MID-ATLANTIC "HARVEST CONTROL RULE: MAKES AN AWKWARD DEBUT, PART i: A HASTY BEGINNING

 

When the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Interstate Fishery Management Program Policy Board (Policy Board) met in joint session on June 7, 2022, they approved the so-called “Percent Change Approach” to a “Harvest Control Rule” (Control Rule) which will be used to manage summer flounder, scup, and black sea bass, as well as to manage bluefish, once that overfished stock is rebuilt.

 

As described in a Council press release,

 

Under the selected approach, managers will consider two factors when determining whether recreational measures should be restricted, liberalized, or remain unchanged for the next two years. First, they will look at how recreational harvest limits (RHLs) for the next two years compare to recent estimates of recreational harvest. This gives an indication of whether recreational harvest is likely to exceed the RHL if recreational measures remain unchanged. Next, managers will consider the most recent estimate of stock size relative to the target stock size. These two factors, in combination, will be used to determine the percentage change in harvest that management measures should aim to achieve.

That might sound like a simple approach, but when the Control Rule was first put to use at the December 13, 2022 joint meeting of the Council and the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board), things didn’t go smoothly at all.

Given the haste and unanswered questions that plagued the Control Rule’s adoption, such problems were probably inevitable.

Scientific Reservations

In the spring of 2022, the Council’s Scientific and Statistical Committee (SSC) created a subcommittee of experienced fisheries scientists, who were asked to examine the several proposed versions of the Control Rule, and provide their opinions on the potential benefits and risks. That proved to be an impossible task, as the subcommittee lacked information that it needed to make a meaningful evaluation. So, instead of endorsing the Control Rule, the subcommittee produced a report which concluded, in part, that

 

the actual efficacy of the proposed alternatives in the Addendum/Framework is unknown. This uncertainty comes from two sources. First, the actual measures that will be taken in response to any of the triggers identified in the Addendum/Framework are not specified. Until such specificity is provided, quantitative evaluation of the performance of the options is not possible. Second, performance of the discontinuous nature of the options proposed in the Addendum/Framework has not been proven effective in other fisheries nor formally evaluated, to the knowledge of the sub-committee. Preliminary modeling conducted by the sub-committee to evaluate the binning of population states, reliance on various metrics of stock condition and recent catch history, and implications of recruitment could result in an increased risk of overfishing and becoming overfished. This suggests that the appearance of precision in the process that leads to regulatory specifications does not necessarily translate into precision in catch performance and compliance…

Comments were even more pointed during subcommittee discussions held on April 29, 2022.

Dr. Lee Anderson, a subcommittee member, bluntly stated that if he was peer reviewing the Control Rule as a submission to an academic publication, his response would have simply been “reject and resubmit.” He advised the subcommittee that “I think that we should send it back…I don’t think we should say anything but ‘Come back and do your homework.'”

Another subcommittee member, Dr. Alexei Sharov, noted that “The proposed document is not considering at all the efficiency of the tools that we have,” which were already being used to manage the mid-Atlantic’s recreational fisheries.

Later in the meeting, Dr. Anderson made what might have been the most damning comment of all, observing “I’m very concerned that if this [Harvest Control Rule] goes forward, it’s going to give the impression that there’s science involved.”

The comments of Council staff present at the subcommittee meeting probably did little to increase the subcommittee’s confidence in the Control Rule. When asked how the Control Rule would constrain landings to the acceptable biological catch (ABC), as the Council and NMFS are legally bound to do, Julia Beatty, who headed the Council’s Fishery Management Action Team, responded that she couldn’t definitively state “Yes, this will not exceed ABC.”

Ms. Beatty went on to note that the Control Rule’s emphasis was not on the ABC, but on not exceeding the overfishing limit (OFL). Later in the meeting, she informed the subcommittee that, pursuant to the Control Rule, management measures might not be “directly connected” to the recreational harvest limit (RHL), and that by adopting the Control Rule, the Council and NMFS were “not really proposing to tie [management measures] directly back to a change in the ABC or something like that.” She also stated that, under the management approach used to set measures through the 2022 season, the RHL and annual catch limit (ACL) “scale up and down,” but under the Control Rule, management “measures won’t change with changes in the ACL.”

Yet, regardless of any concerns or reservations that the members of the subcommittee might have expressed, the Council moved forward with the Control Rule, even though Council staff advised against its adoption, saying,

 

Council staff do not recommend implementation of the Percent Change, Fishery Score, Biological Reference Point, or Biomass Matrix Options…as they reduce the flexibility managers currently have to set measures to prevent overfishing…

…measures recommended by the Council must prevent recreational ACL overages in order to prevent overfishing and comply with the law…Options B-E will not change the process for setting ACLs and they will not change the requirement to prevent ACL overages. Therefore, Options B-E could require frequent changes in measures unless managers are willing to set more restrictive measures to allow for stability while preventing ACL and RHL overages.

However, the National Marine Fisheries Service’s (NMFS’) Greater Atlantic Regional Fisheries Office (GARFO) insisted that the Council move forward with the Control Rule. Michael Pentony, the regional administrator, wrote a letter that urged the Council to “lead on a course of action that will meaningfully improve the methods used to set management measures,” and followed up with the threat that “In the absence of meaningful action, NOAA’s National Marine Fisheries Service may be required to make regulatory changes under our own authority.”

 

Unseemly Haste

Over the previous months, some Council and Policy Board members suggested that no action could be taken on the Control Rule until two supporting models, which the ASMFC’s Plan Development Team and the Council’s Fisheries Management Action Team deemed “critical for thorough analysis of the options,” and said “would greatly improve the process for setting management measures,” were completed and ready for use.

But Mr. Pentony repeatedly expressed his concern that, if the Control Rule wasn’t approved at the June Council meeting, there wouldn’t be time to move it through the federal rulemaking process quickly enough for a final regulation, authorizing the Council’s use of the Control Rule to set 2023 management measures, to be issued prior to the December 13 meeting.

Such haste characterized much of the Control Rule’s development. Although it represented the biggest change in mid-Atlantic recreational fisheries management since the passage of the Sustainable Fisheries Act of 1996, the Council elected to fast-track the measure as a “framework” to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and the Bluefish FMP, rather than as a plan amendment.

