained if

“a) the shark is dead at haulback, and the vessel has an observer or electronic monitoring system on board to verify the condition of the shark; or

b) [the nation where the boat is registered] requires a minimum size of at least 180 cm fork length for males and of at least 210 cm fork length for females; or

c) [the nation where the boat is registered] prohibits North Atlantic shortfin mako fisheries and requires all dead fish be landed and that the fishermen shall not draw any profit from said fish.”

While the U.S. proposal would reduce mako landings, its exceptions to the landings ban would perpetuate exceptions created by ICCAT in 2017; in doing so, it would both continue to provide commercial incentive for targeting, or at least not avoiding, shortfin makos, and would also continue to allow some level of harvest in the recreational mako shark fishery.  Thus, it would probably have little impact on the U.S. mako shark fishery.

At the same time, the U.S. proposal contained some worthwhile language, that might have reduced shortfin mako bycatch, and some level of dead discards, saying that

“[ICCAT member nations] shall require that vessels in their longline fisheries use nylon monofilament leaders and large circle hooks, which are fishing hooks with the point turned perpendicularly back to the shank to form a generally circular or oval shape, and the point of the hook is not offset by more than 10 degrees.”

It’s hard to say how many dead discards such rule would have prevented, had the U.S. proposal been adopted. 

U.S. longliners targeting swordfish and tuna already tend to use monofilament leaders, and that doesn’t prevent them from hooking and killing makos, which can easily be gut-hooked on the J-hooks that are often employed (I usually catch a few sharks each season that had been previously hooked on longlines, were cut loose, and still have the longline hook stuck in their jaw, often accompanied by an excessively long piece of monofilament leader). 

Requiring a circle hook would make it more likely that a shark would be hooked in the jaw, which is, in itself, a good thing, but would largely negate any benefit in using a monofilament leader, as it would make it much less likely that the shark would bite through and get away; I know charter boat captains who have abandoned wire leaders completely, have gone to straight mono, now that circle hooks are required in the Atlantic recreational shark fishery, and claim that even larger sharks aren’t biting through their leaders and escaping.

The fact that the U.S. proposal would have allowed circle hooks offset by 10 degrees also raises questions.  Offset circle hooks are currently outlawed in the recreational Atlantic shark fishery in the U.S. because they gut hook more fish than non-offset hooks do, so it’s difficult to understand why the U.S. would allow such hooks in the international longline fishery.

Taken as a whole, it would seem that any benefits of the proposed U.S. gear restrictions would be more illusory than real.

The European Union’s proposal would also reduce landings to 500 metric tons, and would limit those landings to fish that were dead when brought to the boat, thus differentiating itself from the U.S. proposal, which would also permit the harvest of fish that exceeded ICCAT’s current minimum size.  Like the U.S. proposal, the E.U. proposal would only allow vessels with observers or electronic monitoring systems on board to land shortfin makos.

Unlike the U.S. proposal, the E.U. proposal clearly favored the commercial fleet over the recreational sector.  Not only would it have prohibited recreational fishing vessels from landing any shortfin makos at all (which isn’t unreasonable, given that makos hooked by recreational vessels are always alive when brought alongside), but it would also have required 20% observer coverage on recreational vessels by the year 2023.  Such requirement would not only have imposed intolerable costs on the average recreational fisherman, as boats are generally required to pay the full costs of any observers that they carry, but would also have created a practically impossibile situaltion, for where would NMFS find enough qualified observers to cover 20% of all of the recreational boats, both private and charter, fishing for sharks off the U.S. East Coast on a pleasant weekend in late June?

The E.U. proposal would have hit the United States far harder than other ICCAT member nations, as the U.S. has a far larger recreational shark fishery than does the European Union.  But the E.U. has a long history of trying to shift its conservation burden onto other nation’s shoulders, as has been previously illustrated by the positions that it’s taken on Atlantic bigeye tuna in recent years.

