ADDENDUM III: THE STRIPED BASS COULD LOSE THIS ROUND

 

The Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board will meet all day next Wednesday—October 29—to debate Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, and there’s probably at least a 50-50 chance that its decision won’t bode well for the resource.

I say that for a number of reasons.

The issue of closed seasons—something never imposed on the coastwide striped bass fishery before—has clouded the conservation debate, with many anglers seemingly more concerned with when and if they will be able to fish than whether they will have anything to fish for when they do.  The possibility of a “no-target” season, when even catch-and-release would be illegal, has proven to be a particular distraction.  Many of the comments sent in respect off Addendum III emphasize opposition to no-target closures over support for a reduction in striped bass landings.

And, at least in the second and third “waves” (March through June), both angler effort and catch has been far lower than expected.  In preparing the draft Addendum III, both the Striped Bass Technical Committee and the Plan Development Team assumed that recreational removals—the combination of landings and fish that died after release—would increase by 17% this year, due to the above-average 2018 year class growing into the coastwide 28- to 31-inch slot limit.  Instead, preliminary Marine Recreational Information Program data indicates that angler effort was down about 25% compared to 2024, while recreational catch fell even more, by about 48%.  It’s not hard to predict that some Management Board members are going to use those figures to argue that additional management measures will not be needed to get fishing mortality down enough to rebuild the stock by 2029, as the management plan requires.

Finally, the majority of the public comments received by the ASMFC support maintaining current regulations, and oppose the proposed 12% reduction.  That was somewhat surprising, given that in the case of other, recent management actions, most notably Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass, which was adopted in May 2022, and Addendum II to Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass, which was adopted in January 2024, more than 90% of all comments supported more restrictive management measures.

In total, 2,722 comments urged the Management Board to maintain the current management measures, while 1,775 asked that it impose a 12% reduction in both commercial quota and recreational removals.  Another 28 people felt that the commercial quota should not be reduced, but seemingly had no issues with imposing a reduction on the recreational fishery.

But those overall numbers are somewhat misleading.

When it came to individual comments, 330 people appeared at public hearings to oppose the 12% reduction; except in New Jersey, where angler opposition to the proposed conservation measures was high, most of those arguing for status quo were either commercial fishermen or members of the party and charter boat industry.  Only 81 hearing attendees supported the 12% cut.  However, individual letters were skewed in the other direction, with 1,175 individual letters opposing the 12% reduction, and 1,423 supporting it.

Adding all of the individual comments together, the public’s sentiments were almost perfectly split, with 1,505 individuals supporting the status quo, and 1,504 supporting the conservation measures.

However, members of the various sectors of the fishery responded in very different ways.  The summary prepared by Emilie Franke, the ASMFC’s Fishery Management Plan Coordinator for striped bass, notes that

“When possible, staff tracked individual comments on the reduction by sector/mode as self-identified by the commenter:  private recreational angler, for-hire, commercial.  Some commenters (19%) were part of other stakeholder groups or did not indicate their sector/mode.  Of those other/unidentified comments, 54% were in favor of status quo 46% in favor of a reduction.

“Of the identified private recreational anglers, 39% were in favor of status quo and 61% were in favor of a reduction.

“Of the identified for-hire, 73% were in favor of status quo and 27% were in favor of a reduction.

“Of the identified commercial, 97% were in favor of status quo and 3% were in favor of a reduction.”

However, when it came to form letters, petitions, and similar documents, 1,187 persons appear to be in opposition to any reduction in commercial quota or recreational removals, while just 249 were in support, and it were these form letters and multi-signature documents that skewed public comment so heavily toward the status quo side.

And it was just two such documents, a form letter prepared by the American Sportfishing Association and a somewhat mysterious—it’s hard to know what to call it—petition or set of sign-on sheets only identified by the ASMFC as “South Shore of Long Island Form Letter,” and by its originator(s) as “Striped Bass Status Quo Management Support Sheet (Addendum III), but identifying no preparator or originating organization, together accounting for 1,145 of the 1,187 form letter comments in favor of status quo.

The significant divergence of opinion, particularly within the recreational sector, along with the nature off the form letters, raises an interesting issue, of whether every comment should be given equal weight, or whether some consideration should be given to not only the level of thought and effort underlying the comments, but also to the contribution, in terms of effort expended and the social and economic benefits derived from the striped bass fishery.

As an example of the latter, for-hire vessels—party and charter boats combined—were responsible for about 1.42% of all directed striped bass trips in 2024.  Yet, at most of the public hearings, and certainly the hearing in New York, the for-hire industry accounted for most of the people in the room, even though, in New York, they represent an even smaller proportion of the fishery, making only 0.94% of all directed striped bass trips in 2024.  Despite their very small role in the recreational striped bass fishery (although it should be noted that for-hire landings, at more than 9% of all recreational harvest, are vastly disproportionate to for-hire effort), the various for-hire organizations did a very good job turning out their members at public hearings and inspiring their members to submit written comments; although no for-hire organization seems to have circulated a form letter for its members to use, the similarity of wording of many letters sent by for-hire operators (particularly in Massachusetts) makes it clear that the for-hire opposition to the proposed 12% reduction was well-coordinated.

The opposite is true of private recreational fishermen.  Although they were responsible for over 98% of all directed striped bass trips in 2024, and thus undoubtedly generated the lion’s share of the social and economic benefits accruing from the recreational striped bass fishery, private anglers were underrepresented at both the public hearings and in the written comments.

Thus, members of the Atlantic Striped Bass Management Board should give real thought to the question of whether the comments of for-hire operators should be given the same weight as those of private anglers, or whether some consideration should also be given to the importance of each mode within the recreational sector, and the weight given each comment balanced accordingly.

We face the same question with regard to form letters. 

At the December 16, 2024 Management Board meeting, Michael Waine, who speaks for the American Sportfishing Association with respect to East Coast matters, made depreciating comments with respect to the private anglers who had repeatedly supported needed conservation measures, saying

“…And I look at the public comments, and I know that there’s millions of striped bass anglers out there.  Millions.  And I’m only seeing twenty five hundred comments from a lot of the same people that we know have been commenting.”

He promised,

“And so, as an organization, we’re going to work with our members to try to get more people integrated into this process.  We know that the recreational fishery is very diverse, and I don’t feel the public comments really are a good reflection of that diversity…Don’t talk to the same folks that you’ve been talking to all the time.  Find the people who care about this resource and value it in a way that their voices should be heard, too.  And that’s what we’ll do as an organization ourselves.”

Waine was true to his word, using contacts in the tackle industry and the angling press to find recreational fishermen opposed to striped bass conservation measures, feed them a load of misleading, one-sided information, and direct them to a website that would allow them to send a form letter opposing the 12% reduction in removals to the ASMFC, which received 660 such form letters (with another 269 ASA form letters being tabulated as individual comments, because the senders didn’t settle for the original form, but enhance it with their own comments).

There was no organization with the reach and resources of the American Sportfishing Association that worked to gather comments of anglers who supported striped bass conservation measures.  Backcountry Hunters and Anglers, an organization of conservation-minded sportsmen with most of its membership in inland states, did its best, gathering 239 form letter comments. 

