MARINE FISHERIES MANAGEMENT: THE COSTS OF DELAY

 

Whether we like it or not—and whether we want to admit it or not—fish stocks can decline.

Most of the time, such decline is the direct result of commercial and/or recreational fishermen removing too many fish from the population, but that’s not always the case.  Sometimes, environmental conditions can drive a drop in fish numbers.  

We are currently seeing that with striped bass, as five consecutive years of warmer-than-normal winters and warm, dry springs have led to poor spawning success in the Chesapeake Bay (although there is reason to hope that conditions were better this spring, and that 2024 just might produce an above-average year class).  

More ominously, we are seeing warming trends in places like the Gulf of Maine push fish out of their traditional range; sometimes, they can successfully move farther north or out into deeper, cooler waters, but a species’ ability to do so is not guaranteed.

Yet, in the end, the cause of a fish stock’s decline is probably less important than fishery managers’ response to the dropping numbers.  Whether a decline is due to overfishing, to increased predation, or to adverse environmental conditions, the needed response is essentially the same: reducing mortality so that the stock may be restored to sustainable levels.

Unfortunately, putting the needed reductions in place, and keeping them in place until the stock fully recovers, is something that is often far more easily said than done.  Consider the plight of Louisiana’s red drum.

The drum aren’t overfished, but they may be experiencing overfishing.  Louisiana fishery managers believe that, in order to maintain a sustainable red drum stock, about 30% of the fish must be able to survive long enough to exceed 27 inches in length—the maximum size red drum that may be retained by anglers (although soon-to-be-defunct regulations permit anglers to keep one fish per day over that size)—and so “escape” into the spawning stock biomass.  In recent years, the red drum escapement rate has fallen to just 20%, and red drum abundance has fallen as well.  Fishery managers have to go back to the 1980s to find a time when recreational red drum landings fell as low as they did in 2021.

The question then becomes what to do about the decline.

Louisiana fishery managers originally proposed reducing fishing mortality by 35%, a move that, in theory, would restore the stock in about 30 years.  While that might sound attractive to some, the big problem is that the farther you push off rebuilding, the more uncertainty creeps into the rebuilding plan.  While it is relatively easy for fishery managers to estimate fishing effort, landings, recruitment and other variables five or even ten years from now, trying to figure out what they’ll be three decades hence virtually guarantees that such estimates will be beset by substantial error.

Thus, a contingent of Louisiana’s fishing guides urged managers to impose greater restrictions—a  50% landings reduction—which would cut the rebuilding time in half, to just 14 years, and make it substantially more likely that such rebuilding would actually occur.

Unfortunately, as long-time Louisiana angler and YouTube personality Todd Masson observed,

“Fisheries management obviously is as political as it is biological, and by that I mean you’ve got to bring the constituency along in steps.  If we did what was biologically prudent, it may not be politically popular.  In fact, certainly in this case, it would not be.”

And comments made by members of Louisiana’s charter boat community demonstrate his point.  While some guides aggressively argued for a shorter rebuilding time others, apparently ignoring the fact that the red drum population was close to a 40-year low, fought any new restrictions.

While Mr. Masson maintains that

“The fishery is nothing, nothing, nothing like it used to be.  It’s a pale shadow of its former self,”

and some guides, echoing such observations, call for additional restrictions, others disagreed.  Ron Price, a guide who operates out of Venice and believes that no additional restrictions are needed, claimed that

“Every guide down there right now in Venice, for example, will tell you:  ‘We’re catching as many redfish that I’ve caught my entire career’ [sic].  That’s a pretty good indicator, when you have 100 guides go out, and every fishing guide will tell you they’re not seeing a reduction in catches.”

Of course, people often see what they want to see, rather than what’s really there, and some Louisiana guides have a reason for wanting to see a healthy redfish stock.  As writer Mike Smith noted in an article appearing on the nola.com website,

“Ron Price…and others point to their experience on the water and warn that new limits on both trout and redfish will badly hurt their charter businesses.

“Louisiana has had looser limits than other Gulf Coast states on both species, a draw for out-of-state anglers.”

So in the end, as far as such guides are concerned, ending overfishing and conserving red drum is less important than conserving their short-term incomes.  They and like-minded anglers had enough political clout to fight off the 50% harvest reduction, and convince the state to adopt a less conservative, if more uncertain, management approach.

Such efforts to stretch out rebuilding times and delay the adoption of needed management measures aren’t limited to Louisiana’s red drum.  They occur far too often, affecting multiple species along every section of the coast.

Perhaps the most blatant example was the mismanagement of the Southern New England/Mid-Atlantic stock of winter flounder.  Here in New York, where anglers once landed about 13.5 million winter flounder in a single year, the species’ decline became apparent in the late 1980s.  The recreational flounder fishery was entirely unregulated at that time, and when biologists at the Department of Environmental Conservation attempted to craft regulations that might help to stem the decline, and perhaps help to rebuild the stock, they ran into stiff opposition from the recreational fishing industry which, like some of the guides in Louisiana, saw regulation as a threat to their incomes.

The party boats, in particular, argued that even though there were fewer and fewer fish around, regulations could not be too restrictive, because their customers needed to maintain the “perception” that they might sometime have a “good day” when they could still take home a full bucket of fish.  Faced with such opposition, the state backed off what Mr. Masson might have referred to as “biologically prudent” regulations, and instead adopted politically expedient compromise regulations.

But winter flounder demonstrated the flaw in Mr. Masson’s argument that “you’ve got to bring the constituency along in steps.”  For as flounder continued to decline, the regulations remained politically expedient, always too little, too late to halt the slide.  Even when the stock had collapsed, the recreational fishing industry battled to kill what few remained.  The bulletin describing the proceedings of the September 2009 meeting of New York’s Marine Resources Advisory Council tells of a party boat captain who said

“describing the winter flounder as a collapsed stock may be inaccurate [because] when he speaks to fishermen, he hears that winter flounder are perhaps not plentiful, but are definitely accessible.”

By 2009, New York’s recreational flounder landings had dropped from about 13,500,000 to just a little over 100,000 fish, but the industry was still intent to squeeze what little blood was left in that dry and crumbling stone.  At the same meeting, a representative of the state’s tackle shops

“not[ed] that the recreational fishing community is in trouble, and they need to have the opportunity to fish…They need to keep the [tackle] shops open.”

Today, New York’s flounder population has fallen so low that 2023 landings were estimated to be just a little over 500 fish—that’s down a long way from the 13.5 million landed four decades ago—yet at the January 2024 meeting of the state’s Marine Resources Advisory Council, there were still party boat captains who asked the state to relax regulations so that their customers could kill more of the few flounder that remain.

Winter flounder, perhaps more than any other species, demonstrates what happens when needed management measures are delayed, because managers try to “bring the constituency along in steps” that are more politically palatable than the "biologically prudent" measures might be.

There is a real risk that the fish disappear.

Right now, North Carolina is confronting a similar issue with southern flounder.

The decline of the southern flounder didn’t happen overnight.  Commercial fishermen, recreational fishermen, years of ineffective management, and a warming ocean all contributed to the species' demise.