The bottom line is that, although there are many nations, led by Senegal and Canada, which are attempting to bring meaningful conservation measures to bear on North Atlantic shortfin mako, neither the U.S. nor the members of the European Union are among them, and the mako is suffering as a result.

Hopefully, that will change in 2021, with an incoming Biden administration changing U.S. policy with respect to the species.  But hope is not a plan, and once the new administration has placed its nominees in charge of NMFS and NOAA, those concerned with the mako’s fate would do well to give those nominees a gentle—or, perhaps, not-so-gentle—nudge in the right direction.

Because there will always be those who fight for the status quo.

 

 

 

 

IS IT TIME FOR A "ONE-AND-DONE" RULE IN THE RECREATIONAL STRIPED BASS FISHERY?

 

A number of years ago, my wife, two of our friends and I found ourselves in a boat, with a guide, on Alaska’s Kenai River.

We had hit things just right; the river was filled with king salmon.  While the Alaska Department of Fish and Game estimates that it takes the average angler about 29 hours to put a single king in the boat, we probably weren’t waiting 29 minutes between hookups, with our guide putting us on king after king as we backtrolled big plugs down the river.

I was enjoying the action, and had released a number of salmon before landing a 43-pound fish.  That one went on the ice (there was no maximum size in those days), and after that, my lure stayed out of the water, although there was no sign that the bite was slowing down.

In fact, I would have liked to fish a little more, but the regulations for the river were clear:

“No person, after taking a king salmon 20 inches or longer from the Kenai River, may, on that same day, fish from a boat for any species of fish in the Kenai River downstream from Skilak Lake.”

That rule is reinforced with another requiring that

“Anglers who keep a king salmon 20 inches or longer…must immediately record that harvest.”

Each fishing license includes a page where such recordings are made.

That sort of “one and done” rule on the Kenai strikes a rational balance between the impacts of catch-and-release and catch-and-keep angling on the fish population, without unduly favoring either approach to the fishery.

Although we sometimes try to tell ourselves otherwise—particularly about our own fishing efforts—we all hopefully realize that catch-and-release fishing has some impacts on fish populations, although in many fisheries an angler would have to release quite a few fish before having the same impact as someone putting just on in the cooler.

When fishing for salmon on the Kenai, an angler has to make a choice.  Does he or she keep the first king that is caught, knowing that it might be the only one that takes the hook all day, and then quit fishing?  Or is the fish released, in the hope of enjoying more action, but at the cost of possibly not taking any salmon home?

It’s not always an easy decision.  On our second and last trip on the river, I got carried away by our first-day success and, expecting a repeat of the action we had already enjoyed, brashly announced that I wouldn’t keep another fish unless it was larger than the one I had already taken.  Having made that commitment, I caught a relatively small salmon early and let it go.  But fishing was far slower that day than on our first outing; I spent a most of the rest of the da watching my companions put their fish on ice while I waited and hoped that another king might come along.

Yet it’s a decision that has to be made, because the one thing that an angler can’t do is keep the first fish, then continue to catch and release, causing additional fishing mortality, after that first king is on ice.  And each angler makes it knowing that if the first fish is released, there is a very real possibility that another salmon might not come along that day.

So each person fishing the river must decide, on every fishing day, whether keeping one fish, or possibly catching many fish, will be their goal.

As a result of Alaska’s one-and-done policy on the river, fisheries managers have managed to constrain recreational king salmon landings on the Kenai to an average of 17,500 fish per year.

Yet that sort of one-and-done regulation is rarely encountered outside of Alaska.  In most fisheries, and particularly in saltwater fisheries, anglers can typically put a limit of fish in the box, and then continue fishing, even while using baits and techniques likely to lead to additional discard mortality.

The question that needs to be asked is whether requiring anglers to quit fishing once they have kept their limit of fish would benefit other fish stocks, as it seems to benefit the Kenai’s king salmon.

More particularly, we should ask whether it would benefit the striped bass, given that 48 percent of fishing mortality is attributed to fish that die after release?