 

By using the framework process, the Council was able to avoid the need to hold public hearings, and so severely limited the opportunity for public comment prior to the Council’s vote on the Control Rule. The ASMFC’s decision to address the Control Rule in an addendum also provided less opportunity for public input, although the ASMFC did, at least, hold one round of hearings, and shared the resulting comments with the Council.

As it turned out, such haste was entirely unnecessary.

No Regulation? No Problem

When the Council and Management Board met on December 13 to discuss summer flounder, scup, and black sea bass management measures for the upcoming season, NMFS had not yet issued a final regulation that approved use of the Control Rule to manage those species. In fact, even proposed regulations relating to the Control Rule were not released until two days after that meeting.

 

The long delay between the Council’s decision to adopt the Control Rule in June, and the issuance of proposed regulations more than six months later, strongly suggests that someone in the NMFS legal or administrative hierarchy had real reservations about such management approach.

Nevertheless, even in the absence of proposed regulations, the Council decided to use the Control Rule to manage summer flounder, scup, and black sea bass in 2023. GARFO did not object, and so made it appear that its previous insistence that the Council adopt the Control Rule in June, in order to have a final regulation in place by December, was unnecessary, and that it could have allowed the Council more time to consider the issue.

Given events at and before the December 13 meeting, taking a little more time to consider the Control Rule would have undoubtedly proved beneficial.

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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/

HERRING LAWSUIT COULD THREATEN NATIONWIDE CONSERVATION EFFORTS

 

Nearly forty years ago, the United States Supreme Court decided Chevron U.S.A. Inc. v. Natural Resources Defense Council, handing down a decision that created one of the most important principles of administrative law, which has since been called the “Chevron Doctrine.”

Chevron v. NRDC involved a challenge to the Environmental Protection Agency’s interpretation of the phrase “stationary sources” of air pollution, which appears in the Clean Air Act.  The statute itself did not provide a clear definition, so the EPA adopted a definition which would satisfy the agency’s policy goals.  The Natural Resources Defense Council, believing that the EPAs definition was inconsistent with the purpose of the law, brought litigation, seeking to have the court, rather than the EPA, determine legislative intent.

The Supreme Court sided with the agency, issuing a decision which read, in part

“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.  First, always, is the question whether Congress has directly spoken to the precise question at issue.  If the intent of Congress is clear, that is the end of the matter…If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation.  Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute…

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation…Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.  In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…

“[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.  While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for the political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of an agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress the challenge must fail…”

The Chevron Doctrine has been relied on by administrative agencies ever since, and has been widely applied to agency decisions that impact every phase of human activity, including fisheries management and far broader air, water, and land use issues.  Abrogating the doctrine would make it far more difficult for agencies to operate, and cripple many efforts to regulate potential harmful activities.

Yet that is just what some New Jersey herring fishermen are trying to do.

Loper Bright Enterprises v. Raimondo involves what the trial court described as “a collection of commercial fishing firms headquartered in southern New Jersey that participate regularly in the Atlantic herring fishery,” which challenged a final rule issued by the National Marine Fisheries Service, the so-called New England Industry-Funded Monitoring Omnibus Amendment which, among other things, implements a mandatory industry-funded observer program in the Atlantic herring fishery.

The plaintiffs alleged that the adoption of the final rule was procedurally flawed, that it violates provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and that the industry-funded monitoring requirement constitutes an unconstitutional tax.  They are represented by the Cause of Action Institute, which bills itself as

“a 501(c)(3) oversight group advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”

As such blurb suggests, it champions right-wing causes, including the weakening of regulatory protections of publicly-owned natural resources, in order to increase commercial exploitation.

The frightening thing is that, in the Loper Bright matter, they just might succeed.

Loper Bright didn’t fare well at the trial level, where the court noted that, pursuant to Magnuson-Stevens, fishery management plans may

“require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting the data necessary for the conservation and management of the fishery,”

and cited another court’s decision, which recognized that

“Fisheries regulation requires highly technical and scientific determinations that are within the agency’s expertise, but are beyond the ken of most judges.”

Applying the Chevron Doctrine to the facts of the case, as well as considering many other arguments in the course of a long and detailed decision, the trial court ruled against the plaintiffs.

Looper Bright didn’t fare any better in the Court of Appeals, where the issues in controversy were narrowed down to plaintiffs’ claims that Magnuson-Stevens does not state that the industry may be required bear the cost of at-sea monitoring, and claims that the process used to promulgate and approve the final rule was improper.

The majority on the appellate panel engaged in an extensive Chevron analysis, and again ruled against the plaintiffs.  But one judge disagreed, and wrote a dissenting opinion.

The dissent claimed that

“Congress unambiguously did not”

authorize NMFS to require vessels engaged in the herring fishery to carry industry-funded monitors.  It argued that

“Congress’s silence on a given issue does not automatically create such ambiguity or give an agency carte blanche to speak in Congress’s place.  In fact, all else equal, silence indicates a lack of authority.

“That means that when an agency’s action is challenged, it is not the challenger’s job to show that Congress has specifically prohibited the challenged action.  Holding challengers to that burden would be ‘entirely untenable.’  Instead, an agency must positively demonstrate where Congress explicitly or implicitly empowered it to act…

“Even if the Fisheries Service had found a few outliers, it is not usual to require a regulated party to pay the wages of its monitor when the statute is silent.  Nor is it expected.  In short, it is not the type of thing that goes without saying.  And Congress didn’t say it.”

The dissent then went on a fairly wild flight of imagination, seeking to justify the view that language in Magnuson-Stevens, which states that fishery management plans

“may prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,”

is not an implicit authorization of industry-funded monitors, writing

“the logic of the Fisheries Service’s argument could lead to strange results.  Could the agency require the fishermen to drive regulators to their government offices of gas gets too expensive?  Having the agency officials at work may be “appropriate” for “management of the fishery.”  Yet I doubt that Congress meant to allow for free fishermen chauffeurs.

