Thursday, August 11, 2022

POLITICS STILL ROIL THE RED SNAPPER'S WATERS

 

Twenty or so years ago, one of the “lunatic fringe” organizations that sprout out of the sportfishing community every now and then came up with a bumper sticker that simply said,

“Fish are political animals.”

It may be the only thing that organization ever got right.

We like to think of fishery management as driven by science, a process in which capable biologists provide critical data to managers, who use that information to craft regulations designed to assure the long-term health of the stock.  And sometimes, that really happens.

More often, fishery management is driven by the same sort of politics that govern everything from climate debates to foreign policy.  Somebody with political influence wants something done, and works to make it happen.

Often, somebody else with political influence holds a different opinion, at which point the two sides clash in the press, in social media, and in the halls of government, as each side starts spending cash on lobbyists, public relations, and campaign contributions, a situation which provides great benefits for those who make their livings feeding out of those particular troughs, but usually does neither the fish nor the public interest very much good.

The political fisheries management game is so well-established that when I sat on the executive board of a national anglers’ rights group some years ago (it was actually a legitimate conservation organization back then, but times and motivations, unfortunately, change), the organization’s federal lobbyist actually handed out a sort of shopping list to all of us, listing which federal legislators ought to receive contributions and, based on each legislator’s position and influence, how much cash each should receive.

In New York, we were fortunate, because the only item on our list was a first-term congressman on the House Natural Resources Committee, who was priced at a very reasonable $500.  Long-serving senators who held committee chairs were priced in the thousands. 

Of course, inflation has made everything a lot more expensive since then.

As the shopping list was handed out, we were assured that there was nothing improper about making such contributions, and that nothing carried even the faintest wisp of corruption.  We weren’t making the political contributions as any sort of bribe, to assure a particular political outcome.  Instead, such contributions were merely a way to gain better “access” to the legislators who sat on key committees and made key decisions with respect to fisheries law.

But even if you take that statement at face value, it still means that if we wanted to play, we first had to pay.

That’s why you’ll see a lot of the anglers’ rights folks saying that fishery management decisions should be made at the lowest possible political level.  It’s kind of like owning a AAA ball team, as opposed to a major league club; while AAA baseball players might be skilled professionals, they still come a lot cheaper than even the humblest major leaguer, and when you start talking about the stars…

So long as you have the right connections, it's always easier and less expensive to amass the political influence needed to get something done at the state level than it is to accomplish a similar task on Capitol Hill.

When dealing with fisheries issues, there are even more reasons to stick to the states if you can.  The first is the Magnuson-Stevens Fishery Conservation and Management Act, which sets minimum standards for fishery management measures, prohibits overfishing, and requires timely rebuilding of overfished stocks.  Magnuson-Stevens is an important fishery management tool, but with a few exceptions, it’s provisions only apply in federal waters.

So if you want to be able to overfish, or avoid rebuilding a troubled stock, having that stock managed by the states makes life a lot easier.

The other reason is that, pursuant to Magnuson-Stevens, most important fishery management decisions are made by regional fishery management councils.  The law gives the National Marine Fisheries Service very limited authority with respect to such decisions; about all it can do is approve a regional fishery management council’s management action, disapprove such management action, or approve such action in part while disapproving other provisions.

The members of each regional fishery management council, other than those held by each state’s fishery management agency, are appointed by such member states’ governors.  So once again, being politically well-connected at the state level better assures that your representitives get named to the councils.  Just as important, it helps to assure that other folks, who might be more concerned with maintaining healthy fish stocks or protecting the public interest, instead of protecting your particular sector or industry, are not nominated to the councils, where they might manage to frustrate your industry's efforts. 

Maintaining close political ties at the state level also makes it easier to convince governors to direct their agency heads, whether they sit on regional fishery management councils or similar multi-state bodies, to vote in support of the folks who support the political status quo.

That doesn’t mean that there aren’t good legislators who try to do the right thing, protect the public interest and support sustainable fisheries.  In my years as a fisheries advocate, I’ve met a number of state and federal officeholders who have had a real interest in protecting marine resources.  But the simple truth is that everyone, even the good guys, face a political contest every few years, and running the sort of media-intensive campaign that it takes to win is not inexpensive.

Thus, “paying for access” will never go away.

About ten years ago, Jeff Angers, president of the group that now calls itself the Center for Sportfishing Policy, wrote a piece for Sport Fishing magazine titled “The Politics of Fish,” which explained,

“Fish are the most political of all animals.  Commercial fishermen want to make a living harvesting them.  Recreational fishermen want to enjoy time on the water pursuing them.  And even if they’ve never been fishing themselves, environmentalists want to guarantee that there will be fish for everyone…

“Congressmen hear from commercial fishermen that regulations are strangling their business, from anglers that management uncertainty is strangling their recreational opportunity, and from some environmentalists that there are no fish left so all fishermen should get off the water.