StarNews Online, a North Carolina news outlet, notes that

“Dr. Louis Daniel was the former state [of North Carolina] marine fisheries director for nearly a decade…

“He said that the plight the state and flounder fishermen find themselves in today didn’t just happen, but has been an issue for several decades as stock assessments showed pressures growing on the fishery even as rules were put in place to supposedly help it recover…

“Daniel said overfishing and discounting the impacts of discards, especially in the state’s commercial fisheries, is hampering stock recovery efforts—even as many fishermen claim that they are seeing more flounder on the water than they’ve ever seen before.”

Because, like some of the Louisiana guides, fishermen who make money from a fishery almost always see what they want to see, regardless of the reality.

Eventually, North Carolina regulators followed the science, and decided not to open the recreational flounder fishery this year, due to anglers’ exceeding their quota in 2023. 

It’s possible that such action might mark the beginning of the flounder’s recovery, although it’s hard to argue that, had meaningful—that is, “biologically prudent”—regulations been adopted a long time ago, such closure might not have been needed.

But before we blame state fisheries managers for delaying action, we should think about blaming state politicians instead, for as was the case with Louisiana red drum, politicians often prevent biologists from doing what’s needed, and what they really want to do.  That’s a particular problem at the state level, where both the legislature and the governor’s office are more accessible to special interests than they are in Washington, where it takes a little more influence (and money) to get through the door.

Thus, despite all the protestations we hear coming from the angling industry and the “anglers’ rights” organizations, state fisheries management is far from ideal, and is often problematic.

In fact, had the fisheries described above been federal waters fisheries, many of the problems could have been avoided, for the beauty of the Magnuson-Stevens Fishery Conservation and Management Act, which governs federal fisheries, is that it largely takes politics out of the picture.  Yes, politicians fret and fume when their constituents aren’t allowed to kill as many fish as they might like, and they may, from time to time, make little tweaks to the law in an effort to satisfy a few voters.

But Magnuson-Stevens brings something to fisheries management that is absent from most state programs:  Structure.  Overfishing must not occur.  Overfished stocks must be rebuilt, and within a time certain, making the sort of delays seen in the Louisiana red drum scenario impossible to maintain.

And science, not politics, must drive fishery management measures.

That doesn’t mean that Magnuson-Stevens is perfect.  Sometimes, it can seem a bit arbitrary, and its insistence on managing according to “the best scientific information available” can sometimes force managers to rely on very uncertain data.

Still, when we look at federal fisheries, it is difficult to find many—or any—recent situations where stocks have been allowed to languish, or even wither away, because managers have given in to politics and delayed “biologically prudent” management measures.

And given the cost of such delay, to both fish stocks and to fishermen, that fact alone stands as mute testimony as to why state fishery management systems do not yet live up to the example set by their federal counterparts.

 

NMFS SEEKS TO IMPROVE RECREATIONAL FISHERIES DATA

 

Every so often, I think about a sign that I’ve seen in some auto repair shops, and in other places where similar work is done, which read something like:

“You can have it done right, done cheap, or done fast.  Pick two out of three.”

Such sentiments don’t only apply to the skilled trades.  I used it more than once during my tenure at Barclay’s Capital when salesmen, worried that their new customer, and thus their commission, would soon fade away, complained that negotiating a contract was taking too long and was putting the new relationship at risk (although, at that place and time, I’d note that “cheap” was always a given, so that the only remaining choice was between getting the job finished fast or putting the agreement together in the right way).

It has recently struck me that the same principles apply to collecting the data needed to properly manage recreational fisheries.

Certainly, as at my former employer, “cheap” is always a big consideration for fisheries managers, not because they or their agencies want it that way, but because they’re never appropriated sufficient funds to carry out their duties that they’re assigned.  The North Carolina legislature’s recent decision to force that state’s fisheries managers to develop and maintain a system to support mandatory catch reporting, without providing long-term funding for the personnel needed to make the system work, is just one example of that sort of issue, but we can rest assured that managers in other states face the same sort of issues. 

Nor is it merely a state concern; politicians love to attack the federal recreational fisheries data, but they are very, very slow to appropriate the funds needed to not only fix the known issues impacting the fishery management system, but to enhance the system to make its estimates both more timely and more accurate.

Individual anglers aren’t much better.  Here in New York, as elsewhere, we hear constant complaints about the recreational black sea bass regulations.  Anglers, and members of the angling industry, complain that the rules are too restrictive, and speculate that the landings estimates far overstate the number of fish that anglers retain.  Yet, just last year, when the State of New York floated the idea of a recreational fishing license, which would generate revenues that would, among other things, be used to enhance recreational data collection, it met with enough resistance, much from the same persons who slam the current landing estimates, that the effort to introduce a license was shelved.

It seems that the state’s anglers wanted better data, as long as they didn’t have to pay a red cent to get it.  On the other hand, they can keep on complaining for free.

We see something similar when it comes to the speed at which recreational effort, catch, and landings data can be completed.

Annual catch limits govern the landings of all federally-managed recreational species (with the arguable exception of the Mid-Atlantic Fishery Management Council’s “Percent Change Approach” used to manage summer flounder, scup, black sea bass and, eventually, bluefish, although that approach is currently being challenged in the courts and may not survive).  Each year, fishery managers must craft regulations that will allow anglers to catch most of their allotted fish, but at the same time prevent them from exceeding the annual catch limit.  The Marine Recreational Information Program, which is used to estimate recreational catch and landings and to advise the regulatory process, is a sort of blunt instrument when used for such purpose, both because angler behavior changes from year to year, making predictions difficult, and because there is some level of uncertainty in every estimate made. 

Often, despite managers’ best efforts, the resulting regulations either prove to be too restrictive, and unnecessarily restrict landings, or not restrictive enough, and allow landings to climb well above the recreational limit.  However, the adequacy of regulations can only be determined well after the season has closed.  Generally, preliminary landings information for any two-month “wave” only becomes available about 45 days after such wave ends (thus, information for landings in Wave 3, May and June, won’t be available until around August 15), while final annual estimates don’t come out until April 15 of the following year, severely limiting their usefulness in the regulatory process.

But this is where the tension between doing something fast and doing something right kicks in.

While MRIP estimates have a solid statistical base, errors nonetheless creep in.  Thus, the National Marine Fisheries Service doesn’t release the data as soon as it is compiled, but instead conducts a review to look for possible sampling error and anomalous estimates.  As NMFS notes on the MRIP website,

“Our staff practices quality assurance and control measures before our estimates are published.  We check for errors in data entry and investigate any unusual changes in catch and effort trends.  We also involve NOAA Fisheries’ regional offices and science centers, who have on-the-ground knowledge, in the review of preliminary estimates before they are published.”

As part of the quality control process, NMFS will

“Manually review our estimates for potential errors at each step of analysis.  Regional partners are able to flag unusually high or low (outlier) estimates based in their familiarity with local fisheries and fish stocks.”