The same basic logic would apply; by forcing anglers to make a choice between taking a fish earlier in the trip, and not engaging in catch-and-release once that fish was in the cooler, or releasing fish caught earlier in the session, and taking the chance of not catching a legal fish later in the day, both release mortality and overall fishing mortality would be reduced.

In the case of striped bass, where managers believe that, on average, about 9 percent of released fish don’t survive, putting one bass in the cooler is theoretically equivalent to catching and releasing eleven.  And since, particularly in these days of an overfished stock, catching and releasing 11 legal fish would constitute a pretty good day (because both the catch-and-keep and catch-and-release fishermen would, we hope, release all of their shorts and over-slot fish), a one-and-done rule probably wouldn’t favor one approach over the other. 

Only the anglers who tried to straddle the line, and would keep fishing after a bass was put on ice, would be disadvantaged.

There’s some dispute about how many anglers fall in that latter category.

Tom Fote, the Governor’s Appointee from New Jersey, probably wouldn’t see to much of a problem with a one-and-done restriction, because he’s gone on the record as saying that’s what people are already doing in his home state.  At one meeting of the Atlantic State Marine Fisheries Commission’s Atlantic Striped Bass Management Board, he argued that

“This fishery has completely changed in the last 20 years.  If you look at New Jersey, 20 years ago most of the striped bass fishermen were catch-and-release fishermen.

“They really were not keeping---they would take only one home a week, maybe a few like that, but they were mostly doing catch and release.  That is when our numbers were really high.  When you started cutting down on summer flounder and a few other species where these people could go targeting in May and June and everything like that, they all of a sudden switched to be striped bass fishermen, but they were meat fishermen.

“…A guy or a girl, when they get their fish that they’re going to take home, they go in, they don’t sit there.  A matter of fact, a lot of charterboat captains said as soon as you put your two-fish limit in New Jersey, we’re headed to the dock.  That is really what happens here…

“When I used to go out in 2002, maybe one guy on the boat would keep one fish.  Now you go and they keep eight fish, but they go back to the dock, and that is what they’re doing.  There is not the continuously [sic] catch and release there was a long time ago…  [emphasis added]”

If that’s what’s going on, a one-and-done rule wouldn’t impact the catch-and-keep angler at all.

But that may not be what’s really happening.

Recreational fishermen like to fish.  That’s why, even if they take their bass home, they invest the time and money needed to catching their dinner themselves, rather than buying it at the store, something that would cost far less in both time and money.  And when someone enjoys doing something like fishing, they’re not that likely to quit and go home just because they have a bass in the cooler.  It’s tough to leave fish biting early in the day.

So my own guess, based on the people I know who regularly keep bass, is that most anglers won’t voluntarily stop fishing just because they’ve kept their limit of fish.  That may be particularly true of charter boat fishermen, who pay for a full day and aren’t likely to want to go home right away if they put a bass in the boat within a few minutes of getting started. 

In support of my position, I offer a fishing report from a charter boat that specializes in stripers and fishes out of my local inlet:

“Found a huge pod [of menhaden] right away, holding big fish.  We had non stop action for 2 hours, all fish were between 30 to 49.4 pounds…”

That happened before the slot limit was put in place, when big fish could still be taken, yet the anglers, who from the photos appear to have taken fish home, didn’t just catch their limits and quit, but kept on fishing for a while.  Another report from the same boat, on a different day, said that its fares

“had a super day of bass fishing with about 20 fish to 48 pounds on the bunker pods…We kept a couple of fish for the table and released all others including the 48 pound beauty.”

While the report wasn’t clear about when the fish that were kept were landed, it’s a pretty good bet that they weren’t among the very last fish of the day, and that the anglers who caught them kept on fishing, and releasing fish, after those bass were already on ice.  If that was the case, a one-and-done fishery would probably have prevented at least some release mortality, which can be a particular concern in a bait fishery targeting the largest female striped bass.