“Then the members of Congress call fishery managers and administrative officials to Capitol Hill to explain why.  Why are fisheries allocated between the commercial and recreational sectors as they are?  Why are seasons so short?  So unequal?  So unpredictable?  Why do some regions spend so much money on fisheries science but others so little?”

The introduction to Angers’ piece is a pretty good summary of federal fishery politics, but it’s somewhat disingenuous, too.  While he mentions anglers, environmentalists, and commercial fishermen as groups which affect fisheries policy, he leaves out two of the most politically influential groups of all, the recreational fishing tackle industry and the marine manufacturing industry.

That was a pretty remarkable error, given that five of the Center for Sportfishing Policy’s six officers—the only exception is Angers himself—are current or past members of those two industries, as are 22 of the organization’s 30 directors.

The Center for Sportfishing Policy’s stated purpose is

“to affect public policy related to the conservation of marine resources with broad abilities to pursue political solutions.  The organization is non-partisan and focuses on having an impact in the national political arena, principally Congress and federal regulatory agencies,”

so it's pretty clear that both the fishing tackle and boating industries want to be a big part of the managment process.

The Center for Sportfishing Policy also oversees the Center for Sportfishing Policy Political Action Committee, which under current law may donate up to $5,000 per candidate per election. 

According to Open Secrets, a website disclosing information on federal political contributions, over the past five election cycles, the Center’s PAC spent $87,000 in 2011-2012 (23.56% on Democratic candidates, 76.44% on Republicans), $106,600 in 2013-2014 (26.74% D, 73.26% R), $65,500 in 2015-2016 (14.50% D, 85.5% R), $64,500 in 2017-2018 (17.83% D, 82.17% R), and $57,250 in 2019-2020 (33.62% D, 66.38% R).  

That’s a lot of purchased “access” for the industries to have.

In the current, 2021-2022 cycle, the PAC has spent $38,500 through June 30, 2022, almost equally divided between Democrats (49.35%) and Republicans (50.65%), perhaps suggesting that they want to figure out who is going to win the closer races so they'll know where to best focus their donations.  But one way or another, given the composition of the Center’s Board and roster of officers, should the interests of the public and industry diverge, we can have a pretty good idea of whose interests are going to be represented when that access takes place.

Which, finally, brings us to red snapper in the Gulf of Mexico.

By and large, recent federal management of Gulf of Mexico red snapper has been a success story.  As a result of overfishing, exacerbated by the destruction of too many juvenile snapper incidentally caught in the shrimp fishery's trawls, the stock entered a long, steep decline in the 1950s and ‘60s, finally bottoming out around 1990.  It remained at low but slightly increasing abundance for the next two decades, until actions taken by the National Marine Fisheries Service spurred a more rapid expansion of the stock.

Although the stock never reached its biomass target—a level of abundance it last attained around 1962—increasing numbers of red snapper led to increasing angling effort, as recreational fishermen overfished their allocation every year, leading to ever more restrictive management measures.  That opened the door for angling industry/anglers’ rights organizations to exert their political influence on the states, most of which had historically adopted the same red snapper regulations that were set by NMFS, convincing them to go out of compliance with the federal regulations, and set longer red snapper seasons in state waters.

The longer state seasons made many recreational fishermen happy, but didn’t do much for the red snapper themselves, as anglers chronically overfished their allocations.  Since fishery managers currently only recognize a single red snapper stock in the United States’ portion of the Gulf, both state and federal landings were used to calculate the following year’s federal red snapper season, which became shorter and shorter due to the recreational overages.

Then, the same organizations that supported the states’ noncompliance, and so were directly responsible for the recreational overages, exploded into a concerted campaign to blame federal fishery managers for short recreational seasons. The Center for Sportfishing Policy (which, in its earlier years, was known as the Center for Coastal Conservation) and its affiliated organizations prevailed on politicians to introduce bills in Congress that would take management authority for Gulf red snapper away from NMFS and grant it to the five Gulf states. 

State fishery managers would not be constrained by the provisions of Magnuson-Stevens, so could allow the red snapper stock to be overfished with impunity, making anglers temporarily happy and conferring greater short-term economic benefits on the angling and boatbuilding industries.