Also, NMFS will

“Use statistically backed approaches to systematically identify outlier estimates.  [It considers] several factors to investigate the reason for a sudden increase or decrease and determine whether corrections must be made.  For example:  Is the estimate based on a small sample size, or influenced by an unusual data point?  Did a weather event or change in fishing regulations cause a spike or sharp decline in related fishing activity?”

While that process significantly increases the quality of MRIP’s estimates, it also takes a substantial amount of time to complete.  That time lag can lead to problems in some popular fisheries, where timely data would allow active, in-season management that could respond to changing trends in recreational landings.

The black sea bass fishery in New England and the mid-Atlantic has seen anglers chronically exceed the relevant catch and landings limits; no management approach yet tried has been able to constrain the excessive harvest.  More timely data, that would allow managers to shut down the fishery when relevant limits were exceeded, would be a big step forward in black sea bass management.  But such data just isn’t there.

Some individuals and organizations have suggested that NMFS allow or require anglers to directly report their catch, perhaps through a smartphone app.  Unfortunately, such samples can easily be subject to high levels of uncertainty, attributable to angler noncompliance, incorrect data entry (either accidental or intentional), some anglers’ unfamiliarity of or lack of electronic devices, etc.  Unlike MRIP data, such electronically collected data could be compiled and made available much more quickly, but it would not be subject to the same quality controls, and would be badly lacking in precision.

However, some progress seems to have been made in the Gulf of Mexico, where the five Gulf states, working with NMFS, have developed supplementary data collection programs which have been certified as compatible with, and thus suitable enhancements to, MRIP.  Unfortunately, such data enhancements have only been extended to a handful of species, primarily red snapper.  And even though they were developed in conjunction with NMFS, and certified to be compatible with MRIP, each one works in a slightly different way, so that the output from each state’s data collection program must be adjusted so that it reports catch in the same “common currency” as MRIP, which is necessary before it can be used in stock assessments and to set state regulations.

Still, the Gulf red snapper programs have proven reliable enough to convince NMFS to attempt similar data enhancements elsewhere.  Yesterday, NMFS announced its plans to “re-vision” the recreational data collection process by creating processes that produce data that is

“Nationally coherent, regionally specific.”

More specifically, NOAA is seeking partnerships with state management agencies, and perhaps other entities, in the hope of improving the data collection process.  In that regard, one of the goals of the new data initiative is

“Supporting state and regional partners in the Atlantic, West Coast, Gulf of Mexico, Alaska, and Hawaii in the development and certification of additional state data-collection programs to produce more timely and precise catch and effort estimates for key regional species.”

That’s a worthwhile goal.

While there will always be naysayers who question the worth of MRIP, regardless of how many improvements might be made, and others—or perhaps the same people—who will try to arbitrage the findings of state and federal programs, supporting whichever one allows anglers to kill more fish, improving the MRIP program to make it more responsive to managers needs is something that deserves every angler’s support.

Good management requires good data, so in the end, a better MRIP benefits everyone.  With luck, NMFS will be able to put together a data collection program that provides better data faster, and does so at a reasonable cost.

Should that ever happen, we’ll all have to rethink the old rule.  Maybe it will be possible to have it all, and no longer necessary to just pick two attributes out of those three.

 

 

 

 

UNREALISTIC HOPES FOR RECREATIONAL CATCH REPORTING IN NORTH CAROLINA

 

Toward the end of last April, I wrote a piece about a new initiative in North Carolina that would require recreational anglers (as well as commercial fishermen) to report their landings of flounder, weakfish, red drum, spotted seatrout, and striped bass, beginning this December. 

In that piece, I noted that the initiative was the brainchild of the North Carolina legislature, and was not proposed by the state agencies that had real expertise in fisheries management.  I also noted that the reporting system was going to have to be built from scratch, which may be a difficult task to complete by December, and that there was no guarantee that the state’s fisheries management agencies had either the money or the personnel to maintain and operate such system on a continuing basis, much less collate, analyze, and employ the data it develops in any meaningful way.

I also noted that there was no realistic way to enforce a supposedly mandatory recreational reporting system, since once an angler had returned from fishing at the end of the day, enforcement authorities have no way of knowing either that the angler had been fishing or that any reportable fish had been caught, unless law enforcement agents contacted the angler during the fishing day, such angler had reportable fish in their possession at the time of contact, and the enforcement personnel followed up to make sure that a report was filed—a labor-intensive procedure that would surely take up time far better spent in more meaningful enforcement activities.  For that reason, I suspected that anglers would be slow to comply with the reporting requirement.

Yet, there are those who believe that such mandatory reporting is a good idea.  One of those people is Chad Thomas, the executive director of the North Carolina Marine & Estuary Foundation, who worked hard to convince the state legislature to enact the mandatory reporting law.  Mr. Thomas recently published an opinion piece on CoastalReview.org, a website maintained by the North Carolina Coastal Federation, in which he argued in favor of mandatory recreational reporting.  His thoughts are worth reading, and provide fertile ground for comment.

Solely with respect to recreational data collection (he also commented on commercial data, but that is outside the scope of this essay), Mr. Thomas wrote,

“Despite the significance to our economy and culture, those responsible for maintaining a robust fishery population have precious little data to guide their efforts…

“…without reliable numbers, many policy decisions will be wrong, risking the very existence of critical species in our coastal waters, unnecessarily limiting recreational fishing seasons, and ultimately harming the entire fishing industry…

“On the recreational side, the data used to inform fishery management decisions is collected through a federal survey process known as the Marine Recreational Information Program.  With rare exceptions, this annual data stream is the only source of recreational harvest data used by state fish agencies to set size limits, daily creel limits, and season lengths.

“Not shockingly, the federal surveys have their limitations, and in August 2023 new sources of error were identified that brought the survey program to a halt through at least 2026.”

It all sounds good, and it’s nearly impossible to disagree with Mr. Thomas’ basic premise:  Effective fisheries management is based on reliable data.  However, Mr. Thomas’ comments in support of the North Carolina legislature’s reporting scheme often veer wide of the mark.

To begin, there is no reason to believe that the reporting system ultimately adopted by North Carolina will provide the “reliable numbers” that Mr. Thomas calls for.  In discussing accuracy and error in recreational data surveys, the Marine Recreational Information Program Data User Handbook informs us that

“Coverage error occurs when members of a target population are omitted, duplicated, or wrongly included in a sample frame.”

The Access Point Angler Intercept Survey used to sample recreational catch, landings, and effort is designed to include all members of the target population—that is, it is designed to capture a representative sample of fishermen that includes all demographic categories in the same proportion that such categories are present in the angling population.  While the North Carolina survey currently being developed would ideally capture every striped bass, red drum, speckled trout, flounder, or weakfish landed by recreational anglers in North Carolina waters, such ideal is not at all realistic.

Instead, different segments of the angling population will have different compliance rates, and because there is currently no provision for either determining such differing compliance rates or adjusting the raw data to take compliance rates into account, the reporting data will almost certainly be biased by what is called “coverage error.”  For example, is a more educated and more affluent angler fishing primarily for recreation more or less likely to report their catch than is a less educated angler who fishes for food, to supplement what they can afford to buy at the grocery store?