Even if none of the bass were badly hooked, which is unlikely, hanging a 48-pound striper vertically from a scale isn’t conducive to that fish’s survival, and likely would have been avoided with a one-and-done rule.

Thus, as the ASMFC’s Atlantic Striped Bass Management Board begins to draft a new amendment to its striped bass management plan, a one-and-done provision, similar to the rule governing king salmon on the Kenai River, might be a worthwhile way to limit release mortality without unnecessarily restricting catch-and-release angling.

Whether such a provision should be included in the new amendment remains open to debate.  But if managers are sincere in their desire to reduce release mortality, that debate should, at the least, occur.

 

 

 

SALT WATER FISHING: IS SPORTSMANSHIP DEAD?

 

Formal notions of sportsmanship and angling ethics arguably first came to saltwater fishing in 1898, when the Avalon Tuna Club was established on Catalina Island, off the southern California coast. 

As described in an article in The Catalina Islander, a local paper, that marked the Club’s centennial

“The Club had established revolutionary big-game fishing standards and practices that are still in use today such as the concept of using light fishing line and rods only, to not only level the playing field between rival fishermen but to create a sportsmanlike atmosphere intended to prevent the over-fishing of pelagic giants such as tuna and marlin.”

As technological advances in fishing gear made it more and more possible for anglers to successfully catch and target big fish, it became a matter of pride for recreational fishermen—typically wealthy recreational fishermen who could afford the boats and equipment and travel necessary to pursue large pelagic fish—to bring such fish back to the dock to hang on the scales and show off in both informal and formal competition with their peers. 

Big egos and a desire to catch a bigger fish than anyone else led to questionable conduct by some of those anglers.  In response, in 1939 a group of avid saltwater fishermen formed the International Game Fish Association, in order to

“create a portfolio of standardized angling rules along with a rigorous ethical credo, [and] develop a network of representatives to promulgate IGFA principles in distant lands.”

In other words, to make saltwater angling a legitimate sport, with rules attractive to sportsmen.

As to what a “sportsman” amounts to, perhaps the late author Robert Ruark (who was not involved with the IGFA) put it best when he wrote

“A sportsman, is a gentleman first.  But a sportsman, basically, is a man who kills what he needs, whether it’s fish or bird or animal, or what he wants for a special reason, but he never kills anything just to kill it.  And he tries to preserve the very same thing that he kills a little of from time to time.  The books call this conservation.  It’s the same reason why we don’t shoot that tame covey of quail down to less’n ten birds.”

The International Game Fish Association’s rules have been adopted by many clubs and fishing tournaments, and although the rules in place today differ a bit from those first adopted nearly a century ago, the follow the same theme:  The contest between angler and fish should be a sporting battle, in which the angler does not enjoy an unfair advantage. 

IGFA rules are fairly complex, but make intuative sense.  They require, for example, that a fish be hooked and fought by a single angler; for a catch to be considered valid, the angler may not hand off the rod to a companion, no one may help hold the rod or the reel, and the angler is prohibited from resting the rod on the ral of the boat in order to help ease the strain on his body.  Fish may not be harpooned, shot, or intentionally foul hooked.  Treble hooks may not be used in bait.  An angler may not leave the rod in a rod holder after the fish is hooked, and so use the boat, instead of his or her own strength and talent, to fight it.  Fish may not be caught in violation of any law.

For many years, such rules generally reflected the ethics of anglers along the coast, even if they weren’t familiar with the IGFA.  Most people didn’t follow them to the letter—for example, IGFA rules disallowed the use of wire line, which was nonetheless often used, out of necessity, for fish ranging from New England striped bass to Bahamian wahoo, and if you fish in Alaska, your guide will shoot a big halibut before bringing it into the boat—but by and large, most inshore and offshore anglers conducted themselves like sportsmen, in a manner similar, if not identical, to that called for by the rules.

Lately, though, that behavior has changed, enough that I have to wonder whether many traditional ethics remain in saltwater angling.