Fortunately, none of those red snapper bills ever made it to the President’s desk, but the Gulf of Mexico Fishery Management Council eventually adopted Amendment 50 to its Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which gave the states limited management authority over the private boat recreational red snapper fishery.  While NMFS would still set the annual catch limit, each state would be given its own sub-allocation of fish and, within carefully specified limits, the authority to set the season and other regulations intended to keep anglers within each state’s allocation.  States, working with experts at NMFS, developed their own systems to track recreational landings in something approaching real time.

The Center for Sportfishing Policy and its affiliated organizations rejoiced, with Angers gushing that

“We have reason to celebrate today thanks to the willingness of the state fish and wildlife agencies of the Gulf Coast and the leadership of Secretary Ross and Congressional champions like Senator Richard Shelby (R-Ala) and Representatives Garret Graves (R-La), Steve Scalise (R-La), and Austin Scott (R-Ga).  Over the past two years, private recreational red snapper anglers in the Gulf have become more active partners in the states’ data collection systems and enjoyed much longer red snapper seasons than the federal system was able to produce.”

The only problem was, the state data collection systems that Angers heralded were undercounting the number of red snapper that anglers in some states were catching, and thus allowed overfishing to occur.  Or, to be more precise, some of the state data collection systems were collecting data differently than other states were, and differently from the system used by NMFS as well.  It wasn’t so much a matter of which system counted fish better than the others, but instead a matter of which systems counted fish in a way that was compatible with the data used to set the annual catch limit.

Just as it can be necessary to convert ounces to milliliters, or yards to meters, in order to use the measurements in a particular calculation (you’d probably have a very rough time calculating how  many cubic inches of water weighted exactly one kilogram, unless such conversions were done), the state calculations need to be calibrated with one another in order to properly evaluate and design recreational red snapper measures.

That’s hardly fresh news.  Fishery managers have been aware of the problem well before the adoption of Amendment 50.  But it became a particular problem after managers realized that, because such calibration hadn’t yet taken place, anglers in a few Gulf states, most notably Alabama and Mississippi, might have to pay back significant red snapper overages.

So the political spin began.

The folks from the Center weren’t willing to admit that maybe their rush to state-level management, before the calibration was done, might have helped cause the problem, so in their usual way, they attacked federal fishery managers instead, announcing that

“Federal Regulators Seek to Undermine State Management of Red Snapper,”

and complaining that

“NOAA Fisheries intends to force the states to calibrate their data back to the flawed federal system that caused significant turmoil in the first place.”

And, of course, they also got the politicians involved.

The entire Alabama delegation to Congress signed off on a letter to Gina Raimondo, the Secretary of Commerce.  According to AL.com, the letter told NMFS

“to use ‘common sense solutions’ and not a one-size-fits all approach to fishing quotas called ‘calibration.’”

Apparently, Alabama’s federal legislators disagree with the scientific community, and believe that calibration's not needed.  Perhaps, unlike the rest of us, they can compute how many grams 42 cubic inches of water might weigh, without first converting each unit of measurement into a common system--although I have my doubts.

Still, there are only two possibilities.  Either they hold some secret key to manage across diffent measurement systems, or they just don’t care what the right answer is, so long as their anglers can kill more red snapper next year.

Representative Garret Graves, a Republican congressman from Louisiana, also believes that red snapper should be managed by the states, saying that

“The states have done a great job sustainably managing this important resource.  States have the best available science and can make the best decisions for the species right off our coast—not someone in Washington, D.C.”

Leaving aside the fact that federal red snapper management decisions are already being made by the local folks sitting on the Gulf of Mexico Fishery Management Council, and are reviewed, for the most part, by the NMFS employees at the agency’s Southeast Regional Office in St. Petersburg, Florida, a Gulf Coast town, and not by anyone in Washington, one still how to ask how Rep. Graves' faith in state management remains unshaken given his home state’s continuing failure to address its badly overfished speckled trout population; despite clear signs that more conservative management is needed, Louisiana has stubbornly refused to increase its size limit from a meager 12 inches, or reduce its general speckled trout bag limit from an exceedingly generous 25 fish, far more speckled trout than is permitted by any other state on the Gulf.

The science has been ingnored for so many years that one might almost suspect that state politics were blocking needed management action…

The bottom line is that something that should pose a purely technical question—how to best calibrate and combine the data from five different state systems and from that of the federal government—has somehow become a political question.  Instead of allowing scientists to do their job, legislators are interrupting the process, seeking to impose their—or their constituents’—preferred outcome on fishery managers.

That’s no way to manage a rebuilding fishery, but it's been the way Gulf red snapper management has been politicized for years.

But then, over the past five election cycles, the Center for Sportfishing Policy has made over $77,000 in contributions to federal legislators from the Gulf Coast.

You can do the math...