However, the only organization with both the capacity and the resources to mount a coastwide effort—and the one that, at one time, probably would have done so—the Coastal Conservation Association—long ago abandoned its former role as an advocate of striped bass conservation, and instead sided with the members of the tackle and boating industries that buy ads in its magazine and donate product to its fundraising auctions, joining in a letter with the American Sportfishing Association, Boat U.S., the Center for Sportfishing Policy, the National Marine Manufacturers Association, and the Marine Retailers Association of the Americas to oppose the 12% reduction and support the status quo (it’s probably notable that the only state CCA chapter to comment on the issue, CCA New Hampshire, split with the national organization and called for the 12% reduction in removals to be adopted; given the position of the national CCA office on striped bass, the most important recreational species in New England and the mid-Atlantic states, it’s difficult to understand why anyone living between Maine and Virginia would continue to keep paying membership dues).

So, again, a question arises for the Management Board.  How much weight ought it give the American Sportfishing Association form letter, when it knows that such letter was the product of a directed campaign, and that there was no similar campaign to support needed conservation measures.

The other big form letter—really, more like a petition or sign-on letter—raises questions of a very different sort.

The biggest ones are:  Who put the form together and distributed it?  Who are the people who signed it?  And, what are the signatories’ connections to the striped bass fishery.

There is no indication on the form as to who put it together.  As noted above, it is called a “Striped Bass Status Quo Management Support Sheet.”  It contains a list of four assertions which sound a lot like those made by the American Sportfishing Association, such as

“Status quo management is the most equitable option.  It will minimize further economic harm to businesses…”

“Anglers that prefer to harvest fish should not bear the overwhelming conservation burden when catch-and-release practices contribute to a significant portion of total mortality.”

And

“No-Target and No-Harvest options unnecessarily put anglers against each other creating a lose-lose scenario.”

So maybe the petition, sign-on letter, or whatever one wants to call it was an extension of the American Sportfishing Association campaign, promoted by one or more Long Island businesses.  But looking at the way the sheets were signed, and the number of individuals who identified themselves as coming not from the South Shore of Long Island, or anywhere else in New York, but instead from the neighboring states of Connecticut and New Jersey and, in a few cases, from states as far away as Georgia and Florida, my guess is that the signatures were gathered by one or more party boats that solicited their customers at some point during a trip.

And that’s fine, although the Management Board really ought to understand who those signatories are before taking the sign-on sheets at face value.  A lot of the signatures are completely illegible, and there is no indication that the folks who signed have any connection to the striped bass fishery.  After all, the deadline for submitting comments was October 3, and on one of the signature sheets, the first people to sign thought the column that read “STATE” said “DATE” instead, and wrote in dates of 9/19/25 and 9/20/25.  At that time, South Shore party boats were fishing for fluke (summer flounder) and black sea bass, not striped bass, which raises the question of whether the signatories were participants in the striped bass fishery at all, or whether they just signed the sheets because they were asked to, and had no well-considered opinions about the striped bass fishery, and Addendum III, at all.

Again, those are things that the Management Board ought to consider when looking at the public comment on Addendum III.

But just how many Management Board members will consider such things is impossible to predict.

The Management Board members who understand the plight of the stock, who are trying to minimize the chances that the stock will collapse once again, are going to vote their consciences, and vote for conservative management that will give the stock the best chance to rebuild, and even if rebuilding doesn’t occur, to maximize striped bass abundance until such time as more favorable spawning conditions occur.

And the Management Board members who serve as the voice of the commercial and for-hire fisheries, and perhaps or the tackle and boating industries as well, are going to oppose any additional management measures, in an effort to maximize the short-term profits of the commercial and recreational striped bass fisheries, even if the data and the scientific advice recommend a far different course.  Such individuals will sympathize with the charter boat captain who commented,

“I was concerned, as I listened to some members of the [Advisory] panel make their arguments, that they were under the impression that the board’s directive is to save the Striped Bass.  We are dealing with a species that has its own path regardless of human interaction.  Species will increase and decline, and also become extinct if they can’t adapt to changes in the environment.  Unfortunately, human interaction, both direct and indirect, has had an effect on the Striped Bass population.  It is the job of the ASMFC and the Mid Atlantic Council to be management boards.  It is their job to MANAGE the striped bass stock in order to give the greatest access, while balancing the health of the SSB with the socio economic impact of reducing mortality.  We are managing, not saving!”

 

Thus, the outcome of Addendum III is going to depend on the Management Board members who sit somewhere in the middle, those inconsistent advocates who sometimes support conservation measures and sometimes oppose them out of concern for their impacts on the recreational and/or commercial fishing industries.

How they consider the debate over the timing of seasons and the question of no-target versus no-harvest closures, how much they are concerned about the future of the striped bass in the face of continuing low recruitment, how willing they are to believe that lower recreational catch and effort will lessen the need for management action, and how they value the public comment will ultimately decide whether the centerpiece of the draft Addendum III, the 12% reduction in removals, is adopted by the Management Board.

Right now, as I consider past debates and look at the positions that have been previously taken by members of the Management Board, I believe that the question of whether fishing mortality will be reduced, or whether current management measures will remain in place, will be decided by a very narrow vote.

And as I consider the outcome of that vote, I find that I can’t predict whether the Management Board will rise to the occasion, and take action to conserve the striped bass resource, or whether it will take shelter in the current uncertainty, and maintain the status quo.

The striped bass may very well lose, and find themselves on an increasingly perilous road, where stock collapse becomes an ever more likely destination.

And at this point, there is little that anyone can do to change the outcome.  We can only wait until next Wednesday, and see whether wisdom or mindless profligacy prevails.

FEDERAL COURT HEARS ARGUMENTS IN CASE CHALLENGING STRIPED BASS MANAGEMENT

 

On Tuesday, October 21, a federal district court in Washington, D.C. heard arguments in the matter of Cape Cod Charter Boat Association v. Burgum, an action brought to challenge Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass and, more generally, to challenge the Atlantic States Marine Fisheries Commission’s authority to manage the striped bass resource.

The lawsuit is the spiritual successor to an earlier action, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, which was ignominiously tossed out of court by the United States Court of Appeals for the Fourth Circuit, which found that the plaintiffs, Delmarva Fisheries and the Maryland Charter Boat Association, lacked the standing to bring an action against the ASMFC, as the regulations that supposedly harmed their businesses were actually drafted by the State of Maryland, and not the ASMFC.

Last spring, having been thwarted by the Fourth Circuit, the two original plaintiffs returned with a handful of allies—the Cape Cod Charter Boat Association, the Connecticut Charter and Party Boat Association, and the Montauk Boatmen and Captains Association—to try again, this time naming not only the ASMFC, but all of its member jurisdictions, including the National Oceanic and Atmospheric Administration, the Department of Commerce, the Department of the Interior, the United States Fish and Wildlife Service and many others—originally, 55 defendants in all—while making essentially the same arguments that were made in the Delmarva case.

The similarity of the two arguments is probably not surprising, given that the same attorney, James Butera, of the Washington, D.C. law firm of Meeks Butera & Israel, argued both matters.

Nor, given the outcome of the Delmarva case, is it surprising that the defendants again moved to dismiss the matter, with standing a paramount reason to do so.