I first noticed it happening offshore, in the tuna fishery.

Big fish like giant bluefin tuna can’t be simply reeled in and dragged over the side of the boat.  There is a point in the fight when the angler manages to bring the close to the boat, with only a leader—perhaps 15 or 30 feet in length—separating the fish from the fisherman. 

Traditionally, that was one of the most critical points in the battle, as a crewmember would reach out with gloved hands to draw the fish alongside, while others in the crew stood by with gaffs, ready to sink them into the fish and end its struggles.

A lot of things could happen at that stage of the fight.  A strong fish could rip the leader out of the crewmember’s hands, and begin the fight anew.  Or, in doing so, could dive and sever the line on the boat’s running gear.  The hook could pull, and end the fight that way.  Or, if the crew and angler were strong and skillful, the fish could be captured and either released (rather than gaffed), or secured alongside.

But during the 1970s, just as I began fishing offshore, the tuna fishery changed.  A high-end market for bluefin opened up in Japan, and tuna buyers began stalking the docks at Montauk, Pt. Judith and Gloucester, and at other northeastern tuna ports, offering anglers thousands of dollars in cash for their fish.  That transmuted the bluefin from merely a worthy quarry, which generated bragging rights, maybe a tournament trophy, and celebratory drinks at a dockside bar, into a hard asset that could yield a substantial payday.

As so often happens when money arrives on the scene, ethics began to exit. 

It started with harpoons. 

A lot of sportfishing boats carried them even then, hoping to stick one of the swordfish that, in those days, were often spotted finning out on the surface within a couple dozen miles of shore.  But once a good part of the fleet began selling their bluefin, harpoons quickly began to replace gaffs in the cockpits of tuna boats, not only to minimize the risk of losing a fish, and the cash such fish represented, but also to end the fight sooner, in order to maximize the quality, and the cash value, of a bluefin’s flesh.

It was only a matter of time until harpoons were used to end fights with sharks and smaller tuna as well.  The certainty of capture that came with a dart, a buoy, and a hundred feet of nylon line replaced the challenge of leadering and gaffing an animal that was still struggling, with all its strength, to escape the hook.  

Harpoons arguably put more dead fish in the boat, but in doing so, they diminished the sport, as recreational fishing regressed a step back toward its commercial and subsistence origins.

Then, anglers began to abandon the duel that was always the essence of offshore angling, the struggle between one angler, who matched his or her strength and endurance against the raw the power of a big fish, in fights that could last for hours and ended only when one of the combatants—and which one was often in doubt—finally reached the limits of strength and endurance and could fight no more.  These were the fights memorialized by writers such as Ernest Hemingway and Zane Gray, by S. Kip Farrington and by Van Campen Heilner, whose works I read when I was young, and who inspired me to give offshore fishing a try.

To that coterie of anglers, the notion of giving up on a fish and handing the rod off to someone else was unthinkable; you fought a fish until you beat it or broke it off.  Sometimes, on charter boats, vacationers who weren’t really anglers and didn’t know how to fish would team up on a tuna or marlin, something that wasn’t discouraged by captains who might want to sell the fish or use it to advertise their boat, but among serious anglers, it just wasn’t done.

Today, I see even experienced anglers giving up when the fight gets a little tough and their muscles threaten to cramp, instead of fighting through the pain and taking on the responsibility of winning or losing the fight—that they started—without calling for aid.  It seems that instead of seeking a sporting challenge, they no longer seek more than another dead fish.

But at least they try to fight their fish, even if they fail to do it alone.  These days, more and more fishermen don’t even do that, instead leaving the rod in the holder so that the fish pulls against the boat, and not against the muscle and bone of the angler.  That lets them use lines stronger than the 130 pound maximum in IGFA rules, end fights more quickly, and put more dead fish in the boat.  In some fisheries, particularly deep-dropping for swordfish, electric reels are also a part of the equation.