 

 

 

Sunday, August 7, 2022

OMEGA, MENHADEN, AND THE CHESAPEAKE BAY

 

Last week, the Atlantic States Marine Fisheries Commission held its Summer Meeting, and again addressed the issue of Atlantic menhaden.

I didn’t listen in to that part of the meeting, which was largely concerned with new approaches to allocating the menhaden resource.  In this blog, and in my general approach to fisheries issues, I tend to focus on conservation, not allocation.  The reason for that is quite simple:  The health of marine ecosystems—warming waters and similar environmental concerns aside—depends largely on limiting the number of fish and other animals killed by fishing activities.  Who gets to do most of the killing isn’t particular relevant to the outcome.

That notion sometimes rubs folks the wrong way.  

I get a bit of flak from the “gamefish” proponents, particularly with respect to striped bass, who constantly argue that the road to conserving such fish begins with eliminating the commercial fishery, even though, over the last five years (and well before that, as well) somewhere between 85% and 90% of all striped bass fishingmortality was caused by the recreational sector.

I also have occasional run-ins with those who see Omega Protein, a Virginia-based, industrial-scale menhaden harvester now owned by Cooke, Inc., a Canadian conglomerate focused on the aquaculture industry, as a sort of sea-devil incarnate, that threatens not only the menhaden stock, but every creature in the sea that includes menhaden in its regular diet.  

Yet, when assessed on a coastwide basis, the Atlantic menhaden stock is in fairly good shape, neither overfished nor experiencing overfishing, and whether the bulk of menhaden landings are generated by the few big purse seiners that supply fish to Omega, or by scores, perhaps hundreds, of trap fishermen, haul seiners, gill netters, and folks tossing cast nets makes not one iota of difference to the health of the stock, so long as the overall kill is kept at sustainable levels. 

Thus, I can’t get very excited about meetings that revolve around taking fish away from—or giving more fish to—Virginia, or allocating such fish between Omega’s so-called “reduction fleet” and everyone else. 

Keep enough menhaden in the water, regardless of who catches the rest, and both predators and prey will come out OK.

At the same time, my feelings about allocation shouldn’t be confused with my feelings toward Omega Protein, which are quite a bit less benign.  While I have no animus toward the company on the management level, at least so long as Virginia stays within its annual quota, on a personal level, I find the company to exhibit the sort of corporate arrogance that I too often observed, and came to despise, in the years that I worked on Wall Street.  Omega’s interests and the public interest often collide, as we’ve seen more than once this season in the Chesapeake Bay.

When such collisions arise, Omega has little problem trying to gaslight the public, a truth recently demonstrated in a press release issued by the Menhaden Fisheries Coalition, an organization which Omega dominates (a map provided on the Coalition’s website, titled “Our Coalition Members,” pinpoints the locations of eight coalition facilities; four of those facilities belong to Omega, while a fifth belongs to Ocean Harvesters, the trade name for Alpha VesselCo LLC, a Mississippi corporation created solely to own and operate the fishing vessels formerly owned by Omega, since Omega’s acquisition by Cooke, a Canadian company, rendered Omega unable to own U.S. registered vessels itself) stated, in response to last week’s meeting, that

“The latest Atlantic menhaden stock assessment accepted today by the Atlantic States Marine Fisheries Commission (ASMFC) confirms once again that Atlantic menhaden is healthy and not overfished, and that overfishing is not occurring.  Significantly, this assessment was completed using new ecological reference points, standards that account for the needs of predator species when determining menhaden’s sustainable status…

“Two years ago, the consideration and adoption of these ecological reference points were publicly praised by numerous conservation and sportfishing groups…”

So far, so good.  That part of the release was completely true.  But then the gaslighting begins.

“Despite this scientific finding, recreational special interests are continuing a campaign to end the menhaden fishery in the Chesapeake Bay.

“Keep America Fishing, a project of the American Sportfishing Association, accuses the fishery of ‘[depleting] a critical striped bass food source,’ calls menhaden fishing ‘unsustainable,’ and together with the Theodore Roosevelt Conservation Partnership, calls on supporters to sign a petition urging Virginia Governor Glenn Youngkin to ‘move Omega Protein boats out of the Bay until science demonstrates that industrial menhaden fishing can be done without negatively affecting the broader bay ecosystem.’

“These statements are not consistent with the latest scientific findings on either menhaden or Atlantic striped bass reviewed and accepted by the ASMFC.  According to the ASMFC, ‘the last striped bass stock assessment found the stock was overfished and that overfishing was occurring.’