So, on October 21, the plaintiffs were given an opportunity to convince the judge why the Cape Cod Charter Boat Association case should not be dismissed, as well.

It so happened that there was a telephone number that members of the public could call if they wanted to listen in, I had some free time that morning, and as an attorney, I was interested in hearing the arguments as they were made.  As usual, the proceeding began a few minutes late, but when the judge, Judge Trevor N. McFadden, began, things started to move pretty quickly, and in what seemed to be a promising direction.

After asking all of the attorneys to introduce themselves, he noted that Mr. Butera, plaintiff’s counsel, would make his arguments first, followed by any of defendants’ counsels who wished to speak, with counsel for Maryland (who was also representing all of the more northerly states, that stretched from Maine to Pennsylvania and Delaware) going first because, despite the new defendants, Maryland and Maryland’s striped bass regulations were still the focus of the lawsuit.  Plaintiffs’ attorney would then make his closing remarks.

Before plaintiffs’ counsel could begin his arguments, Judge McFadden noted that

“Defense has raised some serious dismissal issues,”

particularly with regard to plaintiffs’ standing to sue, which Mr. Butera ought to address.

Mr. Butera began by challenging the ASMFC’s authority to manage striped bass pursuant to the Atlantic Striped Bass Conservation Act and the Atlantic Coastal Fisheries Cooperative Management Act on Constitutional grounds, claiming that those laws illegally and unconstitutionally coerced the states

“into requiring or prohibiting acts within their own commerce powers”

and also claiming that the states’ and Congress’ failure to re-ratify the interstate compact creating the ASMFC after the passage of both the Striped Bass act and the Atlantic Coastal Fisheries act was an error of Constitutional proportions that invalidated the ASMFC’s presumed management authority.

At that point, Mr. Butera detoured away from his Constitutional arguments, to make some dubious factual claims, alleging that no scientist claims that there is any issue with the health of the striped bass stock—an argument easily rebutted with a simple reference to the 2024 stock assessment update—and quoting an unnamed former member of the ASMFC’s Atlantic Striped Bass Management Board, who reputedly said that striped bass

“fishing has never been better.”

He also claimed that 50 Maryland charter boat operations went out of business as a result of Addendum II, which allegedly caused business to drop by 75%, and warned that Addendum III toAmendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass would be debated on October 29, implying that a ruling in his favor was needed to prevent Addendum III from further harming to his clients.

Judge McFadden quickly steered Mr. Butera back toward the pertinent legal issues, asking him who should, in his view, manage the striped bass fishery, a question that caused Mr. Butera to revert to his original assertion that striped bass management was

“illegally delegated to the states,”

and that bass management should be governed by the Magnuson-Stevens Fishery Conservation and Management Act which was where he alleged that all management authority resided, but since then,

“That is powers that has been given to the states.”

In making such statements, Mr. Butera evidenced his ignorance of how the state and federal fishery management systems worked, seemingly not realizing that the Atlantic Striped Bass Conservation Act was passed in 1984 precisely because, prior to that, there was no federal law that allowed striped bass management to be coordinated on a coastwide basis because up until then, only the states had authority to manage the fishery.

He also ignored a provision in Magnuson-Stevens which reads,

“Except as provided in subsection (b) [which has no applicability to striped bass], nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

That provision makes it clear that Magnuson-Stevens does not and may not give the federal government the authority to manage striped bass within state waters, which generally extend three miles out from the coast.

Judge McFadden quickly picked up on that fact and, although not quoting from Magnuson-Stevens, noted that there was a difference between state waters and the federal waters of the Exclusive Economic Zone, and observed that the states had the power to manage striped bass before the passage of the Atlantic Striped Bass Conservation Act.  

He asked Mr. Butera whether, with the states managing bass cooperatively through the ASMFC, state management is

“just now done in a more coordinated process between the states?”

But again Mr. Butera doubled down on his position, saying that

‘[the states] have a role but it is illegally delegated.”

He claimed that the ASMFC prepares the striped bass regulations, despite the fact that regulations are, in reality, promulgated and adopted by the individual states, and further argued that the states have no role, or at least no legally acceptable role, in managing striped bass, and that the authority of the ASMFC is advisory only, as the original interstate compact provided.  

Judge McFadden tried to bring the debate closer to reality, saying

“Your colleagues are going to be telling me the states had this authority [to manage striped bass] before”

Magnuson-Stevens became law, but Mr. Butera, again demonstrating his unfamiliarity with the fishery management process, adamantly argued that there was no state authority to manage striped bass before the Atlantic Striped Bass Conservation Act was passed, insisting that

“They never had that authority before”

1984.

At that point, Judge McFadden took the argument in a different direction, noting that the ASMFC, as an interstate compact, was a voluntary association of the states, and that if Maryland (again, the primary focus of the argument was the Maryland fishery and Addendum II’s impact on the Maryland fishing industry; although representatives of for-hire fishing operations in Massachusetts, Connecticut, and New York are also plaintiffs, they were not the primary drivers of the litigation) had a strong disagreement with the ASMFC, it was free to leave the compact and manage fish its own way.

Mr. Butera sort-of acknowledged the truth of that, but then responded by asserting that

“The federal government may not appoint states as their agents,”

thus suggesting that the federal laws granting binding management authority to the ASMFC were unconstitutional.

Judge McFadden then backed up just a bit, to focus on the defendants themselves.  He asked whether Georgia, South Carolina, and Florida were impacted by Addendum II, and Mr. Butera conceded that they were not, as the migratory striped bass population did not enter their waters and they did not have seats on the ASMFC’s Atlantic Striped Bass Management Board.

The judge then asked where the Maryland plaintiffs fished for striped bass, and Mr. Butera responded that they only fished in Maryland state waters.  But when Judge McFadden then pointed out that Magnuson-Stevens was thus irrelevant, because it only applied in the EEZ, Mr. Butera countered that while the judge’s statement might be true, the Constitution’s prohibition on the appointment of states as federal agents was not limited to federal waters, and applied in state waters, too.

Judge McFadden then asked Mr. Butera whether the intent of the lawsuit was to challenge Addendum II, and not the regulations of the various states, Mr. Butera replied,

“Yes, we are, because these regulations were adopted under the mandate of the ASMFC,”

but when the judge asked where, in the plaintiffs’ complaint, that was alleged, Mr. Butera conceded that such allegation had not been made.

And when Judge McFadden referenced the Fouth Circuit finding that the plaintiffs lacked standing in the Delmarva Fisheries Association case, because the regulations were promulgated by Maryland, and not the ASMFC, and asked Mr. Butera to discuss that decision, Mr. Butera responded that Robert Beale, the Executive Director of the ASMFC, testified in a Congressional hearing that Congress gave the ASMFC authority to “require” the states to adopt management measures, a requirement that was unconstitutional because a state

“cannot be compelled by the Congress to regulate its citizens.”

He tenaciously clung to his position that the ASMFC, in exercising the authority granted by Congress, was forcing the states to adopt striped bass regulations, ignoring the fact that the states were regulating that fishery long before the Atlantic Striped Bass Conservation Act became law.