Yes, they put fish in the boat, but if all you want is dead fish, it’s probably cheaper to buy them.  Wthout the challenge of the one-on-one fight, is a caught fish worth more than a bought one?

In a society where the ends seemingly justify the means, and a fish may be valued less than the Internet photo it stars in, the answer may, unfortunately, be yes.

Sportsmanship seems no longer valued.

While offshore fishing is a big stage, and what I most enjoy, making the decline of sportsmanship there particularly irksome to me, I see the same trends on the inshore grounds.  In fact, it was an inshore issue that led me to begin this essay.

Remember the Robert Ruark quote that I cited earlier?  Especially the “a sportsman…tries to preserve the very same thing that he kills a little of from time to time” part?

I was perusing an Internet forum, where the topic of circle hooks in the striped bass fishery came up.  The Atlantic States Marine Fisheries Commission will require states to adopt rules mandating the use of circle hooks when bait fishing for bass, in an effort to reduce the number of fish that are gut-hooked and die after release; the definition of bait will include rigged eels, and in some states, including New York will probably include pork rind trailers on lures such as bucktails as well. 

I can understand why anglers might not like such a broad rule; striped bass are rarely gut-hooked on rigged eels or bucktails, and some might legitimately believe that the circle hook requirement for such baits isn’t needed.  But the ASMFC’s Law Enforcement Committee advised that any exceptions to the circle hook rule would make it both more difficult to enforce and less effective. 

Thus, when I see anglers writing that they’ll continue to use rigged eels with J-hooks, in violation of any regulations, because law enforcement won’t see them or catch them in the dark of the night, I have to wonder where sportsmanship has gone.

The fact that someone dislikes a rule doesn’t justify them becoming a poacher, particularly when that rule is intended to protect the fish that they rely on for their sport.

I feel the same way about the far too many anglers and professional captains who ignore the ban on striped bass fishing in federal waters, some of whom claim to care about the fish, but nonetheless violate the rules designed to protect them.  Actions speak louder than words.

Whether we’re talking about targeting protected sharks in the surf, illegally removing tarpon from the water for photos, or kicking a bluefish back into the wash because someone can’t be troubled to release it properly, saltwater anglers seem to be losing their sense of sportsmanship, while also losing respect for their quarry.

I suspect that the Internet is part of the cause, with many fishermen, particularly inexperienced fishermen, caring more about posting photos of themselves with fish than they care about fishing itself.  

Part of it is companies’ related desire to push product, with various company reps and “pro team” members using photos of fish to hawk the latest and greatest rod, reel or lure, and the related desire of the pro team members to keep themselves relevant to anglers and to the industry.

There are likely other reasons as well, some cultural, some reflecting changing times and changing attitudes toward fish, people, and the sport of angling.

But notions of sportsmanship ought never go out of style.

 

 

 

 

 

 

COULD STATES HAVE A LEGAL OBLIGATION TO PROPERLY MANAGE MARINE FISHERIES?

Regular readers of this blog know that I am a strong supporter of the Magnuson-Stevens Fishery Conservation and Management Act, because it sets forth a clear, legally enforceable framework for the conservation and management of marine fisheries.  Thanks to that framework, the number of federally managed fish stocks that remain overfished, or that are subject to overfishing, has declined substantially over the past two decades.

And regular readers of this blog also know that I am a regular critic of the Atlantic States Marine Fisheries Commission, which is not bound by any legally enforceable standards for managing fisheries, and as a result has never, in its more than 75-year history, managed to rebuild even one overfished stock and maintain that stock at sustainable levels in the long term.

Thus, we have a federal fisheries management system with a clear legal obligation to conserve and properly manage fish stocks, and we have a regional management system with absolutely no legal obligation to do the same thing.

The next logical question to ask is whether the states, managing the fish present in each state’s waters, have any obligation to conserve and manage those stocks.

A lawsuit, recently filed in North Carolina, may help to answer that question.