“Or what if Congress was to entirely defund the compliance components of the Fisheries Service—could the agency continue to operate by requiring the industry to fund a legion of independent contractors to replace the federal employees?  That generous interpretation of ‘necessary and appropriate’ could undermine Congress’ power of the purse.  So although the words ‘necessary and appropriate’ may be broad, they cannot be as limitless as the Fisheries Service suggests…”

Such language may seem extreme and a little ridiculous, but it is nonetheless the language of a federal appellate judge.  More than a few judges have been appointed to the highest courts in the country because they appear to support equally ridiculous positions, that are favored by various industries and so by the members of Congress who curry such industries' favor.

Looper Bright Enterprises has now filed a petition for certiorari to the U.S. Supreme Court, where the Chevron Doctrine has been under siege by some justices, and appears to have fallen into some disfavor, although it has not yet been overruled.

Should the Supreme Court grant the petition, and so agree to hear the case, it would be a very strong sign that the majority intends to either severely limit or overturn Chevron.

Should that occur, federal agencies, including those charged with protecting clean air and water, and with conserving natural resources ranging from timber to migratory birds to endangered species, will be badly handicapped, and find it very difficult to adequately perform their tasks.

Which, of course, is exactly what the many industry-friendly organizations supporting the Looper Bright plaintiffs intend.

If they prevail, marine fish stocks will comprise a relatively small part of the resulting casualties.

 

 

THE FISHERIES FIGHTS OF 2023

 

2022 is over, but many of the fisheries issues that first arose then have carried over into the new year.  Other management actions are scheduled to occur within the next 12 months and, as always, new issues will arise; some of those will be expected while others will catch us by surprise, but all will have to be dealt with.

The following are a few things that are already on the horizon.

STRIPED BASS:  The Atlantic States Marine Fisheries Commission’s  Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan

Those of us in New England and the mid-Atlantic regions are going to have to hit the ground running this year, as the comment period for Addendum I ends at 11:59 p.m. on January 13.

As I mentioned in a post last November, Addendum I would end the prohibition on the interstate transfer of commercial striped bass quota, and has the potential to increase commercial bass landings by 30 percent or more.  That would clearly be a bad thing to happen at a time when the overfished striped bass stock is struggling to rebuild by the 2029 deadline, and preliminary indications suggest that 2022 recreational landings will more than double those of 2021, raising the specter that the stock might again be experiencing overfishing.

The proposed quota transfers might take one of four prossible forms, which range from unlimited transfers (subject to a 5% “conservation tax” at times when the stock is overfished), to transfers made solely at the discretion of the Atlantic Striped Bass Management Board, subject to any conditions that the Board might elect to impose, with no transfers permitted when the stock is overfished.  While such options differ in the details, all threaten to increase the fishing mortality rate.

The ASMFC held hearings along much of the striper coast in December; additional hearings are scheduled for Thursday, January 5 (a webinar hearing targeting Maryland, Virginia, the District of Columbia, and the Potomac River Fisheries Commission) and for Monday, January 9 (a hybrid in-person/webinar hearing targeting Maine and New Hampshire).

Comments at the hearings held to date have reportedly been heavily weighted against the quota transfers.  The hearing that I attended in New York attracted between 20 and 25 attendees, who were unanimously opposed to such transfers; I was told that the Massachusetts hearing saw approximately 70% of the attendees comment in opposition, and also told that about 90% of the comments at the New Jersey hearing opposed the transfer proposals. 

Delaware saw far stronger support, which was hardly surprising, as the impetus behind Addendum I was Delaware’s claim that current commercial quotas granted that state an unfairly small share of the landings.

Usually, it’s fairly easy to handicap ASMFC actions ahead of the vote, after listening to preliminary debates and considering what each state stands to gain or lose.  The vote on Addendum I is more difficult to predict.  

Maine, New Hampshire, Connecticut, Pennsylvania, and the District of Columbia have nothing to gain from commercial transfers, as they have prohibited commercial striped bass harvest.  The Potomac River Fisheries Commission sees all of its commercial quota come from the Chesapeake Bay, while Addendum I only addresses quota assigned to the ocean fishery; North Carolina, which owns the largest block of unused striped bass quota, has had no commercial striped bass landings in recent years.  Neither has much motivation to support the addendum.  Still, it is possible that some or all of those jurisdictions, which have nothing to gain, will nonetheless feel sympathy or some sense of regional solidarity for Delaware’s plight, and support some form of transfer.

Massachusetts, Rhode Island, New York, Maryland, and Virginia all have active ocean fisheries for striped bass, and all have come close to landing their entire quotas in recent years.  They might, in theory, benefit from quota transfers, but at least some of those states have been leaders in striped bass conservation, and a commitment to rebuilding the overfished stock might lead them to seek a continued prohibition on transfers.

This is one of those issues where managers might be swayed by the weight of public comment, and it would be in the interest of striped bass anglers to send an email in opposition to such quota transfers to comments@asmfc.org, with the subject line “Striped Bass Draft Addendum I” ahead of the January 13 deadline.

STRIPED BASS:  Constraining recreational fishing mortality

As noted above, striped bass landings spiked in 2022, probably because of the large 2015 year class growing into the 28- to 35-inch slot limit, more than doubling landings in 2021.  Such increase undoubtedly increased the fishing mortality rate above the 0.14 figure that underlies the Atlantic Striped Bass Technical Committee’s advice that there is a 78.6% probability that the stock will rebuild by 2029, and could easily have raised the fishing mortality rate above the 0.17 target needed to make rebuilding by such deadline even marginally likely.

Dr. Michael Armstrong, the Massachusetts fishery manager, addressed that point at last November’s Management Board meeting, and suggested that another stock assessment update might be appropriate.  While limited ASMFC resources made such assessment impractical, the Technical Committee and Management Board did agree to look at 2022 landings ahead of the May Management Board meeting, and determine whether such landings exceeded earlier projections.  The implication was that, should the landings exceed the projection by a significant amount, a new management action would be initiated.

While we won’t know whether, or how badly, 2022 landings exceeded projections until next spring, we must be ready to insist not only that such comparison take place, but that, if it is clear that fishing mortality has risen too high, that the Management Board takes prompt action to bring it back to or below target, in order to assure timely rebuilding.