In an effort to further define the issues to be decided, the judge then asked Mr. Butera whether his clients were claiming any injuries that were not the result of Addendum II, which brought a reply that Addendum III would probably be adopted on October 29, leading to his clients being subject to further restrictions.  

When asked whether the primary injury the Maryland plaintiffs suffered was the adoption of a 1-fish bag limit, Mr. Butera stated that the bag limit caused the greatest problems, but that the altered size limit and shorter season impacted them, too.

He then tried to minimize the importance of the Maryland for-hire fishery, arguing that

“The boat captains in Maryland have removed 26,000 fish,”

a figure that he claimed was “negligible” when compared to the six million bass removed coastwide, and to the overall size of the striped bass population, a comment that Judge McFadden let pass without further question.

However, the judge did note that in order for an organization to have status to sue, there must be at least one party who has actually been injured by the challenged action.  He noted that there was only one affidavit on file, from Capt. Hardman, the head of the Maryland Charter Boat Association, alleging injury, and asked whether he was missing anyone else.  Mr. Butera responded that the Delmarva Fisheries Association also included injured parties.

He also responded by arguing that a recent case from the Third Circuit, involving appointments to a regional fishery management council, established the principle that

“The litigant need not show direct harm or injury.  Such injury is presumed”

when an unconstitutional action occurs.  

When Judge McFadden then suggested that, when establishing the requirements for standing, the standards for an appointment and the standards for the sort of challenge Mr. Butera was making were different, Mr. Butera asserted that both were Constitutional challenges, and that the standard for standing was thus the same.

Going back to an argument that Mr. Butera had made before, that the ASMFC was meant to be an advisory body with no management authority, the judge then noted that the regulations that Maryland had adopted after Addendum II had been finalized—the regulations that supposedly caused harm to the Maryland plaintiffs—were more restrictive than what Addendum II required, although still based on that addendum.  Thus, Judge McFadden asked, what if the ASMFC was still just an advisory body, and Maryland adopted regulations based on its advice?  Would Mr. Butera still find a Constitutional infirmity?  Mr. Butera dismissed that hypothetical as “different” from the matter being decided.

Judge McFadden then asked whether the fact that Maryland could walk away from the ASMFC at any time might make a difference, but Mr. Butera called the question “counterfactual,” because in the case at hand, Maryland either didn’t or couldn’t leave the ASMFC.

At that point, the judge turned to another of the plaintiff’s claims, that the ASMFC’s

“usage of such clearly defective methodology [to determine the need for the management measures included in Addendum II] fails to meet the most minimum due process requirements or any possible justifiable basis for destroying Plaintiffs’ businesses and thus represents a Regulatory Taking of their property in violation of the Fifth Amendment of the U.S. Constitution.  [citations omitted]”

To remedy such alleged violation, plaintiffs were seeking

“An interim order and permanent judgment holding unlawful, enjoining, and setting aside in full the ASMFC 2024 Striped Bass Addendum approved on Jan. 24, 2024 and reauthorized on December 14, 2024.”

But Judge McFadden noted that, in the case of “takings” such as the one alleged in plaintiff’s complaint, money damages, not an injunction, were the most appropriate form of relief, and asked why that was not true in this case as well.  Once again, Mr. Butera insisted that Constitutional problems would still exist, and further explained that none of the defendants should be dismissed, because all might be required for an injunction to be issued. 

To that, the judge only responded,

“That’s certainly creative.  You’ve got a whole lot of plaintiffs here, sir,”

casting doubt on both the validity of Mr. Butera’s argument and the need to involve so many parties.  Yet once again, Mr. Butera insisted that

“The most important issue is the Constitutional question,”

and wouldn’t concede the point.

After a bit more back-and-forth, Mr. Butera sat down and Emilie Schwartz, counsel for the State of Maryland (and all of the states between Maine and Delaware), rose to make her points.

Her initial comments focused on standing, and the Fourth Circuit’s decision in Delmarva Fisheries Association.  In response to the judge’s questions, she affirmed that, even if the Court enjoined enforcement of Addendum II, there was “no chance” that Maryland would rescind its striped bass regulations.

She went on to explain that the program that allowed Maryland charter boats to retain two bass per person, in exchange for participating in a catch reporting program, was merely a pilot program that was initiated with the permission of the ASMFC, and that Maryland was not required to amend its regulations, in respect to the bag limit, in response to Addendum II, but merely terminated the pilot program.

She acknowledged that Maryland voted against Addendum II, but once it was adopted, Maryland put regulations in place that “far surpassed” Addendum II’s requirements

“to better protect the striped bass.”

Shortly thereafter, Judge McFadden made a comment which signaled that he understood what was at risk in the litigation:

“Remember ‘the Tragedy of the Commons’ from law school?..The ASMFC is to address ‘the Tragedy of the Commons.”

For those unfamiliar with the term,

“The tragedy of the commons is the concept that, if many people enjoy unfettered access to a finite, valuable resource, such as a pasture, they will tend to overuse it and may end up destroying its value altogether.  Even if some users exercised voluntary restraint, the other users would merely replace them, the predictferable result being a ‘tragedy’ for all.”

Thus, the judge’s reference to the concept may indicate that he is skeptical of the plaintiffs’ position, as did his subsequent suggestion that, if the ASMFC didn’t exist, the states might allocate the striped bass more generously among their own fishermen, to the overall detriment of the resource.

Ms. Schwartz disagreed with him there, noting that the states voluntarily came together to create the ASMFC, and to regulate striped bass and other fisheries, in the first place.

Judge McFadden then asked whether, if the ASMFC went away tomorrow, the states would continue to regulate striped bass, to which Ms. Schwartz replied yes, because

“The states always had the authority over the waters of the states,”

a fact that Mr. Butera still doesn’t seem to grasp.

Still, the judge admitted to being somewhat “perplexed” by the Atlantic Striped Bass Conservation Act, and its grant of regulatory authority.  Ms. Schwartz explained that it only applied to states belonging to the ASMFC, and that states were free to leave the ASMFC at any time; the law was only intended to keep ASMFC members compliant with the ASMFC’s decisions.  Similarly, when asked whether states “must” comply with ASMFC decisions, Ms. Schwartz again pointed out that was the case only if states voluntarily became and remained members of the ASMFC.

At that point, I had to get off the call to participate in another, but I was assured by someone who remained until the proceeding was adjourned that nothing more of significant importance occurred.

So what does it all mean?

If plaintiffs prevailed in the lawsuit, the ASMFC would lose its authority to compel states to comply with its management plans, both for the striped bass and for other species.  If that occurred, management would fall back on the shoulders of the individual states, which demonstrated in the past—most particularly in the early 1980s, when the striped bass stock had collapsed and the states were unable and/or unwilling to mount a coordinated response—that without both the carrot of healthy and rebuilt fish stocks and the stick of noncompliance sanctions being ailable to the ASMFC, effective fishery management measures were unlikely to be adopted.

That’s why the Atlantic Striped Bass Conservation Act was made law in the first place.

Lawsuits can take unexpected turns, and it’s impossible to predict with complete certainty how a judge will rule.  However, given the questions asked of both plaintiffs’ and defendants’ counsel, it seems likely that Judge McFadden is very skeptical of plaintiffs’ arguments, understands the value of the ASMFC’s role in striped bass management, and believes that the plaintiffs’ standing to bring suit is in doubt.