“There is no evidence that a lack of menhaden is affecting striped bass populations, but there is evidence that recreational over-harvesting of striped bass is harming the species.  If recreational anglers are concerned about the striped bass stock, they should stop overfishing rather than try to blame the results of their own actions on another fishery…”

By conflating three very different issues—the coastwide health of the Atlantic menhaden stock, the impacts of industrial level menhaden harvest within the confines of the Chesapeake Bay, and the current status of the striped bass population, the press release weaves a deceiving web designed to protect Omega’s interests while distorting the public’s understanding of what is really going on.

To begin, the fact that the coastwide menhaden population is deemed to be healthy does not mean that an industrial menhaden fishery can be maintained in the Chesapeake Bay.  Even if some level of purse seining can be biologically justified, it is possible that the current cap on Bay harvest, 51,000 metric tons (a cap that Omega arrogantly chose to exceed, in clear defiance of the management plan, in 2019), is impermissibly high.

Right now, we just don’t know whether the Bay’s reduction fishery is sustainable.  Scientists have come before the Management Board, to describe the different sorts of analyses that they might perform and the data that they would require to perform them, in order to address that issue.  The biologists’ needs are extensive and complex, and no definitive research has been completed which suggests that removing large quantities of menhaden from the Bay is OK; there has also been no definitive study suggesting that such removals are harmful.

Thus, the Menhaden Fisheries Coalition is misrepresenting the truth when it claims that efforts to end Omega’s menhaden reduction fishery in the Chesapeake Bay “are not consistent with the latest scientific findings on…menhaden…reviewed and accepted by the ASMFC,” because it’s impossible to be inconsistent with scientific findings that have not yet been made.

Again, the Coalition release seeks to deceive.

Worse, it is hypocritically accusing the conservation and sportfishing groups of striking a position contrary to the science, at the same time that its own position—that removing 51,000 metric tons of menhaden from the Chesapeake does no harm to the Bay ecosystem—is equally void of any definitive scientific support. 

At least the conservation and sportfishing groups’ request to Gov. Youngkin, that he “move Omega Protein boats out of the Bay until science demonstrates that industrial menhaden fishing can be done without negatively affecting the broader bay ecosystem, [emphasis added]” admits to the possibility that the science may support the reduction fleet, while the Coalition completely discounts the chance that the conservation groups might be right.

Despite the Coalition's protestations, the chance that the reduction fishery might be harming the Bay can’t be dismissed out of hand.  The various conservation and angling groups, in asking that the Bay fisheryt be closed, are simply calling for a precautionary management approach; given the importance of menhaden as a forage fish, not only for other fishes, but for birds and marine mammals as well, it might well make sense to shut down the Bay reduction fishery unless and until it can be proven benign.

Given the economic benefits provided by a healthy Chesapeake Bay, it also wouldn’t be unreasonable to place the burden of proof on Omega, and require it to cease fishing in the Chesapeake Bay unless and until it can provide peer-reviewed research demonstrating that its reduction fleet does no harm.

But instead of affirmatively demonstrating that the reduction fishery is benign, the Coalition instead tries to deflect attention from Omega’s fishing activities, by bringing up anglers’ impacts on the overfished striped bass stock.  That is a classic example of misdirection, akin to a magician drawing your attention to his right hand, while he performs an illusion with his left.  For any harm that fishermen—both recreational and commercial—may have done to striped bass would not justify any harm that Omega might have done to the Chesapeake Bay.

Of course, there are all sorts of harm, and not all of it arises out of Omega’s potential impact on the food web.

A couple of weeks ago, I wrote about an incident in the Chesapeake Bay, when a boat from Ocean Harvesters killed a bunch of red drum as bycatch, and caused large numbers of menhaden and drum to wash ashore on a Virginia beach.  In that essay, I took Omega’s estimate of “less than 1%” of its catch constituting bycatch, and demonstrated that even that seemingly small level of dead discards can result in more fish being killed and wasted than are intentionally caught in some of Virginia’s most important directed commercial fisheries.

And, of course, we have to take that 1% number on faith, as fishery observers aren’t required on the purse seine boats, so there is no objective documentation of what such boats actually kill.

There’s also the problem of the just plain stink from fish lost from torn or partially opened nets, that wash up on the shore and render it an unpleasant place for people to be.  According to website WAVY.com, Omega admitted to a net tear that occurred on July 5 of this year, which resulted in

“Rotting fish [washing] up on their otherwise pristine shore, not once, but twice in the past week, [making] residents and vacationers on the Eastern Shore…understandably upset.

“The out-of-the-way Silver Beach community of long-time families and vacation cottages sits in a target-rich environment for Omega Protein and its fishing operation Ocean Harvesters that run menhaden boats out of Reedville.