BLUEFISH, SUMMER FLOUNDER, SCUP, AND BLACK SEA BASS:  Comment period on the National Marine Fisheries Services Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and Framework Adjustment 6 to the Bluefish Fishery Management Plan, ends on January 17

Last June, in response to complaints that the historical approach to setting recreational fishery management measures led to constantly changing regulations that reflected neither the health of fish stocks nor the actual level of angling effort (and, let’s be honest, because of the persistent complaints from elements within the angling community, most particularly the party boat industry, that current regulations did not allow them to kill sufficient numbers of black sea bass and scup, both of which remain at very high levels of abundance), the Mid-Atlantic Fishery Management Council and the ASMFC’s Interstate Fishery Management Program Policy Board agreed to adopt something that they called the “Percent Change Approach” to a so-called “Harvest Control Rule.”

I’ve written about the so-called Control Rule before (“so-called” because, as members of the Council’s Scientific and Statistical Committee have pointed out, from a scientific perspective, it really isn’t a control rule at all), and will be coming out with a two-part essay on the topic in the next week or so, which will describe its far too hasty adoption and the confusion that surrounded the Control Rule's recent debut at a joint meeting of the Council and the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board.

I’ve already written about how the Control Rule did not receive a rousing endorsement from the Council’s Scientific and Statistical Committee, nor from a subcommittee that was formed to review it.  One subcommittee member, Dr. Lee Anderson, went so far as to make the damning comment that

“I’m very concerned that if this [Harvest Control Rule] goes out, it is going to give the impression that there is science involved.”

I’ve noted in earlier posts that Council staff advised against the Control Rule’s adoption.

On December 13, at the aforementioned joint meeting of the Council and Management Board, I heard for myself how something as simple as adding additional data to a fishery management model could result in the Control Rule’s advice changing from a 10% increase in summer flounder landings to a 10% decrease, thus casting grave doubt on the claim that such Control Rule allows fishery managers to get a better grasp on the uncertainty inherent in recreational data.

There are thus a lot of red flags suggesting that the so-called “Control Rule” is not yet ready for use.  Those who agree ought to submit comments to NMFS ahead of the January 17 deadline, to help assure that mid-Atlantic fishery management measures really do prevent overfishing and are based on the best available science.

BLUEFISH:  New research-track stock assessment to be released

A new research-track bluefish stock assessment has been completed and peer-reviewed.  It should be released early this year.

I didn’t sit in on the peer-review meeting, so I’m not completely sure what the assessment has found.  Because of their life history, that sees some fish chasing bait into the brackish reaches of rivers while others hunt at the edge of the continental shelf, bluefish are a difficult species to assess.  The point of a research-track stock assessment is to bring new assessment approaches to bear, analyze newly-available data, and investigate previously under-researched aspects of a species’ life history.

Recent bluefish assessments passed peer review, but left many questions unanswered, so scientists have been working since July 2021 to improve the bluefish assessment process.  Bluefish are currently considered overfished, but a rebuilding plan intended to restore the stock within seven years has been put in place.

The new stock assessment will almost certainly affect management measures in some way.  If it finds the stock in better condition than previously believed, measures could be liberalized; on the other hand, if it finds that the stock is in worse condition, or not responding to rebuilding, or that recreational fishing mortality--perhaps because the Mid-Atlantic Fishery Management Council and ASMFC Bluefish Management Board underestimated the number and size of fish that die after being released—is higher than managers thought, measures might be made more restrictive.

Also, with research-track assessments, there is always the risk that a new assessment approach, or the use of a particular set or sets of data, will result in the assessment’s failure to pass peer review, although such failures are relatively uncommon.

Based on what I’m seeing, both inshore and offshore—I haven’t had a bluefish invade my shark slicks since 2017, even though, in some of the places I fish, they used to stack up behind the chum can like goldfish waiting to be fed, and made it very difficult to keep baits in the water—I doubt that the final assessment will bring good news.  But I’ve been wrong on such things before.

Whatever the bluefish assessment reveals, we must just do our best to assure that ensuing management measures are in accord with the best available scientific advice, whatever that advice might be.

GULF OF MEXICO RED SNAPPER:  New stock assessment scheduled for release in July

Few fisheries anywhere on the coast have generated as much recent controversy as the red snapper fishery in the Gulf of Mexico.  While management measures adopted to regulate the commercial sector, as well as the for-hire subsector of the recreational fishery, have managed to both constrain landings to sustainable levels and increase fishermen’s accountability, the private-boat recreational sector has continued to exceed its quotas, at least in certain states, all the while condemning the federal management system and demanding to kill even more.

Various organizations closely connected to the recreational fishing industry convinced legislators, a few years ago, to fund a research project they called “The Great Red Snapper Count.”  It found that the adult red snapper population in the Gulf of Mexico is about three times as large as previously calculated, largely because two-thirds of those fish are scattered over very broad expanses of low-profile bottom, rather than being concentrated on hard, higher-profile structure where previous surveys took place.  However, the conclusions of that study incorporated significant uncertainty, so red snapper quotas, for both the recreational and commercial sectors, were not increased anywhere near as much as the Count’s proponents expected. 

The upcoming stock assessment, designated “SEDAR [for SouthEast Data, Assessment, and Review] 74,” is scheduled for peer review beginning on June 1 and for release a month later, will be the first to fully analyze and incorporate the findings of the Great Red Snapper Count.  It’s not unreasonable to believe that the Count’s proponents are expecting a big, if belated, increase in the Annual Catch Limit, and more liberal recreational regulations, as a result.

However, there has also been a lot of buzz coming out of the Gulf of Mexico commercial and recreational fishing communities that suggests that Gulf red snapper, or at least snapper of any size, are getting harder to find, particularly after the recreational fishing season has been open for a couple of weeks.  Boats are reportedly being forced to run ever farther offshore to find larger fish.  If those stories are true—and I’ve heard from friends in the charter boat community, who fish both ends of the Gulf, who they are—then folks expecting more permissive regulations might be in for a big and unpleasant surprise.

However, as is also the case with bluefish, the most important follow-up to the red snapper assessment is to work to assure that management measures follow the science, and not political whims.