Whether that translates into a dismissal of all or part of the legal action is something that we should learn fairly soon.

 

STRIPED BASS: GRASPING AT STRAWS

 

By now, anyone who follows striped bass management issues knows that there has been another bad spawn in the Chesapeake Bay, with the Maryland juvenile abundance index coming in at 4.0, and the Virginia JAI at 5.12.  Both are well below the long-term JAI averages for the two states, which are 11 and 7.77, respectively.

While neither of those numbers fall into recruitment failure territory, which is defined as three consecutive years of JAIs that fall within the 25^th percentile of all JAIs for the region’s time series (1957-2009 for Maryland, 1980-2009 for Virginia), both are low enough, when combined with the previous two years’ JAIs, to trip the recruitment trigger contained in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which is three consecutive years of JAIs that fall within the 25^th percentile of JAIs for the period 1992-2006.

Once the recruitment trigger in Amendment 7 is tripped,

“an interim [fishing mortality] target and interim [fishing mortality] threshold calculated using the low recruitment assumption will be implemented, and the [fishing mortality]-based management triggers [that require management action to be taken under certain circumstances] will be reevaluated using those interim reference points.  In [a fishing mortality] reference point is tripped upon reevaluation, the striped bass management program must be adjusted to reduce [fishing mortality] to the interim [fishing mortality] target within one year.”

Of course, that's almost irrelevant now, since low recruitment in Maryland, Virginia, and the Delaware River already tripped that management trigger a while ago.

So it’s clear that the two JAIs, and the Maryland JAI in particular, were pretty bad news.

However, there are always people who try to deny reality, either because the have a financial incentive for doing so, or because they just can’t bring themselves to accept that the striped bass stock is quickly sailing into dire straits.  I didn’t realize how delusional such people could be, until I happened to look at the Facebook page of Fisherman’s Headquarters, a New Jersey tackle shop.  The store got the story and the context right, saying

“4.0…better than the last two years but another poor year (7^th consecutive) of striped bass recruitment from the Chesapeake Bay.”

But then I noticed the comment,

“By the percentage, it looks like 25 was 100% better than 24, which was 75% better than 23.  I wouldn’t call that a failure.”

A second comment read,

“100% increase,non top [sic] of 100% increase.

Good news doesn’t sell.”

I’ve since seen similar comments on the Facebook page of a regional magazine and on a website dedicated to striped bass angling.

And then there are the conspiracy theorists, with one commenting,

“Can we really believe these numbers? Are bass still spawning in the same estuaries as ten, twenty and thirty years ago?  Is the entire biomass shifting northward as temps rise, making Chesapeake YOY less predictive?  We see more bass of NJ now than in the past 15 years and more in the past 15 then [sic] the past 50.  Bureaucrats can make numbers say whatever they want to justify their actions.”

I’ve heard those comments elsewhere,

 too, often at striped bass hearings when people, usually connected to the for-hire fishing industry, are trying to impeach the data underlying fisheries management actions, in order to maintain current regulations and current harvest levels.

It’s startling just how many people try to deny the reality that poor recruitment is putting the striped bass stock at risk of serious future decline, and how many others try to concoct stories in an effort to convince themselves that things aren’t really too bad, either because they found some hope in the data or because they are certain that conservation efforts are all part of some nefarious government plot.

To be fair to the first comment that I quoted, the last three Maryland JAIs were steadily increasing, and this year’s JAI of 4.0 was the highest since 2018.  But reaching a high of 4.0 over the course of seven years of poor recruitment isn’t something to be cheered.

If we look at the last time recruitment dropped to low levels for an extended period of time, the years 1975 through 1988—in other words, the years leading up to the last stock collapse, and the years extending through the collapse itself—we can find two different occasions when the JAI rose as high as 8.45, the first in 1978, the second in 1982.  

In the first instance, the 1978 JAI increased from 4.85 to 8.45, before falling back to 4.24 in the next year.  While none of the JAIs in the decade prior to 1978 were as low as all of the JAIs in the last seven years, the stock collapsed a few years later anyway.

In fact, no seven-year period, including periods immediately prior to the last stock collapse or during the collapse itself, resulted in an average JAI as low as the average for the period 2019-2025.  It isn’t even close, with the average JAI for the past seven years a mere 2.81, while the second-lowest seven year average was substantially higher, at 3.41.  And that one occurred during the years 1980-1986, in the heart of the last stock collapse, which puts the current low recruitment levels in an uncomfortable context.

Thus, the fact that the Maryland JAIs increased from 1.02 to 1.98 to 4.0 shouldn’t give anyone comfort, for those numbers are all still dismally low, and the last stock collapse occurred despite being preceded by JAIs that were substantially higher.

The 1982 JAI of 8.45 was bracketed by JAIs of 1.22 and 1.37, so taking heart because the JAI is trending somewhat higher in the near term is probably a mistake; the index can trend downward just as quickly as it can rise.    

That being said, the 1982 year class, with its index of 8.45, was the year class that managers relied on to rebuild the striped bass stock.  But that rebuilding didn’t occur because managers said, “Hooray, this year class is bigger than the last one!” and then clung to the status quo, hoping that the bass population would heal itself, but instead because managers built Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass around the idea of protecting that year class, and every year class that followed, with a steadily increasing size limit, and of limiting fishing-related removals to no more than five percent of the spawning stock biomass until the spawning stock biomass was well on its way to being rebuilt.  

The regulations needed to accomplish that goal were far more restrictive than any adopted, or even proposed, in recent years.

Amendment 3 seemingly worked, as the 1989 JAI was 25.20, a year class that was considered “dominant” then, and would be considered the same today.  Yet the JAIs for 1988 and 1990 were Just 2.65 and 2.14, respectively.

Thus, anyone who believes that they can predict good news from three poor, but increasing JAIs, or who believes they can predict future JAI trends from past patterns, are going to be disappointed.  JAI patterns can no more predict future JAIs, than the patterns in tea leaves or in the entrails of a ram can herald future events, and we would foolish to believe otherwise.

And, speaking of foolish, why do the conspiracy theorists of the fishery world so often believe that managers are manipulating the numbers to show fewer fish in advancement of some secret government agenda?  

More particularly, why do they believe that “the government” wants to place additional restrictions on fisheries, and so cooks the data to further such goal, as the comment quoted above suggests?

There’s just no upside to any government agency doing that.

Anyone who spends any time around fisheries meetings know how much flak the various agencies receive any time that restrictions are mentioned, and anyone who knows any fisheries managers, and has spent any time speaking with them, also knows how much more flak they catch in letters, emails, and phone calls made outside of the public eye.

And anyone who takes the time to think for maybe four seconds will realize that commercial and recreational fisheries generate sales tax revenues, fuel tax revenues, and eventually income tax revenues, that are, to some degree, lost when fishing is further restricted.

So exactly what government interest would justify distorting the data in order to cause fisheries managers additional stress while also reducing the stream of tax revenues from the fishing industry?