“Statements from Omega and the Virginia Marine Resources Commission confirmed that a menhaden boat had a torn net that resulted in ‘several thousand fish’ eventually washing ashore…

“[The property owners are] dealing with the odor, the ugliness and the danger of the rotting fish.  They say it started over the holiday weekend.

“’Many neighbors spent their holiday weekend—rather than sitting on the beach that was too stinky to sit on the beach, or swimming—with shovels and buckets loading them with dead fish,’ said resident Debbie Campbell.”

Omega, probably to no one’s surprise, denied being responsible for any fish that washed up prior to July 5, although it seemingly offered no alternative explanation of where industrial quantities of floating, rotting dead menhaden might have come from.  Although it did contribute substantial resources to the cleanup, as far as I can determine, it made no effort to compensate Silver Beach residents for any loss of enjoyment suffered when the stinking mass of menhaden washed ashore.

Three weeks later, when the red drum bycatch occurred, the resulting fish kill caused Virginia to close a state beach for a few days, while a cleanup took place, denying the public access to that beach during the height of a midsummer heat wave.

Again, while Omega performed much of the cleanup, it did nothing to compensate the state, beachgoers, or adjacent businesses for any losses that they may have incurred as a result of the cleanup-related closure.

Last September, in two closely-spaced incidents, Omega/Ocean Harvesters spilled about 400,000 menhaden off Hampton Roads, where rafts of rotting fish again put local beaches, and local beachgoers, at risk.

I could sympathize with any person, and any lawmaker, who believed that the disruption caused by such incidents alone, regardless of their biological implications, and who wanted to push Omega out of the Bay and away from the coast, just to abate such continuing nuisance.

And "nuisance" may be the key word, when used in a legal sense.

I’m not a Virginia lawyer, but I do know that Virginia’s civil law allows citizens to recover for “private nuisance.”  Courts have found

“When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gasses, the operation of such business is a nuisance. The tern ‘nuisance includes everything that endangers life or health,’ or obstructs the reasonable and comfortable use of the property.  [emphasis added, internal references omitted]”

A fishing business that operates in water so shallow that its nets sometimes snag on the bottom, tear, and release thousands of menhaden to wash up and befoul people’s bayfront properties might well fall under such definition.

Virginia law also recognizes the concept of “public nuisance,” which applies when not just a handful of landowners, but the public as a whole, is endangered or otherwise negatively impacted by someone’s actions.  Once again, it’s worth asking whether fishing in shallow waters, knowing that you might end up spilling thousands of fish, actually causing such spill and, as a result, temporarily denying the public access to public facilities might be considered a public nuisance.

In the end, we honestly don’t know whether there are biological reasons for pushing Omega/Ocean Harvesters out of the Chesapeake Bay; until we do, it wouldn’t be unreasonable, from a resource conservation standpoint, to invoke the precautionary principle and prevent large-scale purse seining until it is proven benign.

But even if the biological case isn’t made, one can argue that, just as zoning laws generally prevent someone from starting a pig farm in the middle of a suburban housing development, Virginia could reasonably prohibit activities likely to produce fish kills and bycatch in inland waterways where people live and engage in water-related recreation.  There is plenty of room for such fishing activities out in the open sea.

And if the state doesn’t take the action needed to rein in fish kills within the Bay, there is always the chance that private citizens might consult a lawyer, go to court, and perhaps find their own way to discourage industrial fisheries from operating in places where they don’t belong.

 

Thursday, August 4, 2022

STRIPED BASS REBUILDING BEGINS TO TAKE SHAPE

 

Even before the 2018 benchmark stock assessment found that striped bass were both overfished and experiencing overfishing, anglers have been concerned with the declining health of the stock and have demanded that the Atlantic States Marine Fisheries Commission institute a rebuilding plan.

Despite clear language in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which stated that

“If the Management Board determines that the biomass has fallen below the threshold in any given year, the Board must adjust the striped bass management program to rebuild the biomass to the target level within [no more than 10 years],”

the ASMFC’s Atlantic Striped Bass Management Board failed to initiate a rebuilding plan in immediate response to the stock assessment’s findings, but instead chose to adopt Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, which was intended to reduce fishing mortality to the target level (and seems to have been successful in achieving that goal), and initiate a new Amendment 7 to the fishery management plan, which effort took a comprehensive look at most aspects of striped bass management, and resulted in the first major revision to the management plan in nearly 20 years.

In the beginning, it appeared that at least some Management Board members intended to address the striped bass stock’s overfished status in Amendment 7, not by increasing the spawning stock biomass, but by changing the reference points used to gauge the stock’s health, and so permanently reduce striped bass abundance.  Fortunately, thousands of anglers came out to public hearings and let the Management Board know that such an approach was not acceptable.