Will boat fishermen, pier fishermen, beach fishermen, backwater fishermen, and those who fish from for-hire vessels all report at the same rates, or will the rates differ from group to group?

Will there be racial or ethnic differences in reporting rates?  In that regard, is an angler who speaks English as a second language, particularly if they aren’t close to fluent, report at the same rate as a native English-speaker?

Will reporting differ by age and by familiarity with any technology that may be used to file reports?  Will a serious angler, who fishes multiple times each week, report at the same rate as the weekend warrior or the angler who only fishes a few times each year?

I could come up with other such questions, but you get my point.  MRIP gets around such questions by directly contacting and interviewing the anglers present at spots—marinas, launching ramps, fishing piers, parking lots—where anglers access the resource, and thus stands a pretty good chance of encountering anglers representative of the overall population. 

But the proposed North Carolina reporting system, which is reliant on anglers taking the initiative to affirmatively report their landings, relies on anglers’ good faith and willingness to comply, which is certainly not a given.

In addition, the scope of the North Carolina reporting system will be too limited, for only landings need be recorded.  While that might work with commercial fisheries, in which every fish caught is landed provided that it meets any applicable minimum size, trip limits, or season, in recreational fisheries, which see many fish released even though they might be legal to keep, not recording releases creates a significant problem.

For example, looking at just the five species included in the reporting requirements, 99% of the striped bass, 92% of the weakfish, 86% of the red drum, and 82% of the spotted seatrout (but, supposedly, only 3% of the southern flounder) caught by North Carolina anglers in 2023 were released, and so would not be captured by the proposed survey.  Yet not every released fish survives, and in species that see anglers release significantly more fish than they keep, release mortality can constitute a significant proportion of overall fishing mortality.  In the case of North Carolina striped bass, for example, the roughly 10,000 fish expected to succumb to release mortality (if the generally accepted 9% release mortality rate for striped bass is applied) would exceed recreational harvest by an order of magnitude.

The failure to record the number of fish released would thus result in a substantial underestimate of fishing mortality for some species.

The proposed North Carolina reporting system also fails to record effort—the number of times that anglers choose to go fishing.  That is a critical omission, and one that severely degrades the utility of the reported data.  That’s because effort matters.  There is a very big qualitative difference in a fishery where 1 million red drum are caught in 500,000 trips, and one in which it takes 3 million trips to catch the same number of fish.  The former situation might signal a healthy stock, while the latter might indicate a stock in decline, so landings information alone, without the context of effort, provides little useful information.

And speaking of effort, Mr. Thomas is completely wrong when he states that “new sources of error were identified that brought the survey program to a halt through at least 2026.”  While it is true that the National Marine Fisheries Service has reason to believe that its Fishing Effort Survey overstates the number of times that anglers go fishing, and so somewhat inflates catch and landings estimates, NMFS has not halted the MRIP program, but instead continues to survey angler catch, landings, and effort, while remaining mindful of the possible overestimates.

Thus, Mr. Thomas fails to make a compelling case in support of mandatory recreational landings reports.

The failure to record releases or angling effort, and the failure to eliminate sources of coverage error, means that such mandatory reports will not provide the “reliable numbers” that managers need to manage fish stocks.  Mr. Thomas tries to minimize the issues created by angler non-compliance by arguing that

“Reporting big game harvests in ingrained in our culture, although it might shock you to learn that not everyone reports their deer kills.  And here is the remarkable thing—that’s okay!  The data is still valuable.

“Our state wildlife agency doesn’t need 100% accuracy because it monitors trends in the reported harvest—how it compares to last season, where it’s concentrated, and the like.”

But if all Mr. Thomas is interested in is trends, then he—and North Carolina’s fisheries managers—already get that from the Marine Recreational Information Program.  Even with the likely errors in the Fishing Effort Survey, MRIP’s ability to display year-to-year trends remains unchanged.

There is no reason to burden North Carolina fishery managers, or North Carolina anglers, with another reporting program that, at best, will only duplicate data already produced by MRIP.

Any money that might be dedicated to the proposed reporting system would be better used to enhance MRIP surveys within North Carolina, so that more anglers can be surveyed and the uncertainty inherent in any estimate can be reduced.

The North Carolina legislature will probably prove unwilling to admit that it made a mistake, allocate more funds to enhance MRIP, and repeal the reporting requirement, even though that would be the wisest thing to do.  However, we can hope that North Carolina’s example, where significant money and effort will be expended on a program of dubious merit, which was never requested by the professional managers and will provide no recreational data not already provided by MRIP, will dissuade other states from making the same mistake.

IS IT TIME TO GIVE THRESHER SHARKS A HAND?

 

Back in 1971, the late, legendary Captain Frank Mundus, who pioneered recreational shark fishing off Long Island, New York, co-wrote Sportfishing for Sharks, a book that was, and though out of print still remains, the definitive book on that activity.  In the chapter dedicated to thresher shark fishing, Capt. Mundus wrote,

“You could go the full route of your shark-hunting career without ever contacting a thresher.  On the other hand, you might find yourself in an area at a time when they’re fairly numerous.  Their distribution is rather erratic and changeable.  It has been our experience threshers are seldom what could be called abundant.

“Even in one region their distribution can be a study in contrasts.  Off Montauk, New York, for example, we’ve seen threshers breach several times as the pursued small menhaden, and we know of five or six taken in these waters by trollers using wire lines for striped bass.  Yet during the course of a decade we’ve seen no more than a dozen or so hung on the docks at Montauk.”

When I moved out to Long Island a dozen years later, little had changed.

Shark fishermen usually said that they were “going out for makos,” which were abundant back then.  They landed a lot of makos between 200 and 400 pounds, with a lot more under 200 and a very, very few that went close to 1,000.  The fishing held up pretty well throughout the summer.  

Another, far smaller group of anglers specialized in the big tiger sharks—fish of 500 pounds or more—that were surprisingly common around deep structure once the water temperature rose into the 70s.

It was a completely unregulated fishery.  There were no minimum sizes, no bag limits, and no permits needed.  The concept of “prohibited species” had not yet been born, and there were a plethora of shark species available to fishermen.  While anglers said that they were “going out for makos” or targeting tigers, they had a good chance of catching a bunch of blue sharks, large numbers of sandbars, dusky sharks that might weigh anywhere between 20 and 500-plus pounds, the occasional hammerhead, the even more occasional white shark and, every now and again, a thresher.

Offshore fishing tournaments, which either targeted sharks exclusively or included a shark category among others for tuna and billfish, were ubiqutous.  From my dock in Babylon, New York, which lies just inside Fire Island Inlet, I could have fished a tournament every weekend from mid-June through the beginning of August, had I chosen to do so, without having to go very far from home.

While multiple shark species might be brought to the scales, when a tournament boat weighed a thresher, it always drew the biggest crowd, for it was often the first time that most of the folks on the dock had ever seen one.

Fifty years later, things are very different.