Wouldn’t it make more sense for the government to only do what is necessary, based on the most accurate data available, to rebuild fish stocks, so that regulations could be eased, government employees receive fewer complaints, and more tax revenues might be generated?

That certainly makes sense to me, but the conspiracy theorists might know something that I don’t, because they’re always complaining that fisheries managers are using bad data to adopt unnecessary rules, all to, as the quote above suggests, “justify their actions,” although just what those actions might be, and why those allegedly unneeded actions might be, is never made completely clear.

And that’s because folks are grasping at straws.

Instead of accepting the fact that the striped bass stock is facing real problems, and that, regardless of whether the stock rebuilds by 2029, we’re looking at an almost inevitable decline after that, and instead of resigning themselves to the truth that tough remedial measures are going to be needed to turn things around, fishermen try to find solace in bad news, and if they can’t do that, try to convince themselves that talk of incipient problems are all part of some sort of government con.

In a few years, it’s likely that the truth is going to hit them between the eyes, and it’s going to hurt.  Very badly.

And then they’ll ask how it all happened, when everything was going so well.

                                                                                                                          .

 

WILL YOUR GRANDKIDS EVER SEE A STRIPED BASS?

 

A few years ago, I was on one of my sporadic trips down to Washington, D.C., wandering around some House office building and talking to folks about fish.  I had just come out of a meeting with the staff of a member who represented a district in the New York City Borough of Queens, which is geographically, if not politically, a part of Long Island, shares the same geology and same species of saltwater fish.

Most of the staffers were the typical, just-out-of-college-or-law-school twentysomethings who are getting their start in the political arena.  It turned out that one of the staff was a pretty serious recreational fisherman, who spent much of his free time on the waters of Jamaica Bay and western Long Island Sound.

After the meeting ended, that stafffer and I were having a casual conversation about fishing out in the hall when I happened to mention winter flounder.  He gave me a funny sort of look, then, and admitted that he not only had never caught one, but that he had never even seen one alive.

Remember, this was someone who was probably in his late 20s and an active angler, who regularly fished places such as Jamaica, Manhasset, and Little Neck bays, which were once fertile flounder grounds.  So many flounder used to inhabit waters like those, all along New York’s coastline, that in 1984, New York anglers harvested nearly 14.5 million of them, and released many more.

Granted, that was the highest harvest ever recorded, but was not unusual for the time.  Nearly 12.5 million were harvested in 1981, and close to 12 million in 1985.  After that, a decline did set in, but flounder harvest remained above 1,000,000 fish through 1993, and didn’t sink below 500,000 until a decade later.

But by 2022, when that conversation in Washington took place, New York’s winter flounder landings had fallen to something like a mere 120 fish—although, by then, winter flounder landings were so rare that the folks doing the catch surveys almost never came across one, making the recent landing estimates little more than a wild-ass guess.

So, it’s understandable that the Congressional staffer whom I spoke with never came across a flounder, either.

It’s also sad, for throughout the first four decades of my life, winter flounder were one of the most abundant, most pursued, and arguably most important recreational fish in New York’s waters.  But as they began to decline, fishery managers were very slow to react, and very hesitant to adopt the management measures needed to stabilize the stock.  The opposition of the recreational fishing industry, and particularly the for-hire industry, to any sort of meaningful regulation created a political barrier that managers were, in the end, unwilling to scale.

Environmental factors, in the form of warming waters, the resultant hypoxia, and other, related factors certainly also played a role in the flounder’s decline, but it is difficult to argue that fishing, and in particular recreational fishing, didn’t play the dominant role in the flounder’s demise (for those who would rather blame the commercial fishery for the flounder’s ills, I would note that in 1984, the year that saw New York anglers land nearly 14 million pounds of flounder, the commercial landings were under 1.4 million pounds; the same comparison holds true in other years, as commercial landings in 1981 were just 2.1 million pounds, compared to a 12.5 million pound recreational harvest, while in 1985, commercial landings were under 1.3 million pounds, while recreational landings exceeded 12 million).

Today, anglers in New York just don’t see winter flounder anymore, although one will occasionally be caught while fishing for something else.

The striped bass has taken the flounder's place as the most frequently-targeted marine fish in New York, with somewhere between 30 and 35 percent of all fishing trips primarily targeting them.

And now, the striped bass is also in decline.

The stock remains overfished, although as of the 2024 stockassessment update, spawning stock biomass was approaching the threshold, andbiologists were predicting that SSB might finally exceed the threshold thisyear.  However, even if it does, there is a bigger problem on the horizon.

The last seven years have seen very few young bass recruiting into the population.  The Maryland juvenile abundance index has been the most reliable indicator of future striped bass abundance, and its average for those seven years, 2.81, is the lowest seven-year average in a time series that dates back to 1957.  The next-lowest 7-year average was 3.47, for the period 1980-1986, the heart of the last stock collapse, which gives some idea of just how bad recent recruitment has been.

Yesterday, the Maryland juvenile abundance index for 2025 was announced.  It was 4.0, a slight improvement over recent years and the highest since 2018, but nonetheless less than half of the long-term average of 11.  Maryland’s Department of Natural Resources Fishing and Boating Services Director Lynn Fegley tried to put a positive spin on the news, saying that

“Management actions taken over the last decade have resulted in a healthy population of spawning-age striped bass,”

a dubious assertion given that spawning stock biomass is currently hovering somewhere near—below, as of the last stock assessment—the threshold that defines an overfished stock, but also admits that

“continued low numbers of striped bass entering the population is a threat to this progress as there are fewer juveniles growing into spawning adults.”

There is just no way that a JAI of 4.0, following six previous years of record-low recruitment, can be seen as good news.

The Virginia JAI for 2025 was also released, and the news there is little better although, once again, there were efforts to put a positive spin on the numbers.  The value was 5.12, which was better than the last couple of years, but still below the long-term average of 7.77.  The press release called it an “average” year class, apparently because the upper confidence interval—the allowance for possible error in the calculation—of the 2025 JAI slightly overlapped the lower confidence interval for the long-term average.

However, that designation is deceiving, as the long-term average is calculated based on all years from 1967 through 2025, including the many years of poor recruitment that occurred during the stock collapse of the late 1970s and much of the 1980s, while the Atlantic States Marine Fisheries Commission’s Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass provides that

“If any of the four JAIs used in the stock assessment model to estimate recruitment (NY, NJ, MD, VA) shows an index value that is below 75% of all values…in the respective JAI from 1992-2006…for three consecutive years, then an interim [fishing mortality] target and interim [fishing mortality] threshold calculated using the low recruitment assumption will be implemented, and the [fishing mortality]-based management triggers…will be reevaluated using those interim reference points.”

Using that standard, Virginia’s 2025 JAI of 5.12 fell below the 25^th percentile value of 8.22, and thus is considered “low” pursuant to the provisions of Amendment 7,  It was the fifth consecutive year of low Virginia JAIs.

Yet, just as occurred with winter flounder nearly 40 years ago, the recreational fishing industry is ignoring the threats that both fishing mortality and changing environmental conditions pose to the striped bass stock, and is fighting against needed management action.

On September 9, the American Sportfishing Association, the largest fishing tackle trade organization, announced its opposition to any reductions in recreational fishing mortality, and encouraged anglers to send in comments to the ASMFC opposing the proposed 12% reduction included in Draft Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass for Public Comment.