To its credit, the Management Board heeded stakeholders’ comments and, last May, adopted an Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass that left the reference points, and other important conservation provisions, effectively intact, and added additional measures that should make the new amendment a more effective conservation and management tool.

The new amendment explicitly states that

“The 2018 Benchmark Stock Assessment indicated the striped bass stock is overfished and experiencing overfishing relative to the updated reference points defined in the assessment.  To address the overfished status, the Board must adjust the striped bass management program to rebuild the [spawning stock biomass] to the target level in a timeframe not to exceed 10 years, no later than 2029…”

Since the Management Board failed to initiate a rebuilding plan when it first learned that the stock was overfished, it now has just seven years, instead of the original ten, to get the job done.  In order to best utilize the remaining time, Amendment 7 includes a provision stating that

“If the 2022 stock assessment results indicate the Amendment 7 measures have less than a 50% probability of rebuilding the stock by 2029 (as calculated using the low recruitment assumption) and if the stock assessment indicates that at least a 5% reduction in removals is needed to achieve F rebuild, the Board may adjust measures to achieve F rebuild via Board action (change management measures by voting to pass a motion at a Board meeting).”

What that means is that, instead of putting together a draft addendum, sending that amendment out for public comments, holding hearings up and down the coast, and then, finally, putting together a final addendum that would likely not go into effect until 2024, the Management Board will be able to fast-track the process, and adopt management measures later this year, which will become effective for the 2023 season.

Given how far the stock has to go in order to achieve rebuilding, the extra time gained by taking such action could be the difference between rebuilding the stock by 2029 or missing the rebuilding deadline.

At the Management Board meeting held on August 2, we had an opportunity to hear the Board discuss what measures might be considered in a rebuilding plan, and when such plan might be finalized.

The threshold question, which was asked by Dennis Abbott, the Legislative Proxy for New Hampshire, was whether the stated requirements for an accelerated rebuilding plan—less than a 50% chance that current measures won’t rebuild the stock by the deadline, and a needed reduction of 5% or more—will be triggered by the stock assessment update that will likely be released this October.

Katie Drew, who heads the ASMFC’s Atlantic Striped Bass Technical Committee, said that it was too early to know, as the initial data runs won’t be discussed until August 10, and there might be a need to further analyze and refine the data after that date.  However, Dr. Drew advised that the Board ought to

“Plan for the worst and hope for the best,”

with respect to the assessment update’s findings.

The discussion that followed provided the distinct impression that most people sitting around the table, regardless of what they were hoping for, did not expect good news.

Some of that undoubtedly stemmed from the simple fact that rebuilding any fish stock from overfished to a relatively high biomass target is always a challenging thing to do.  Part of it also stemmed from the fact that striped bass recruitment in the Maryland section of Chesapeake Bay, which is the single most important spawning area for the species, has been fairly dismal over the last few years, giving the managers fewer fish to work with. 

Over the past three years, the Maryland juvenile abundance index has fallen low enough to compel managers to incorporate a low-recruitment assumption when designing the rebuilding plan, an assumption which will make any needed rebuilding measures even more restrictive than they otherwise would have been.

So what will those rebuilding measures look like?  We can’t know for sure until the assessment update comes out, and provides more information about the state of the stock, but there are things that we already know for certain.

The first is that managers are intent on maintaining some sort of slot limit, and have rejected the idea of a fixed minimum size.  Any coastal slot limit contained in the rebuilding plan will certainly not span the current 28 to 35 inches—if managers could get away with that, we could just maintain the current rules, without the need for a rebuilding plan—but beyond that, everything is up in the air. 

We might be looking at a narrower slot and/or a slot that targets a different size range of fish; in that regard, a slot limit that targets smaller fish than those that may legally be retained isn’t completely out of the question, although it is probably not very likely.  We might even see someone propose a slot limit that changes every year, to protect certain cohorts of fish that are currently in the population as they age. 

We also have to accept something that a number of the state managers noted in their comments:  That a slot limit alone may not be enough to assure rebuilding, particularly if managers want to avoid creating a slot that is impractically narrow.  

If the reduction needed to rebuild by 2029 is large enough, it is likely that any slot limit adopted will be paired with some sort of closed season.  Again, no one yet knows whether any closures are going to be needed or, if needed, how long they might be, but there seemed to be a general consensus that if seasons were imposed, such seasons would only prohibit anglers from keeping fish; catch and release would almost certainly still be allowed.

As a practical matter, no-targeting rules are just too difficult to effectively enforce.