The shortfin mako population has crashed, due primarily to too many being caught and killed by the pelagic swordfish longline fleet.  In 2022, the United States, along with all of the other signatories to the International Convention for the Conservation of Atlantic Tunas (which applies not only to tuna, but to “tuna-like species,” which in the inscrutable language of diplomats includes things like swordfish, marlin and, of course, sharks) imposed a complete landings ban on shortfin makos In 2022, theUnited States, along with all of the other signatories to the InternationalConvention for the Conservation of Atlantic Tunas (which applies not only totuna, but to “tuna-like species,” which in the inscrutable language ofdiplomats includes things like swordfish, marlin and, of course, sharks)imposed a complete landings ban on shortfin makos which, because they were valued both for their fight and as food, were the most popular shark caught by recreational fishermen.  With the closure in place, scientists believe that the mako population has a better than even chance to rebuild in about 45 years.

Longliners also crashed the dusky shark population, which is in even worse shape than the makos, and probably won’t reach sustainable levels for at least another century.  They, too, may not be legally landed.  The same is true of sandbar and white sharks which, although showing strong signs of recovery, are still in the rebuilding stage.

Because of the prohibition on mako landings, many shark tournaments, as well as the fishing clubs that depended on them for much of their annual revenue, have shut down, while tackle shop owners and folks manning local gas docks tell me that, for the same reason, far fewer fishermen have been targeting sharks over the past few seasons.

Yet some tournaments, and some recreational shark fishermen, remain.

And their new favorite target, which is both legal to harvest and good to eat, is the common thresher.

That might not have been an issue if local ports still saw very few threshers each year.  But at the same time that other sharks were no longer available to anglers, catches of threshers began to spike.  Where, in the past, I might go a decade or more without having a thresher swim into my chum slick, in recent years, I’ve hooked as many as three in a single day.

That might sound like a good thing, and a sign of increasing abundance, but that’s not necessarily so.  The increase in encounters could be a sign of a growing population, but it could just as easily mean that the fish haven’t grown more abundant, but are merely more catchable, and there’s reason to believe that the latter is true.

With their small mouth and a whiplike tail that can be nearly as long as their body, thresher sharks have evolved to feed on densely schooling fish.  And in the past half-decade or so, the inshore waters off southern New England and the upper mid-Atlantic have seen a sharp increase in both menhaden and chub mackerel, exactly the sort of fish that threshers evolved to feed on. 

As a result, anglers have found thresher sharks right on their doorsteps.  Plenty of fishermen livelining menhaden just outside Long Island inlets, trying to tempt a striped bass, have gotten the shock of their lives after a 200 pound thresher, rather than a 20 pound striper, made off with their bait.  

Savvy shark fishermen have taken advantage of the situation, drifting along in the same menhaden schools as the anglers seeking striped bass, but with tackle designed to battle a big thresher.  I know of such anglers catching threshers weighing more than 400 pounds, while fishing in less than 40 feet of water.

And most of the thresher sharks caught by recreational fishermen are killed.  The Final Atlantic Stark Fishery Reveiw, released last year, notes that

“Common thresher sharks are unique among sharks in the recreational fishery in that they may be the only commonly caught species that is more likely to be harvested than released, with harvested thresher sharks accounting for 60 percent of the total catch.  Harvest estimates from 2014 to 2016 were approximately double or more relative to estimated releases.  The number of thresher sharks released increased significantly between 2017 and 2019 while the number harvested increased slightly after 2016…The bulk of the length distribution ranges from 55-96 inches [fork length] with a median size of 74 inches [fork length]”

The Final Review also notes that

“Prior to the implementation of new management measures in 2018 [that initially substantially restricted, and in 2022 completely prohibited, landing shortfin makos], shortfin mako sharks made up the majority of harvested pelagic sharks.  After that, there was a distinct shift to the common thresher shark, however annual harvest of common thresher shark increased only slightly…The pelagic shark fishery is largely driven by tournament fishing during the early summer months.”

If the thresher stock remains healthy, such catches pose no threat, but they could clearly be a big problem if the stock is in decline.  And the biggest problem of all is that no one knows whether the stock is healthy, because it has never been assessed.

I was recently appointed to the National Marine Fisheries Service’s Highly Migratory Species Advisory Panel, and attended my first meeting a few weeks ago.  Highly Migratory Species, unlike most other United States fisheries are not managed by regional fishery management councils, but instead are managed directly by the Secretary of Commerce, which effectively means that they are managed by HMS specialists at NMFS.  The Advisory Panel, as its name suggests, provides input intended to influence management actions.

So at the May Advisory Panel meeting, I brought up the issue of thresher sharks, suggesting the need for both a stock assessment and, very probably, more restrictive regulations in the face of their growing importance in the recreational fishery.  In particular, I noted that the current 54-inch (fork length) minimum size probably isn’t appropriate for a species that doesn't see 50% of females mature until they are at least  216 centimeters—about 85 inches, or a little over 7 feet—in length.

That’s nearly a foot larger than the average thresher landed by recreational fishermen today.

My suggestion that NMFS consider additional restrictions on thresher harvest, including a substantial increase in the size limit, received favorable comments from others in the room, and no one seemed to oppose it.

After all, in the end it makes sense.

I love shortfin makos for their beauty, their speed, and their magnificent jumps.  But I have always been a big thresher shark fan, admiring both their strength and their refusal to quit.  I’ve had threshers that died on the line rather than give up the fight.

Such fish deserve our respect.

We have already lost much of the mako fishery, although catch-and-release angling is still going on.  Right now, the thresher fishery still seems to be doing OK.  Which makes now the right time to lend it a hand, before it goes the same way as the mako. 

ALASKA BYCATCH, HABITAT DEBATES ON THE FRONT BURNER

 

A little less than two years ago, I wrote something called “Marine Fisheries Management:  You’re Defined by What You Oppose,” which focused on widespread commercial opposition to federal legislation intended to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, which would have afforded forage fish greater protection, done more to preserve essential fish habitat, and required commercial fishermen to make a greater effort to avoid bycatch of non-targeted species, and the resultant discard mortality.

As I noted at the time,

“The fishing industry opposes [the legislation] because it 1) extends more comprehensive protection to the small forage fish that all of the larger fish, along with birds and marine mammals, feed on, 2) would better conserve essential fish habitat, and 3) seeks to minimize the incidental catch, and associated dead discards, of non-target, non-salable fish and other components of the target species’ ecosystem.

“And then they justify such opposition by arguing that such measures are unrelated to ecosystem health.

“It’s hardly a pursuasive argument.  Even more telling are the [industry’s] comments about ‘balance[ing] complex competing interests’ and ‘severely restrict[ing] some of our nation’s largest commercial fisheries’ for, although it remained unsaid, some of ‘our nation’s largest commercial fisheries’ are also the fisheries that place the greatest pressure on forage fish stocks, do the most damage to essential fish habitat, and cause some of the most serious bycatch issues.”