And the summary of comments made at hearings held by the ASMFC to obtain input on Addendum III reveals that members of the for-hire industry, appearing at multiple venues between Maine and Virginia, were nearly unanimous in their opposition to the same 12% reduction.

So, the question is, when the Atlantic Striped Bass Management Board meets on October 29, will it take action to conserve what remains of the striped bass stock, in an effort to preserve the spawning stock biomass so that, when environmental conditions allow, it will be able to produce the strong year classes needed to rebuild the bass population?

Or will it heed the calls to maintain status quo, and put the stock at increased risk of eventual collapse. . 

And, if the Management Board opts for inaction, just how far might the striped bass population decline?

After all, the last seven years of recruitment has already fallen below all previous marks, and set a new record low.  If no management action is taken, might the spawning stock biomass also enter a long and unprecedented freefall, dropping to levels never before recorded? 

When the grandchildren of today’s anglers are in their mid-20s, perhaps 40 years from now, will they still be catching stripers?  Or will the twentysomething anglers of 2065 say “Striped bass?  I never caught one.  I’ve never even seen one alive?”

That might seem improbable now.

But folks would have said the same thing about winter flounder in 1985.

 

 

 

 

NEW MENHADEN ASSESSMENT CORRECTS ERROR, CHANGES STOCK STATUS

 

A benchmark stock assessment, released in 2020, found that

“[The fishing mortality rate] in 2017 [the terminal year of the stock assessment] (0.11) was below the F_threshold (0.60) and F_target (0.22).  In addition, the stock is above the current fecundity target.  The Atlantic menhaden stock is not overfished and overfishing is not occurring.  [emphasis in original]”

A stock assessment update, released in 2022, found that stock status had not changed, stating that

“The fishing mortality for the terminal year of 2021 was below the [Ecological Reference Point] target ant threshold and the fecundity was above the [Environmental Reference Point] target and threshold.  Therefore, overfishing is not occurring and the stock in not considered overfished.”

Unfortunately, in coming to those conclusions, the authors of both stock assessments used an estimate of natural mortality (the fish that die from causes that are not fishing-related) that was too high, which resulted in an overestimate of population size and an overly optimistic evaluation of the population’s status.

A new update to the single-species stock assessment was recently completed (so recently that I received a copy in pdf form, as it has not yet been posted to the Atlantic States Marine Fisheries Commission’s website).  It addresses the overestimate of natural mortality, and the steps used to correct it, reporting that

“The only new change for this update assessment is the inclusion of a new vector of natural mortality based on a revised analysis of the historical tagging data that was completed by the M Working Group.  The 2020 benchmark used the estimate of [natural mortality] from Liljestrand et al.’s (2019) analysis of the tagging data to scale the Lorenzen (1996) curve of [natural mortality]-at-age, assuming that the [natural mortality] estimated from the tagging data represented the [natural mortality]  for age 1.5 menhaden, based on the size of the tagged fish.  During the 2025 benchmark assessment process, Ault et al. (2023) submitted a working paper to the Atlantic menhaden [stock assessment subcommittee] and the Ecological Reference Points Work Group (ERP WG) that re-analyzed the historical tagging data and produced an estimate of M=0.56, significantly lower that the M=1.17 reported by Liljestrand et al. (2019).

“However, Ault had used a different subset of the data and a different approach to handling key parameters, which made direct comparisons with Liljestrand et al. (2019) difficult.  The [stock assessment subcommittee] formed a working group to review the datasets and methods in consultation with the primary authors to determine the best estimate of [natural mortality] for use in the Atlantic menhaden stock assessment.  The [M Working Group] and [stock assessment subcommittee] determined that the main cause of the difference in [natural mortality] estimates was the handling of the magnet efficiency parameter [related to the detection of magnetic tags], which was equivalent to the tag reporting rate in conventional tagging models.  The [M Working Group] and [stock assessment subcommittee] found that Liljestrand et al. (2019) had overestimated the magnet efficiency rate in their analysis, but did not agree with the stepwise estimation approach proposed by Ault et al. (2023) to estimate this parameter.  In the end, the [M Working Group] and [stock assessment subcommittee] recommended a revised estimate of M=0.92 from the tagging study, based on the corrected magnet efficiency rate and updated effort and landings datasets, which was lower than the value used in the 2020 benchmark, but higher than the value estimated by Ault et al.’s (2023) method…”

To put that in simpler terms, the 2020 benchmark assessment assumed that about 69% of the adult menhaden are removed from the population by natural causes each year, while the 2025 assessment update assumes a natural mortality rate of about 60% (while rejecting the conclusion of another team of scientists that only 43% of the population succumbs to natural mortality each year).

The difference between 60% and 69% might not seem very large, but it is large enough to cause the estimate of the Atlantic menhaden population to drop substantially.  A memorandum prepared by the Atlantic Menhaden Technical Committee and Ecological Reference Point Workgroup, addressed to the Atlantic Menhaden Management Board and dated October 9, 2025 (which was attached to the copy of the 2025 stock assessment update that I received), notes that

“the lower [natural mortality rate] used in 2025 resulted in a lower biomass compared to the 2022 update.  The time-series average of age-1+ biomass for the 2025 update with the lower [natural mortality rate] was 37% lower than the time-series average in the 2022 update.  In addition, the 2022 update showed a large increase at the end of the time-series that not present at the end of the 2025 update.”

That 37% reduction, plus the absence of a large biomass increase near the end of the time series, was enough to change the status of the stock from one with a fishing mortality rate below the target level and a fecundity level above the target to one with a fishing mortality rate and a fecundity level that sits between target and threshold.  

That’s a big change, but not catastrophic, for while managers should always attempt to maintain both fishing mortality and biomass/fecundity at or near target levels, the fact is that for most species, most of the time, fishing mortality will often stray above target while biomass often remains below.  Things only get truly serious if a stock becomes overfished or overfishing occurs.

So far, that is not the case for Atlantic menhaden, and the 2025 assessment update noted that

“Short-term projections at the current Total Allowable Catch (TAC) of 233,550 [metric tons] were provided.  Under a constant TAC of 233,550 mt, [fishing mortality] will be between [the fishing mortality target] and [the fishing mortality threshold], with a 4% probability that [fishing mortality] will be above the [Ecological Reference Points’ fishing mortality threshold] and a 100% probability that it will be above the [fishing mortality target] in 2028.”

While that might not seem too dire, there are some important facts that it leaves unsaid.  One is that, as noted in the October 9 memo,

“the 2021 biomass that was projected forward to inform the 2023-2025 TAC options was approximately 60% higher than the 2023 biomass, which is informing the 2026-2028 TAC.”

So the Management Board is going to have far fewer fish to work with when setting the overall TAC, as well as individual state quotas, this time around.

As a result of the corrected, smaller population size, the 2025 assessment update found that 2023 fecundity was just 71% percent of the target level and, more significantly, just 105% of the fecundity threshold.  So while the Atlantic menhaden stock might not have been overfished in 2023, fecundity needs only fall a few more percentage points, to anywhere below 100% of the threshold, for menhaden to become overfished.