FEDERAL LEGISLATION:  The odds are against significant progress

There are a lot of things that Congress can do to improve the fisheries management process and thus the long-term prospects of the nation’s fish stocks.  But the odds are fairly good that such things won’t get done over the next two years.

For the first weeks—and maybe many months—of the 118^th Congress, we can expect a horror show in the House of Representatives, as a handful of irrational legislators throw stinkbombs that, they hope, will derail the process of naming a new Speaker and, whenever that farce may end, will do their best to push the majority party into wasting its time and taxpayer’s money on attacking federal law enforcement, harassing cabinet officials, and generally engaging in petty revenge against the minority party, instead of doing the job that they’re paid for.  In fact, such nonproductive House members even plan to include senators of their own party on the revenge agenda, refusing to consider Senate bills sponsored by their supposedly same-party colleagues because such senators dared to elevate the needs of their country and fellow citizens above pure party politics.

In the Senate, things might look a little better, but it will still be difficult for a conservation bill to gain the 60 votes that it would require to avoid a filibuster, and there is every chance that, should such a bill make it through the Senate, it would die in a House dominated by people more interested in making political statements than in doing the nation’s work.

So what sort of fisheries bills might we see in the 118^th Congress?

I suspect that we’ll see a forage fish bill, similar to the Forage Fish Conservation Act, H.R. 5770, sponsored by Rep. Debbie Dingell (D-MI), and S. 1484, sponsored by Sen. Richard Blumenthal (D-CT), introduced in one or both houses fairly early in the session.  While it is easy to argue that federal law doesn’t provide forage fish, a critical element of the marine food web, with adequate protections, and while such legislation would probably receive substantial popular and political support, it will be vehemently opposed by the various industrial fishing fleets that profit from catching low-value species in very large quantities, and selling much of their product overseas.  Such opposition will likely be more than enough to kill the bill, particularly given the number of current legislators who elevate short-term economic gains over long-term environmental health.  Even so, a forage fish bill probably has a better chance of passage than anything else that might be introduced.

We may also see one or more bills that are intended to protect both fish and fishermen from the ongoing impact climate change and warming waters.  Again, while such legislation is undoubtedly needed, when the catechism of one party effectively eschews even uttering the phrase “climate change,” much less admitting that such change is taking place, climate change legislation will be dead on arrival.

The good news, if there is any, is that bills that would undercut marine fish conservation are equally unlikely to pass.

I would be shocked if we didn’t see some sort of legislation attempting to overthrow the federal regime managing the recreational red snapper fishery in the Gulf of Mexico.  The angling organizations opposing federal management are well-heeled and politically sophisticated, have capable lobbyists, and contribute to the right legislators, so I would be very surprised if a Republican representative from a Gulf state doesn’t introduce such a bill, and convince his House colleagues to pass it (that is, provided that such colleagues aren so busy doing things like harassing retired federal health experts at bogus oversight hearings that they never get around to considering legislation).  But I would expect such bill to die in the Senate, where it is unlikely to receive 60 votes, unless it can be attached to some sort of must-pass legislation.  Similarly, a red snapper bill introduced in the Senate would probably have a difficult time winning passage.

We may also see someone in the House introduce legislation to reauthorize, and substantially weaken, the Magnuson-Stevens Fishery Conservation and Management Act, which governs fishing in the federal waters of the United States.  Such a bill has been introduced in each session of Congress for at least the past decade, and there is no reason to believe that critics of marine fish conservation are going to stop now.  While it’s just possible that such bill might pass in the House, it would likely die in the Senate, in part because of its negative conservation impacts, and in part because it has appeared, over the past few years, that the Senate is very happy leaving Magnuson-Stevens alone.

Other bills could arise, particularly if a management action somewhere along the coast offends a large enough constituency, and they manage to convince a legislator to force a relevant change in the law.  We might see bills that seek to either authorize or prevent the removal of dams that block anadromous fish from accessing upstream spawning grounds.  We might see bills seeking to outlaw particular types of fishing gear, or to close—or not close—sections of ocean to extractive activities, including some or all types of fishing.

But it won’t be easy for any such bills to pass.

It is likely that the fisheries fights of 2023 will largely be fought on the usual terrain, at the ASMFC, the regional fishery management council, and at the National Marine Fisheries Service.  Congress will probably be a secondary theater. 

Which is fine, for there will still be plenty to do.

 

 

2022: A REASONABLY GOOD YEAR FOR MARINE FISH CONSERVATION

 

Ever since 2014, when this blog first appeared, I’ve taken a look back on the year just past, and the successes and failures of the various fishery management bodies.  Taken as a whole, the fish didn’t fare badly in 2022.

There were a few clear wins, although none were monumental, and at least one significant loss.  Inshore, fishery management actions were a mixed bag; offshore, the direction was generally positive.

INSHORE:  The Atlantic States Marine Fisheries Commission adopts Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass

Amendment 7 was one of the most high-profile management actions of the year.  Although the version finally adopted by the ASMFC wasn’t perfect—it fell a little short on reining in the use of conservation equivalency, did nothing to hold anglers accountable for overfishing, and allowed managers to delay taking action under certain circumstances—over all, the document represents a solid step forward in striped bass management.

The final result was particularly notable given where the process began.  When Amendment 7 was initiated late in 2019, at least some of its proponents viewed it as a vehicle that they could use to relax regulations, increase harvest and—although it wasn’t their intent—to place the long-term health of the stock in considerable jeopardy.  But thanks to the efforts of a few thousand concerned anglers, who cared enough to come out to two rounds of public hearings and to submit written comments on both the initial Public Information Document and the Draft Amendment 7, and thanks to a majority of Management Board members who listened to such anglers’ concerns, we ended up with a document that did not change the biomass or fishing mortality reference points, kept the existing triggers for management action intact, and added a new trigger that requires management action when recruitment flags.  The new amendment even addresses the contentious issue of conservation equivalency; although it still allows states too much freedom to act in that regard, it nonetheless places real sideboards around the use of conservation-equivalent measures, and completely prohibits new conservation equivalency measures when the stock is overfished.

It represents a real win.