The suit is Coastal Conservation Association v. North Carolina, and was filed in North Carolina’s General Court of Justice, Superior Court Division for Wake County on November 10 of this year.  It makes the novel argument that, under the ancient public trust doctrine, which dates back to Roman times, has been widely recognized in various forms since then, and was incorporated into North Carolina’s Constitution, the state holds North Carolina’s public marine resources as trustee for all of the residents of that state, an thus that

“for North Carolina’s coastal fisheries resources, the public-trust doctrine imposes a fiduciary duty on the State to manage and regulate the harvest of coastal finfish and shellfish in a way that protects the right of current and future generations of the public to use public waters to fish.  As a result, the state may not allow finfish or shellfish harvest gears or methods in public waters that generate undue wastage or impair the sustainability of coastal fisheries resources, which in turn threatens the rights of current and future generations of the public to use public waters to fish.

“The State cannot disclaim or otherwise avoid its duties as trustee under the public-trust doctrine.  In other words, the State does not have the option to simply ‘resign’ as trustee.  Nor may the General Assembly abrogate the State’s legal duty under the public-trust doctrine.  To the contrary, the duties of the State in managing public-trust resources for the benefit of the public are inviolable.  [internal numbering deleted]”

It’s an interesting argument, which the plaintiffs—and there are more than eighty of them, besides the Coastal Conservation Association—argue is supported by provisions of the North Carolina Constitution, which read

“The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good.  The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing,”

and

“It shall be the policy of the State to conserve its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to…preserve as a part of the common heritage of this State its…estuaries [and] beaches.”

I’m not a North Carolina attorney, so I don’t know how much of the complaint reflects existing principles of that state’s laws, or how likely the state’s highest court—because this is the sort of case that, if the plaintiffs prevail, will only be finally won on appeal—is to entertain its core legal theory.  But the complaint seems to raise an intrinsically reasonable point, which is that if it’s North Carolina’s job to manage the state’s public resources, then the public has a right to expect that North Carolina will do that job well, and not allow the future health of such resources to be compromised in favor of short-term concerns.

After that, though, the complaint goes a little off-message, when it tries to shift blame for the allegedly poor state of North Carolina’s marine resources solely on the commercial fishery, and thus making the lawsuit not merely a demand for the state to manage its marine resources properly, but an us-against-them fight between the recreational and commercial fishing sectors by saying, among other things,

“In contrast to these public-trust rights of the public, the right of any business or individual to fish in public waters for profit is a narrow, limited privilege, afforded only by statute…When the State is determining appropriate policies or plans for managing coastal fisheries resources, that limited privilege granted to a relative few citizens or companies to fish for profit must yield in priority to the constitutionally protected public-trust rights of the general public.”

Again, I’m not a North Carolina attorney, so I don’t know whether there are court decisions in that state that might support such position.  

However, it strikes me that if a case is being built on public trust doctrine stretching back to Roman times, it probably ought to take account of the fact that purely recreational fishing is a relatively new phenomenon—Dame Juliana Berners, who is believed to have written Treatysse of fysshynge with an Angle, the first known work about recreational fishing, was born in 1388, while Isaac Walton’s The Compleat Angler was first published in 1653—and that any right to access public waters in order to fish that dates back a couple thousand years to the ancient Romans was almost certainly concerned with commercial fishing activities, and not recreational angling.

Thus, it would have probably been more appropriate for the complaint to avoid anti-commercial rhetoric, and instead concentrate on a theme that it mentions elsewhere, that

“Managing coastal fish stocks in the overall public interest would result not only in the ability of the fishing public to exercise its constitutionally-protected, public-trust right to fish, but would mean an overall increase in stock size, with more fish allocable to the commercial sector as well,”

because good fisheries management practices truly do benefit everyone engaged in fishing, whether commercial or recreational.

And if such good fisheries management practices necessarily involve outlawing trawling in estuaries, or the use of unattended gill nets, and have a greater immediate impact on the commercial fishing sector than they do on anglers, then that’s just the way things will have to be, but the point is that a lawsuit emphasizing good conservation and sustainable fisheries, which does not blame any one sector for fisheries problems, might have led to a more sympathetic hearing by the bench.