That should be setting off alarms at the Atlantic Menhaden Management Board, and making it clear that maintaining status quo—in the form of a 233,440 mt Total Allowable Catch—is neither a prudent nor a viable option. 

For while the current TAC might not lead to overfishing, it could very well lead to an overfished stock, which is not an acceptable outcome.

Thus, if the Management Board is to be a responsible steward of the menhaden resource, it must make a substantial reduction in the menhaden TAC for the years 2026-2028.

How large should that reduction be?

If we want to get fishing mortality back down to its target level, the TAC must be cut by more than 50%.  The October 9 memo presents a number of options, built around the likelihood of exceeding the TAC in the upcoming years.  The most liberal of the options presented, a 110,000 mt TAC for the entire 2026-2028 period, that would carry a 60% probability of exceeding the fishing mortality target, represents about a 52.5% reduction in TAC compared to the TAC currently in place (although the reduction compared to 2024 landings would be less, as such landings were about 20% below the existing TAC).

A more prudent TAC, that would have just a 50% probability of exceeding the target—and so represent a sort of mirror image to the usual process of setting harvest at a level with a 50% probability of not exceeding the mortality level needed to achieve management success—would cut landings back to 108,450 mt, nearly a 54.5% reduction from the current level.

As a practical matter, the difference between a 54.5% reduction and a 52.5% reduction is trivial, and hardly worth arguing about.  But we can be sure that the findings of the 2025 stock assessment update, and the recommendations in the October 5 memo, are going to set off an intense debate between the menhaden industry and the folks who want to shut most of that industry down.

It is extremely likely--it is a virtual certainty--that the menhaden industry will howl and complain that it can’t absorb a 50%-plus cut in harvest, and that the Management Board should adopt a new TAC that is very close to the one now in place.  It might—or might not—be willing to accept a 20% TAC reduction, given that the menhaden fishery only landed about 80% of its quota last year, and a TAC of around 187,000 metric tons would be larger than the TAC for 2013-2014, and about equal to the 187,880 mt TAC that was in place for 2015-2016.

But that level of landings would almost certainly mean that the fishing mortality target would be exceeded, and when managers go to the trouble of setting a target—essentially saying that, ideally, “fishing mortality ought to go no higher than this,”—they do have an obligation to the public to at least try to achieve that goal.  Each person might have a different definition of “try,” but it’s probably fair to say that if you adopt management measures that, more likely than not, will lead to a fishing mortality target from being exceeded, you’re not really trying at all.

The menhaden fishing industry will be on shaky ground if they argue for keeping the menhaden TAC at or near its current level, or at or near current landings.  Throughout the debate over the proper level of, and methods used for, menhaden harvest, the industry has regularly called for following the science, rather than giving in to emotional arguments.  Now that we have the science telling us that menhaden fecundity was hovering just above the threshold that denotes an overfished stock in 2023—it could conceivably have slipped below that threshold since, although we lack the data to know if it has—and telling us that we need to cut the TAC by more than 50% to achieve the target fishing mortality level, the industry has the choice of staying true to its previous messaging, and going along with what the science appears to demand—even if that means taking a serious economic hit—or suddenly saying that the science isn’t the only consideration, and looking like hypocrites.

We can’t know for certain which course they’ll choose, although “follow the money” is usually dependable advice.

On the other side of the table, we’ll undoubtedly see the folks who worship at the menhaden's altar, and have regularly made irrational and scientifically unsustainable calls for the elimination of the menhaden reduction fishery, increase the volume of their yowling, and use the 2025 assessment update as an excuse to redouble their efforts, never seeming to realize that a menhaden that dies in a pound net is just as dead, and has the same impact on the stock as one that dies in a purse seine.

By focusing on eliminating a gear type instead of on reducing the TAC, such persons will make it easier for the industry to prevail, as they open the door to equally emotional arguments that the reduction industry is unjustly targeted, that ending the reduction fishery would kill an economically important business in a generally depressed area of the coast, and that closing that fishery would deny employment for people—including many people of color—in a region that offers few viable alternatives.

And it will be easy for the industry to argue that, even with the population size revised downward, the menhaden stock is not in anywhere near as bad condition as the industry's opponents maintain.

The October 9 memo shows that menhaden landings—and, in particular, menhaden reduction landings, have been relatively stable since 2000.  During that time, overall landings ranged between a low of 169.4 metric tons in 2013 to a high of 270.05 metric tons in 2001, with landings in 2023, the last year in the time series, coming in closer to the low end, at 181.75 metric tons.  

Similarly, reduction landings ranged from a low of 124.60 in 2020 (and 131.02 in 2013, the lowest non-COVID year) to a high of 233.56 in 2001, with landings in the last three years of the time series, 2021, 2022, and 2023, coming in near time-series lows, at 136.69, 136.70, and 131.80 metric tons, respectively, even though the ,menhaden TAC has been increasing in recent years.

At the same time, the 2025 assessment update revealed that current spawning stock biomass is higher than it has been for most of this century, that the current fishing mortality rate is near the middle of its range for the past 30 years, and that current recruitment is better than it has been in most years since 1990.  However, it also indicates that both age-1+ biomass and fecundity are either at, or not far from 30-year lows.

So, after discounting the demands from both stakeholder extremes, what should the Management Board do when it meets on October 28?

The need to cut the TAC—sharply—is clear.  Ideally, the 2026-2028 TAC should be reduced to no more than 108,450 metric tons, although its unlikely the Management Board will have the appetite to get that done over the course of a single year.  In the real world, some sort of phase-in is likely, but so long as there is a fixed schedule to get the TAC down to that level over the course of a few years—ideally by 2028—no one will have too much reason to complain.

Of course, the industry almost certainly will complain anyway.  They’ll argue that a cut of more than 50%, even if phased in over the course of three years, is too sudden and extreme for them to bear.  But the fact is that the TAC should never have reached 233,550 metric tons.  It got that high only because the biologists made a mistake, and adopted a natural mortality rate that was too high, and so skewed previous stock assessments.

No one was really to blame for that error—not the scientists doing the stock assessment, who relied on what they thought was accurate data; not the Management Board, who relied on the assessment when setting the TAC; and not the fishermen who relied on the Management Board to set the TAC at the proper level..  But blame isn’t the issue.

The simple fact is that the menhaden industry was killing more menhaden than they should have been, and now that we know that to be true, the Management Board needs to get landings down to a more sustainable level.

One might borrow a concept from civil law, and argue that the menhaden fishery was “unjustly enriched” by the error in the stock assessment and received a benefit, in the form of far more fish, than they were entitled to.  If that had happened in a financial context—if, for example, someone’s bank made an error and credited their account with $100,000. instead of $1,000.00 because someone put a decimal point in the wrong place—the party who was unjustly enriched would have to return all of the assets that they weren’t entitled to.

But no one is suggesting that the menhaden industry make pound-for-pound paybacks of the extra fish that they harvested as a result of the earlier stock assessments’ error.  

No one is suggesting that they make any sort of restitution at all.

But now that we know that the earlier natural mortality estimate was wrong, it’s neither unreasonable nor unfair that the Management Board reduce the TAC to what it should have been all along.