Unfortunately, anyone who has dedicated much time to striped bass management issues knows all too well, wins can be transient, and there is always more work to do.  The Management Board’s release of the Draft Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan last November, and what appears to be a sharp increase in 2022 recreational striped bass landings, still threaten the stock’s recovery, and are issues that must be addressed in the upcoming year.

INSHORE:  The Mid-Atlantic Fishery Management Council and ASMFC Interstate Fishery Management Policy Board adopt “Harvest Control Rule”

For many years, the recreational fishing industry and affiliated “anglers’ rights” organizations have been working to undercut the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act.  Much of their initial, unsuccessful efforts were focused on summer flounder in the mid-Atlantic and red snapper in the Gulf of Mexico.

Then, in 2014, the nation’s largest industry and anglers’ rights groups initiated a nationwide effort to weaken federal fishery managers’ ability to regulate recreational fisheries.  Their efforts culminated in 2018, when the Modernizing Recreational Fisheries Management Act was signed into law.  While the bill passed by Congress was far less offensive, and far less of a threat to U.S. fish stocks, than the legislation that was originally introduced, it contained somewhat vague language that gave the regional fishery management councils

“the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed use fishery) in developing a fishery management plan, plan amendment, or proposed regulation, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component.”

At the time, it wasn’t quite clear what such provision accomplished, as there was nothing in the law that prevented such measures from being employed even before the new law was enacted, provided that such measures prevented overfishing and, in necessary, allowed the timely rebuilding of overfished stocks.  However, provided with such clear mandate, a coalition of industry-connected organizations approached the Mid-Atlantic Fishery Management Council, urging it to consider what was being called a “harvest control rule” to manage bluefish, summer flounder, scup, and black sea bass.

Such “control rule” would replace the previous management approach of comparing past landings with projected future harvest, and using the results of such comparison to set management measures.  Such approach was imperfect; it led to frequent changes in recreational management measures and frequently failed to constrain anglers’ landings to the recreational harvest limit.  It also constrained recreational landings of very abundant stocks, which supposedly harmed the angling industry.

On March 17, 2020, six industry-related organizations sent a letter to the Mid-Atlantic Council which said, in part, that

“we strongly support NOAA Fisheries using management approaches for our sector other than poundage-based quotas, which are best suited for commercial fisheries…

“That’s why we fully supported the Modern Fish Act (Public Law 115-405) signed by President Donald J. Trump on December 31, 2018.  Section 102 of the Modern Fish Act authorized the regional fishery management councils to use additional management tools more appropriate for recreational fishing…

“Over many decades, states have proven the ability to balance conservation and access by managing America’s millions of saltwater anglers through these approaches in state waters…”

 What such industry groups left unsaid was the repeatedly demonstrated truth that when state (or federal) fishery managers compromise the conservation needs of a fish stock in order to increase “access”—that is, to increase recreational landings—the fish stock rarely fares well in the long term. 

There is also a question of whether such management approach, which neither constrains recreational landings to the annual recreational catch limit nor provides any assurance that overall landings will remain below the acceptable biological catch, meet the legal mandates of Magnuson-Stevens.

Nonetheless, the Council and ASMFC went forward with the so-called “harvest control rule” (which, Council scientists made very clear, was not truly a control rule at all), ignored the concerns of some members of the Council’s Scientific and Statistical Committee, one of whom, Dr. Lee Anderson, observed

“I’m very concerned that if this [Harvest Control Rule] goes out, it is going to give the impression that there is science involved,”

and, despite the reservations of Mid-Atlantic staff, ultimately approved that management approach at their joint meeting last June.

The control rule was used to set 2023 recreational management measures for summer flounder, scup, and black sea bass, even though proposed regulations addressing such management approach, much less a final rule authorizing its use, had not been issued at the time.

The Council’s and ASMFC’s use of the so-called “Harvest Control Rule,” despite its dubious scientific merit, represents a clear loss to fisheries conservation.

Having said that, the comment period on the proposed regulations will remain open through January 17, 2023, so there is still a chance that, depending on the comments received, NMFS might still reverse the ill-advised management action.

INSHORE:  South Atlantic Fishery Management Council takes a small step toward little tunny (a/k/a “false albacore”) management

False albacore are one of those species that are loved by a lot of people, but suffer from a lack of biological information.

The American Saltwater Guides Association is trying shed a little light on the species’ movements in a groundbreaking tagging program that kicked off last summer, and is already providing new and previously unknown information.  What may ultimately prove even more significant, but has received less publicity, is that the Guides Association also requested that the South Atlantic Fishery Management Council begin to manage the little tunny resource, which is currently unmanaged throughout its range.

While we’re probably many years away from a little tunny management plan, the South Atlantic Council did, at its December 2022 meeting, agree to produce Fishery Performance Reports for the species at three-year intervals, and collect additional, related data that would hopefully allow managers to intervene should a threat to the species arise.

Such action represents a small yet very real win for an under-managed and data-poor species.

INSHORE:  Court rejects regulation banning midwater herring trawls in inshore waters

Amendment 8 to the Fishery Management Plan for Atlantic Herring, adopted on January 11, 2021, created an inshore buffer zone that extended from the Canadian border to the western border of Rhode Island, within which large, midwater trawls were not allowed to operate.  Such buffer was created at the request of fishermen, whale watch tour operators, and others who complained that the use of midwater trawls led to the localized depletion of Atlantic herring, and so a dearth of herring predators essential to such complainants’ businesses.

The regulatory action was supported by testimony of such fishermen, whale watch operators, and others, who provided anecdotal evidence.  However, it was not supported by hard, objectively collected data.  As a result, on March 29, 2022, a U.S. District Court judge ruled that the regulation was not supported by the best available science, so violated Magnuson-Stevens’ National Standard 2, and was thus invalid.  NMFS ultimately decided not to appeal the judge’s decision, which strongly suggests that the rulemaking did, in fact, lack legal justification.

Whether or not the regulation was legally justified, forage fish are one of the pillars that support inshore ecosystems; the court’s decision allowing such forage species to be targeted by large-scale, industrial fisheries represented a conservation loss.