To illustrate my point, I turned to the (supposedly) mid-water trawl fishery for walleye pollock, which takes place off Alaska.  It is the largest commercial fishery in the United States, which in the course of harvesting about 3.3 billion pounds of pollock per year ( also generates something in the vicinity of 50 million pounds of bycatch of various species (this is according to the pollock industry itself, which claims that

“more than 98 percent of the catch in the [Bering Sea Aleutian Islands] Alaska pollock fishery has been pollock,”

but, with 3.3 million pounds of pollock being landed, well, you can do the math.)

That bycatch leads to some interesting situations, including regulations that allow the pollock trawlers to kill thousands of Pacific salmon at a time when Native Alaskans, who have historically depended on such fish for a substantial portion of their diet, are allowed to harvest few or none.

It wasn’t a complimentary piece, and drew one unhappy comment from a spokesman for the pollock fleet, but the issue did not fade away.  In fact, it is now more in the forefront than ever.

To oversimplify, the dispute puts the big pollock factory trawlers, which are generally owned by corporations headquartered  in the states of Washington and Oregon, but head up to Alaska to catch plentiful but low-value pollock (the approximately 2.7 billion pounds of walleye pollock landed in 2022 sold for just under 19 cents per pound), against Alaska’s small-boat commercial fishermen, recreational fishermen, and subsistence fishermen, many of whom belong to Native Tribes, who believe that their opportunities to catch chum and chinook salmon, tanner crab, and other high-value or culturally significant species have been negatively impacted by the big trawlers’ bycatch and the damage that the trawlers’ nets, which are meant to fish in the middle of the water column, allegedly cause when they come in contact with the ocean floor.

A similar dispute is underway between large trawlers which fish for other species of groundfish (which are just what the term suggests, fish typically found near the ocean floor) and commercial and recreational halibut fishermen, who believe that trawler bycatch is causing real harm to both the halibut and to the halibut fishery.

The situation has been exacerbated by the fact that, while the directed harvest of some species, at least in some waters, is now prohibited by law—for example, United States and Canadian fisheries managers recently agreed to shut down the fishery for Canadian-origin chinook salmon in the Yukon River for the next seven years, while a similar closure was put in place in the Alaskan portion of the river a few years ago—the trawler  fleet may legally catch and kill the same species as bycatch.

The Anchorage Daily News quotes Maurice McGinty, an 80-year-old Native American who had just dipped into his last jar of smoked chinook salmon, and noted,

“We have no more now.  They are pushing us, and our traditional way of life, into a hole.”

Despite such outcomes, the big trawlers oppose any new restrictions on bycatch, worried that it will harm a fishery that grossed over a half-billion dollars in ex vessel landings in 2022. 

That doesn’t mean that the trawlers aren’t doing anything to reduce salmon bycatch.  In recent years, they have made a conscious effort to avoid “hot spots” in the ocean that host large numbers of salmon.  

Still, small-scale fishermen note that, while there is a hard cap on chinook salmon bycatch in the trawl fisheries for both pollock (25,000 fish) and for other groundfish (32,500 fish), which can lead to a fishery being shut down if the cap is exceeded, there is no cap on the culturally important chum salmon fishery.  Over the past decade, the pollock trawlers have unintentionally killed about 315,000 chum salmon each year but, perhaps because of the greater attention being paid to bycatch in recent years, managed to cut that number to just 112,000 chum salmon in 2023.

Nevertheless, Tribal leaders are asking the North Pacific Fishery Management Council to impose a hard bycatch cap of no more than 200,000 chum salmon, and preferably fewer, on the pollock fishery.  The pollock fishery is pushing back, arguing, according to the Anchorage Daily News, that

“hard caps are blunt tools that are unlikely to achieve what the tribes are pushing for: more salmon returning to Western Alaska rivers.

“That’s because genetic analysis shows that a little more than half the chums swallowed by trawl nets aren’t actually Western Alaska salmon—they’re salmon that came from Russian and Asian hatcheries, which have sharply increased their releases in recent years.

“Western Alaska fish, on average, make up just 19% of trawlers’ chum bycatch.  And industry officials say that a cap that doesn’t distinguish between those areas of origin could actually push their boats into areas where they’re catching Yukon and Kuskokwim fish at higher rates, even if the total number of chum is lower.”

Whether that’s a legitimate argument, or merely something the trawl industry offered up to avoid unwanted regulation, isn’t entirely clear.  But then, that sort of uncertainty is typical of any allocation argument—and let’s be perfectly clear that this is an argument about allocation, even if the central debate is between what the directed salmon fisheries are able to harvest versus what the pollock trawlers are able to incidentally kill, rather than what different sectors are each able to harvest and use—when those on the fat side of the allocation are trying to hang on to what they have, while those on the other side are reaching out for more.

But the debate over the pollock fleet isn’t limited to bycatch issues.  Alaskan crabbers are calling for more restrictions on the nets used by the pollock trawlers, alleging that such supposed “mid-water” or “pelagic” trawls, which are intended to fish relatively high in the water column, are actually scraping the bottom for much of the time when they’re deployed, and damaging habitat important to many species, including red king crab, along the way.

While bottom trawls may not be used in about half of the waters under the jurisdiction of the North Pacific Fishery Management Council, due to the damage that they cause to bottom habitat, similar restriction do not apply to mid-water trawls, even those which remain in contact with the bottom for extended periods.

Although the Council has been reluctant to impose further restriction on the mid-water trawlers, the issue has caught the attention of Rep. Mary Peltola (D-AK).  Last week, Rep. Peltola introduced two bills that are intended to address the bycatch and habitat destruction issues.

The more restrictive of the two bills is the so-called “Bottom Trawl Clarity Act,” which would require regional fishery management councils to create

“a definition of the term ‘substantial bottom contact’ as compared to the term ‘limited bottom contact’ when used to describe how often fishing gear interacts with the seafloor; a monitoring and enforcement plan to ensure that any pelagic trawl fishing activity that is carried out by a fisher managed by [a] Council has limited bottom contact; and a list of each gear type that has substantial bottom contact based on the definition [described above]. [formatting and internal numbering omitted]”

The legislation would also, among other things, require that each regional fishery management council designate Bottom Trawl Zones where trawls that make substantial bottom contact may be used, with such trawls outlawed in the remainder of the area under the jurisdiction of the council.  In explaining why such legislation is needed, Rep. Peltola’s office issued a statement which read, in part,

“Bottom trawling…is…the cause of one of the most widespread human impacts on the seabed and is relevant globally.  The net rolls over the ocean floor as it is pulled, destroying complex habitats, kicking up sediment, and wounding or killing any other animals in the way.

“Midwater—or pelagic—trawl is designed for fishing in the middle of the water column with minimal or no interaction with the seafloor habitat.  However, when considering the seafloor impacts of pelagic trawl, the North Pacific Fishery Management Council assumed bottom contact of up to 60% seafloor contact for small pelagic trawl vessels and up to 100% for factory catcher/processors.

“The consequences of intensive bottom trawling are severe, leading to the harm and death of non-target species.  The Red King Crab Savings Area, established in 1996 to protect the Red King Crab seafloor habitat, is permanently closed to bottom trawling but remains open to midwater.  However, if midwater nets are assumed to make bottom contact up to 100% of the time, it begs the question: what truly distinguishes midwater from bottom trawling?”