David Sneed, Executive Director of the Coastal Conservation Association’s North Carolina chapter, seemed to implicitly recognize that fact when he told the Carolina Public Press that

“The complaint is clear, however, that law-abiding commercial fishing license holders are not directly responsible for the poor state of North Carolina’s coastal fish stocks.”

But the language quoted above about “the right of any business or individual to fish in public waters for profit,” along with other language in the complaint that strikes a similar tone, renders the intent of the complaint far less clear than Mr. Sneed suggests.

Such an ambiguous message gives spokesmen for the commercial fishing industry an opportunity to spin the legal action as just another attack on that industry by recreational fishermen.  That is already happening, with the Carolina Public Press reporting that Glenn Skinner, Executive Director of the North Carolina Fisheries Association, a commercial advocacy group, said

“the commercial industry has been under attack from what he calls special-interest groups for decades.”

It also gave Mr. Skinner the opportunity to portray the plaintiffs in a selfish and unsympathetic light, by saying

“I find it interesting that they fail to mention the supporting businesses, restaurants and consumers who depend on commercial fishing for their livelihoods and access to this resource.”

It was a predictable response from a fishing industry spokesman, but it might have been avoided, or at least somewhat defanged, had the plaintiffs concentrated on management issues, and the benefits that everyone could enjoy if management improved, rather than trying to place part of the blame on the shoulders of people who aren’t even defendants in the action.

Having said that, should the plaintiffs prevail, and manage to hold North Carolina accountable for allegedly mismanaging the state’s fisheries, it would mark a watershed for fisheries management, and establish a precedent that might be adopted in other jurisdictions.  

Fisheries managers in other states would have reason to fear that if they did not do enough to ensure the sustainability of their states’ fish stocks, they could face litigation, too.

Whether or not that happens, the lawsuit has accomplished one thing already—it has impeached the credibility of the Coastal Conservation Association’s attacks on the federal fisheries management system, based on the claim that state managers do a better job and that state management better accommodates recreational fishermen. 

For example, the 2014 report, “A Vision for Managing America’s Saltwater Recreational Fisheries,” which the Coastal Conservation Association helped to produce and enthusiastically promoted once it was issued, claimed that

“Given its mandated commercial focus, the fact that the [National Marine Fisheries Service] has not embraced fisheries management practices that also meet the unique goals, needs and motivations of recreational anglers should come as no surprise…

“Many state natural resources agencies, particularly in the South, recognize the benefits of a vibrant recreational fisheries community and have managed to promote it while conserving their saltwater resources…”

Based on that allegation, the Coastal Conservation Association has called for states to take over responsibility for a number of federally managed species, most notably red snapper, in the Gulf of Mexico and on the Atlantic Coast; the Coastal Conservation Association’s preference for state-level management was echoed in a follow-up report, “A Vision for Marine Fisheries Management in the 21^st Century:  Priorities for the Next Administration,” which was released last October.

But in filing its lawsuit against North Carolina, the Coastal Conservation Association, which claims that state fisheries managers are favoring the commercial industry—the same claim that it made against NMFS in the original “Vision” report and throughout the red snapper debate in the Gulf of Mexico--has admitted through its actions that state fisheries managers are not inherently more virtuous than those at the federal level. 

Instead, the quality of state management decisions may be better or worse than those made by federal managers, depending on the state, the species involved and, subjectively speaking, whether the Coastal Conservation Association’s ox happens to be the one being gored by any particular management action.

If the lawsuit does nothing else, its implicit rejection of the “state managers know best” argument is enough to make it worthwhile.

However, it also has a chance of improving fisheries management in North Carolina, and maybe elsewhere on the coast.  Let's hope that it does.

It will be an uphill fight, but both fish and fishermen stand to benefit if it succeeds.