OFFSHORE:  NMFS calibrates states’ Gulf of Mexico red snapper data

For many years, various angling industry and anglers’ rights groups have objected to federal management of red snapper in the Gulf of Mexico, arguing that the regulations imposed by federal managers are overly restrictive.  In response, the Gulf of Mexico Fishery Management Council adopted Amendment 50A-F to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which required NMFS to set the overall recreational harvest target and allocate a portion of such target to each of the five Gulf states, but allowed such states, each of which developed its own recreational data program, to set seasons and, within limited parameters, bag and size limits intended to keep recreational landings within each state’s quota.

The system seemed to work for a while, and was hailed by representatives of the various organizations, but then ran into a hitch after NMFS pointed out that the data compiled by each state’s program was compatible with neither the data compiled by the federal Marine Recreational Information Program nor the data compiled by the other Gulf states.  To fix the problem, NMFS would calibrate each state’s data into a “common currency” that would be interchangeable with the data used by the other jurisdictions.

When such calibration was done, it became clear that anglers in at least two of the states, Alabama and Mississippi, were exceeding their state allocations by a substantial amount, and that landings would have to be cut by 50% or more to bring them down to sustainable levels.  As is typically the case, the call for reductions led to substantial pushback from the recreational sector, which called on its allies on the recreationally-dominated Gulf Council to prevent, or at least delay, regulations that reflected such calibration.  

While such efforts paid off for a couple of years, on December 2, NMFS published final regulations in the Federal Register, which will finally put calibration into effect for the 2023 season.

Such regulations represent a win for red snapper conservation in the Gulf of Mexico.

Although there is still a chance that such regulations might be derailed by litigation or legislation, the likelihood of that happening is fairly low.  The window for bringing a legal action challenging the rule—30 days after publication—is closing quickly, while a divided Congress makes it very unlikely that legislation overturning the rule will be adopted by both houses; the legislators most opposed to current red snapper management are almost all Republicans, which means that even if a bill made it through the House of Representatives, it would face a tough slog in the more conservation-oriented and Democrat-controlled Senate, where it would have to receive 60 of 100 votes to be assured of passage.

OFFSHORE:  NMFS and the ASMFC prohibit the harvest of shortfin mako sharks in the Atlantic

There’s not too much to say on this management action.

The North Atlantic stock of shortfin mako sharks has been in sharp decline, a decline primarily attributable to bycatch of sharks in the pelagic longline fishery.  I have been an active participant in the recreational shark fishery off New York and southern New England since the late 1970s, and have observed a startling decline in shortfin mako numbers over the past decade.

Late in 2021, the International Commission for the Conservation of Atlantic Tunas agreed that shortfin mako harvest should be prohibited in the North Atlantic, unless fishing mortality was reduced to a very low, sustainable level.  The United States, as a member of ICCAT, was required to adopt conforming regulations.  NMFS did so on July 1 of this year; the federal action triggered a complimentary prohibition on the retention of makos in state waters, which was adopted by the ASMFC’s Coastal Sharks Management Board in May.

Such prohibition on landing a large pelagic shark, which is slow to mature and reproduces very slowly, is certainly a conservation win.

OFFSHORE:  The use of large-mesh drift gillnets to end in five years

In what might be the last conservation win of 2022, the Driftnet Modernization and Bycatch Reduction Act, which had been incorporated into a far larger federal spending bill, was signed into law on December 29.

Drift gillnets more than 2.5 kilometers long have already been outlawed by Magnuson-Stevens.  The new bill provides for the five-year phase-out of drift gillnets with mesh of 14 inches or larger, regardless of length.

Elimination of such large-mesh gillnets will substantially reduce the bycatch, and the discard mortality, of a host of sharks, sea turtles, and marine mammals.

It can only be seen as a conservation win.

OFFSHORE:  CITES lists 60 shark species on Appendix II

On November 25, the 19^th Conference on the Convention on International Trade in Endangered Species of Wild Flora and Fauna, usually referred to as “CITIES,” listed 54 species of requiem sharks and 6 species of hammerhead on CITES’ Appendix II.

Appendix II species are those that are not necessarily threatened at this time, but which may become threatened, or even endangered, if international trade is not adequately controlled.  Once a species is listed on Appendix II, it may not be traded internationally unless the nation where they are captured certifies that such species is sustainably managed and is not endangered.  The CITES listing is significant because it includes about 90% of shark species that comprise the international trade in shark meat and, perhaps more importantly, shark fins.  Prior to the November action, only about 20% of such species were listed.

While hammerhead sharks, as a group, are easily recognizable, requiem sharks make up the largest collection of species.  The group includes such superficially similar species as the dusky and sandbar (brown) sharks caught off the U.S. East Coast, blacktips and spinners, and sharks often seen by divers in tropic waters, such as the Galapagos, Caribbean reef, silky, and whitetip reef sharks. 

Thus, the broad-based CITES action represents a win that will be felt throughout the world’s oceans.

Overall, the fish won more than they lost in 2022.  But 2023 is quickly approaching.  On Sunday, I’ll provide a quick overview, along with a few predictions, of the challenges we’ll face in the new year.

 

 

LARGE-MESH DRIFTNET BILL BECOMES LAW

 

On Friday, the House of Representatives approved a $1.66 billion federal spending bill, and sent it on to President Biden to sign into law.  There is no question that the President will do so.

Despite the substantial monies appropriated by that bill, the legislation wasn’t all about spending.  A number of other pending bills were incorporated into it, bills which ranged from legislation that would protect presidential election results from the sort of political tampering that was attempted two years ago to a provision that would ban the installation or use of Tik-Tok on government computers.

While many of the included, non-spending items received substantial press coverage, one provision that will further marine conservation efforts flew largely under the radar.  That was the inclusion of S. 273, the so-called Driftnet Modernization and Bycatch Reduction Act, which was sponsored by Senators Diane Feinstein (D-CA) and Shelly Moore Capito (R-WV).

The Magnuson-Stevens Fishery Conservation and Management Act currently defines “large-scale driftnet fishing” as

“a method of fishing in which a gillnet composed of a panel or panels of webbing, or a series of such gillnets, with a total length of two and one-half kilometers or more is placed in the water and allowed to drift with the currents and winds for the purpose of entangling fish in the webbing.”