That’s a question that the pollock fleet has yet to answer.

Instead, it has made vague statements in opposition to the bill, claiming that it would impose

“unworkable and burdensome new federal mandates on regional decision-makers,”

and has noted that

“The [North Pacific Fishery Management C]ouncil has been looking at pelagic gear definitions, the enforceability, and they continue to look at that.  And that’s where we feel the work needs to be done.”

However, the pollock industry has never made a clear statement as to just why the requirements of Rep. Peltola’s legislation would prove “unworkable.”  Nor has it explained why, if the North Pacific Council is already looking at definitions for “pelagic” net gear, the bill would significantly upend the council process, as it merely requires them to stop “looking at” a definition for midwater trawls and actually put such definition in place within a year of the bill’s passage.

That hardly seems unreasonable, unless you’re one of those folks that wants to see talking go on forever, forestalling action so long as it does.su

And it seems that there is one constant in legislative politics:  Whenever someone pulls out the “burdensome new federal mandates” line when they’re opposing a bill, it’s almost always because they have nothing more substantive to say.

Rep Peltola’s second bill, the “Bycatch Reduction and Mitigation Act” would impose no new mandates on any existing fishery.  Instead, it would reauthorize the Bycatch Reduction Engineering Program, and increase the annual funding for such program from $3 million to $10 million, and also make other funds available through the Bycatch Mitigation Assistance Fund, which is administered by the National Fish and Wildlife Foundation.

The latter bill has been cosponsored by Rep. Garret Graves (R-LA) and Rep. Jared Huffman (D-CA).

While Rep. Peltola recognizes that she introduced both bills late in the congressional term, and that neither one is likely to be passed this year, she does think that they will elevate the conversation on bycatch and pelagic trawl issues.

In the end, much of the debate will come down to the question of whether, as a matter of policy, it is acceptable for a large, well-capitalized and very profitable industry, largely based in one state, to fish off another state’s shores and, in doing so, destroy a significant quantity of the marine resources that smaller-scale local fishermen need to survive.

It will come down to a simple question of whether it is acceptable to sacrifice subsistence fisheries and smaller-scale commercial fisheries in order to maintain, and perhaps provide the opportunity to increase, the profits of a large-scale commercial fleet.

It is still too soon to determine how those questions will be answered.

But the answer, when it comes, will tell us much about the values of the nation’s fishery management system, and of the people who make the eventual call.

 

 

 

 

 

 

LITIGATION CHALLENGES MENHADEN REDUCTION INDUSTRY

 

For many years, activists of various stripes have tried to shut down the menhaden reduction fishery in the waters of the Atlantic and Gulf of Mexico. 

While there is no question that the reduction fishery has a public relations problem—it is a highly visible fishery, which generally fishes fairly close to shore, removes large quantities of menhaden, an important forage species, from the ocean (in 2022, Virginia menhaden landings were very slightly under 300,000,000 pounds, about 90% of which are attributable to the reduction fleet), and is occasionally responsible for massive net spills that see thousands of dead and decaying menhaden wash ashore on public beaches and in people’s back yards—the most recent stock assessment update for Atlantic menhaden found that fecundity, which is used as a proxy for biomass, is well above the target level, while fishing mortality remains well below target.

In the Gulf of Mexico, a stock assessment update released in 2021 shows that Gulf menhaden are neither overfished nor subject to overfishing, that the fishing mortality rate in the terminal year is near the lowest values recorded in the entire 40-year time series, and that the biomass of age 1+ fish is not far from the high for such time series.

The fact that the stocks remain healthy despite the reduction fleet’s substantial removals cuts the legs out from under the fishery’s foes, who can find no scientific support for claims that the reduction industry is doing coastwide harm, although there remains the yet-unconfirmed possibility that it may be causing localized depletion in the Chesapeake Bay, and perhaps elsewhere.

Thus, deprived of any scientific arguments to support their efforts to reduce reduction landings, some anti-redution fleet activists have now opened a new front in the fight—litigation aimed at Alpha VesselCo, LLC, the only United States company still engaged in harvesting menhaden for the reduction fishery, as well as its owners, some employees, and its supposed foreign and domestic affiliates.  In particular, the lawsuit targets Cooke, Inc., the Canadian holding company that owns or controls all of the others, allegedly including Alpha VesselCo,

The lawsuit takes a unique approach.  The plaintiffs claim to act on behalf of the United States, pursuant to the provisions of the federal False Claims Act, arguing that the defendants knowingly and fraudulently failed to comply with federal laws that require fishing vessels operating in U.S. waters to be at least 75 percent owned by citizens of the United States.  

The first paragraph of the 57-page complaint alleges that

“This is a False Claims Act suit regarding ‘figurehead fraud.’  This case concerns the control of a large fleet of fishing vessels by a foreign seafood conglomerate called Cooke Inc. and its subsidiaries, affiliates, officers, and employees (‘Cooke’).  Under the American Fisheries Act of 1998 (the ‘AFA’ or the ‘Act’) foreign citizens like Cooke may not have de facto ‘control’ over any vessel that engages in commercial fishing in United States waters (the ‘AFA Citizenship Requirement’).  Defendants have been violating that ‘control’ prohibition since 2017.  Defendants created a supposedly independent domestic shell company to nominally own the vessels, but they installed a long-time Cooke employee—who also happens to be the nephew of the Cooke CEO—as a figurehead to ‘own’ that entity on the understanding that actual control would be exercised by Cooke.  Then, to fish in United States waters, Defendants falsely certified to the Maritime Administration (‘MARAD’)—an agency of the United States Department of Transportation (‘DOT’)—and the United States Coast Guard (‘Coast Guard’) that the vessels’ owner complied with the AFA Citizenship Requirement.  Defendants also concealed from MARAD multiple close connections between Cooke and the vessels’ nominal owner, including that he is a long-time Cooke employee and the Cooke CEO’s nephew.  As a result of their fraudulent scheme, Defendants have illegally harvested from United States waters many millions of dollars’ worth of fish to which they are not entitled.”

The plaintiffs are asking that the court award the United States damages that might, according to the plaintiffs, range somewhere between a few hundred million and two billion dollars.  

When a private citizen brings a claim on behalf of the government pursuant to the False Claims Act, the complaint is not immediately served on the defendants.  Instead, the law requires that

“A copy of the complaint and written disclosure of substantially all material evidence and information the [plaintiff] possesses shall be served on the Government…  The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.  The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information,”

although the law also gives the government the right to petition the court for additional time to evaluate the claim and respond.

If the government chooses to intervene and proceed with the action, it has the primary responsibility for prosecuting the matter, although the original claimant may remain a party.  In such case,  the original claimant is entitled to receive between 15 and 25 percent of any damages paid by the defendant,

“depending upon the extent to which the person substantially contributed to the prosecution of the action.”