Such large drift gillnets are recognized as a non-selective gear type that can lead to substantial bycatch of non-targeted species, sea turtles, and marine mammals.  The United Nations’ Food and Agriculture Organization notes that

“Because abandoned, lost or otherwise discarded drift gillnets have the potential to continue catching fish and [endangered, threatened, and protected] species, effective measures are needed to reduce their impact.

“While drift gillnets are usually size selective, its species selectivity is poor, often catch non-target species, including [endangered, threatened, and protected] species.”

Particularly with respect to sea turtles and marine mammals, the National Marine Fisheries Service advises that

“Turtles encountering a gillnet can quickly become entangled around their head or flippers as they try to escape.  Entangled turtles will drown if held under the water but have a higher chance of survival if they can reach the surface to breathe.  The nylon can tighten around the turtle’s soft body parts and cause deep cuts potentially leading to infection, limited movement, or complete loss of the limb.  Limited use of appendages can impair a turtle’s natural feeding, breathing, and swimming behavior…

“Gillnets can entangle a wide variety of marine mammals.

“Depending on the gillnet mesh size, animals can become entangled around their necks, mouths, and flippers.  Entanglement can prevent proper feeding, constrict growth, or cause infection after many months.  Marine mammals…entangled in drift gillnets can drag gear for miles as they migrate and forage, leading to extreme fatigue.”

In 1990, responding to actions taken by the United Nations and a group of South Pacific nations the previous year, to ban the use of drift gillnets on the high seas, Congress amended Magnuson-Stevens to include a national policy that supports such ban, and also to direct the Secretary of State to seek international agreements that would further such goal.  Such agreements would, among other things, provide for satellite monitoring of fishing vessels, require fisheries observers to document the nature and levels of bycatch, and permit such vessels to be boarded by United States’ personnel on the high seas.

The amendments to Magnuson-Stevens also deny United States port privileges to any vessels of any nation engaged in drift gillnet fishing, or other forms of illegal, unreported, or unregulated fishing on the high seas.  The President of the United States is also directed to engage in consultations with any nation, if such nation’s vessels or nationals engage in such illegal fishing and, if such consultations does not achieve a satisfactory result, to prohibit the importation of such nation’s fish, fish products, and sportfishing equipment into the U.S.

Finally, amendments to Magnuson-Stevens made it unlawful

“to engage in large-scale driftnet fishing that is subject to the jurisdiction of the United States, including use of a fishing vessel of the United States to engage in such fishing beyond the exclusive economic zone of any nation.”

While the prohibition on large-scale driftnet fishing reduced the gillnet bycatch issue, it did not eliminate it.  The problem was particularly acute off the West Coast of the United States, where deep water comes close to shore, and large-mesh drift gillnets, not long enough to fall under the “large-scale driftnet fishing” definition, were used to target sharks and swordfish, but ensnared substantial numbers of non-target animals, up to and including humpback whales.

As explained by Senator Feinstein,

“Large mesh drift gillnets, which are between a mile and a mile-and-a-half long and can extend 200 feet below the ocean surface, are left in the ocean overnight to catch swordfish and thresher sharks.  However, at least 60 other marine species, including whales, dolphins, sea lions, sea turtles, fish, and sharks are also regularly entangled in the large mesh net ‘walls,’ injuring or killing them.  Most of these animals, referred to as bycatch, are then discarded.

“The use of large mesh drift gillnets by a single fishery based in California is responsible for 90 percent of the dolphins and porpoises killed along the West Coast and Alaska.

“In 2018, California passed a four-year phase-out of large mesh drift gillnets in state waters to protect marine life.  A majority of the driftnet fishermen have voluntarily participated in that phaseout.  The Driftnet Modernization and Bycatch Reduction Act would extend similar protections to federal waters…”

S. 273, as incorporated into the recent funding bill, would accomplish such goals by first amending the definition of “large-scale driftnet fishing” to include any drift gillnet

“with a mesh size of 14 inches or greater,”

regardless of the length of the net.  It also provides for a five-year phaseout of such large-mesh gillnets, during which time NMFS may provide assistance, including cash grants, to help transition current driftnetters into other gear types.

One particularly promising gear type, known simply as “deep-set buoy gear,” appears to be particularly promising.  It employs baited hooks on individual lines to attract swordfish, and provides fishermen with an immediate indication when a fish has taken the bait, allowing them to land a higher-quality product that has not been soaking, dead, in the sea for many hours.  The buoy gear appears to be far less-bycatch prone than the driftnets, with studies suggesting that up to 98% of such gear’s catch consists of swordfish, a striking improvement over the drift gillnets, where bycatch comprises, on average, 50% of the catch.

Congress passed similar legislation in 2020, then designated S. 906.  However, that bill clashed with then-President Donald Trump’s philosophy of monetizing natural resources regardless of conservation concerns.  Trump thus predicably vetoed the bill, and attempted to justify his actions by saying,

“By forcing the West Coast drift gillnet fishery to use alternative gear that has been proven to be an economically viable substitute for gillnets, the Congress is effectively terminating the fishery.

“As a result, an estimated 30 fishing vessels, all of which are operated by family-owned small businesses, will no longer be able to bring their bounty to shore.  At a time when our nation has a seafood trade deficit of nearly $17 billion, S. 906 will exacerbate this imbalance.”

Including S. 273 in the omnibus funding bill would help to prevent such a veto from recurring, although there is absolutely no reason to believe that President Biden would have opposed the legislation, even if it arrived on his desk as a stand-alone bill.’

While the intent of S. 273 was primarily to protect sea turtles, marine mammals, and other protected species, it would be a mistake to believe that its benefits won’t also accrue to recreational fishermen.  Even here on the East Coast, gillnets take their toll, as exemplified by this sandbar shark, caught off Fire Island, New York, that apparently escaped—or perhaps was released—from such an entanglement alive, although with deep cuts that almost encircle its body.

While that shark was probably caught in a net with mesh just a little too small to fall under S. 273’s prohibition, it demonstrates the sort of damage that large-mesh gillnets can do.

So the recent passage of legislation containing S. 273 definitely represents a step forward.