In this case, the court granted the United States a substantial extension of time to evaluate the evidence and other information provided by the plaintiffs.  The complaint was originally filed with the federal District Court for the Southern District of New York in 2021, but it was not unsealed, and service on the defendants was not permitted, until April 2024, by which time the government, having reviewed the relevant evidence, decided that it would not intervene and would take no active role in the matter.

While that means that the plaintiffs will have to prosecute the case on their own, it also means that they would receive a larger award—between 25 and 30 percent of any judgment—should they ultimately prevail in the action.

So what are the chances that the plaintiffs will, in the end, prevail?

That’s impossible for a bystander to say.

On one hand, the fact that the government opted against intervening might suggest that a win was far from assured.  

To prevail, the plaintiffs must demonstrate that the Cooke violated the False Claims Act because it

“knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; conspires to commit a violation of [any provision of the False Claims Act]; has possession, custody, or control of money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property; is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true; knowingly buys, or receives as a pledge of an obligation or debt, public property from an official or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge property; or knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.  [formatting and internal numbering omitted]”

If the complaint is taken at face value, and the plaintiffs really did omit critical information from the documents submitted to MARAD and the Coast Guard when they claimed that their menhaden fishing vessels were at least 75% owned and controlled by United States citizens, did such omissions constitute a violation of the False Claims Act?

Ultimately, that’s what the court will have to decide, and it may well decide in the plaintiffs’ favor, but to do that, the plaintiffs will need to convince the jury—for they did request a jury trial—that such omissions were done “knowingly” and were “fraudulent.”  

That might not be too easy to do.

The complaint makes it clear that the documents filed with MARAD and the Coast Guard were not prepared and filed by the defendants themselves, but by a well-established law firm.  So long as defendants fully disclosed all relevant facts to their attorneys, made inquiry as to the legality of their actions, was advised that their conduct was legal, and relied in good faith on counsel’s advice, they could avail themselves of an “advice of counsel” defense.  Such defense, while only one consideration among others, would make allegations of knowingly and fraudulently omitting or misstating critical information significantly harder to prove.

Yet, while that may be true, it’s also important to note that plaintiff’s counsel, the New York City firm of Holwell Shuster & Goldberg LLP, seems to be a very capable firm, which specializes in complex commercial litigation, financial litigation, and similar matters.  While no one knows just how it is being compensated for its work in the menhaden case—which it may even have taken on as a “pro bono” matter, for little or no fee—its website notes that

“In order to manage client expenses, maximize efficiencies, and insure that HSG’s efficiencies interests are fully aligned with our clients’, HSG seeks whenever possible to implement fee arrangements based on agreed measures of value rather than on the billable hour.”

Such language strongly suggests that the firm prefers to take cases on a contingency basis—that is, by agreeing that the client only pays legal fees if they win the case, at which point the firm would receive a set percentage of the award—or, perhaps, by meeting a particular milestone (e.g., a settlement in which Cooke agrees to sell the vessels currently used to catch menhaden).

Under such circumstances, law firms rarely agree to take cases that they think they are likely to lose.

So, once again, without knowing what evidence the plaintiffs will reveal, and how the defendants’ counsel will argue their case, any predictions on which side might prevail are very premature.

Still, we can speculate about other matters, including just why the action was brought.

The plaintiffs, W. Benson Chiles, a consultant on fisheries issues, and Chris Manthey, a professional investigator who has worked with various conservation groups, have been down this road before, suing Omega Protein in 2010, about a decade before it was aquired by Cooke, but was already the largest company participating in the menhaden reduction fishery.  At that time, they alleged that some of the fish oil supplements marketed by Omega for human consumption contained unacceptable levels of PCBs.  That matter was ultimately settled before trial.

Based on that history, a general desire to undermine the menhaden reduction fishery can probably be assumed.

Beyond that, outside of possibly getting a piece of any jury award, it’s not particularly clear what the lawsuit will accomplish.

It will have no impact on the permissible size of the menhaden harvest; the fecundity/biomass and fishing mortality reference points will remain unchanged.

Anyone who believes that the suit would end the reduction fishery is almost certainly kidding themselves; somewhere between 250 million and 300 million pounds of potential product, swimming just off Virginia alone (Gulf landings are even higher) is going to draw interest and investors.  At best, plaintiffs winning the suit might force a change in the ownership of what was once Omega’s menhaden fleet.  The new owners would probably charge Cooke more for menhaden products than its allegedly captive fleet did, but that would only take things back to the status quo before Cooke acquired Omega; it would hardly be enough to kill the fishery.

And, while a big cash judgment might slow Cooke down for a while, it probably wouldn't be fatal.  With annual revenues of more than $4 billion, the company probably generates enough cash flow to absorb the hit, although it might need some financial help to ride out the storm.  It’s even possible that the judgment would be entered against a subsidiary, perhaps Omega, but not against the holding company itself, and so result in a less damage.

Given that Cooke is one of the largest seafood companies in the world, with operations that stretch from Japan and Australia east to central Europe, and from Alaska south to Chile, even if it was forced into insolvency, it would not just disappear.

It might be able to restructure its obligations, and remain an independent business.

It might be acquired for pennies on the dollar by another conglomerate that pays off any remaining debt, so that instead of dealing with a Canadian company and Canadian ownership, regulators and others would then have to deal with a company based somewhere else in the world, perhaps Norway, Japan, or China.  

Or maybe it would be sold off in parts, but even if that happened, each aquaculture facility would likely still need the same amount of fish meal that it needs today, so the market for menhaden products, at least for that use, probably will not change.

Yet whatever the possible outcome, it will take a while for the parties to get there.  The complaint was filed in 2021, and was just served this year.  Before the case can be tried, the litigants will have to go through the discovery process, taking depositions, serving interrogatories, and demanding the production of various documents, emails, etc., all of which will have to be analyzed and placed in proper context before they are used, or not used, at the trial.  Motions to dismiss and motions for summary judgement will almost certainly be filed, and each will take time to resolve.

When all is said and done, and the court’s backlog of cases is taken into account, the plaintiffs will be lucky to have the case heard in 2026—if it can begin that soon.  Should Cooke come out on the losing side, it will undoubtedly take an appeal to the U.S. Court of Appeals for the 2^nd Circuit, and if Cooke loses there, it might well take the final step of appealing the issue to the Supreme Court, although with that court able to hear only 100 or, at best, 150 cases each year, while receiving about 7,000 potential appeals, the odds don’t favor the high court ever agreeing to hear the case.

It's not inconceivable that the matter won't be resolved until 2028, or some later year.

Whenever the final judgment is rendered, the conservation benefits of the lawsuit are hard to discern.

While the litigation might well vex Cooke and ultimately cost it a lot of money, might clarify what a foreign entity must do (and not do) to access fish from United States waters, and might possibly put a big wad of cash in the plaintiffs’ pockets, it will do nothing to change the way Atlantic menhaden are managed, will do nothing to improve menhaden habitat, and will do nothing to increase the fecundity of the menhaden stock—although that’s already higher than it needs to be to maintain a healthy fishery at current harvest levels.

But it will still be an interesting thing to watch.