Having said that, allowing catch and release angling becomes a significant issue if a fishing mortality reduction much greater than 40% or so is required.  The 2018 assessment found that, in 2017, 48% of all striped bass fishing mortality came from fish released by anglers, while only 42% was generated by recreational landings.  In the years since—2018-2021—recreational release mortality constituted between 47% and 54% of all striped bass fishing mortality.  Thus, even the oft-touted complete moratorium on all harvest might not adequately constrain fishing mortality if the necessary cutback is in the 50% range.

Hopefully, things won’t be nearly that bad.  And if strict restrictions are placed on recreational landings, a number of harvest-oriented anglers might drop out of the fishery, reducing the release mortality of short or over-slot bass that are returned to the water in the process of finding a “keeper.”  But even if that happens, recreational release mortality is likely to stay fairly high.

That has implications for not only the recreational, but the commercial fisheries.  As noted by Michael Luisi, the Maryland fishery manager, there can come a point where the commercial quota is reduced so much that the fishery is no longer viable.  If that point might be reached in the upcoming rebuilding plan, will managers be willing to risk putting commercial fishermen out of business?

Maybe, maybe not.  Certainly, Mr. Luisi suggested that instead of proportionally reducing both commercial and recreational fishing mortality, the Board might consider placing a greater burden on the recreational sector.  For example, if a 40% fishing mortality is required to meet the rebuilding deadline, we would normally expect to see the commercial quota and recreational fishing mortality each reduced by 40%.  But under the scenario proposed by Mr. Luisi—a version of which has already been adopted in Maryland—the commercial quota might be reduced by a lesser amount, perhaps something as low as 5% or 10%, with what remains of the expected commercial reduction shouldered by the recreational sector.

While the comparative size of the sectors would make the additional recreational burden relatively small, it still raises a significant equity issue.  If the commercial fishery is responsible for 12% of the striped bass fishing mortality over the past five years, it is hard to argue that it should not shoulder a full 12% of the burden of striped bass recovery, as well.

Distributing the benefits and burdens of striped bass recovery is an issue that anglers shouldn’t ignore.

Distributing the burdens among states is also an issue.

Amendment 7 requires that, so long as the stock remains overfished, states must adhere any management measures adopted by the Management Board; different, state-specific regulations adopted pursuant to the doctrine of “conservation equivalency” would not be allowed.  At the same time, any conservation-equivalent measures already existing in a state may remain in full force until a relevant and contradictory management measure is adopted by the Management Board.

Thus, should the rebuilding plan do nothing more than change the slot limit, New Jersey would have to abandon its current, 28- to 38-inch slot but, because the plan didn’t impose any new seasons, New York would be able to maintain its current closure.

That shouldn’t cause many problems on the coast, but comments from Mr. Luisi of Maryland suggested that he had a different vision for the Chesapeake Bay, where Virginia and Maryland, not to mention the Potomac River Fisheries Commission, have very different size limits and seasons in their recreational fisheries.

He suggested that, in the Chesapeake, state-specific regulations should remain.

Emilie Franke, the ASMFC’s Fishery Management Plan Coordinator for striped bass, was quick to point out that what Mr. Luisi was suggesting sounded very much like the sort of conservation-equivalent proposals that were prohibited by Amendment 7.  A number of Management Board members concurred.  However, Mr. Luisi suggested that if the Management Board approved particular state-specific measures in the original rebuilding plan, such measures wouldn’t really be conservation-equivalent.

While such argument is probably technically correct, it certainly violates the spirit, if not the letter, of Amendment 7.  Yet at least one other Management Board member seemed sympathetic to Mr. Luisi’s proposals, so this, too, is an issue that needs to be watched.

Regardless of what it might contain, when are we likely to see a rebuilding plan implemented?

Right now, it looks like the stock assessment update will be completed sometime during October, and will be presented to the Management Board in time for its November meeting.  However, many Management Board members were very uncomfortable with the idea of voting on management measures without any input from their states’ fishermen.

Thus, even though the ASMFC will not hold public hearings on the rebuilding plan, we can expect many, if not all, states on the striper coast to conduct some sort of state outreach, in order to get stakeholder feedback on the rebuilding options provided by the Technical Committee.  Such hearings are likely to be held in late October, November and maybe even early December, and it will be important for anglers to get out and provide their opinions one more time, and do their best to assure that the proposed management measures will not only rebuild the striped bass stock (likely, as they will be drafted by the biologists of the Technical Committee), but also that such measures avoid disproportionately burdening the private anglers who are responsible for the lion’s share of fishing mortality, and also for over 95% of all recreational striped bass trips, and so form the heart of the fishery.

The Management Board will then meet, probably by webinar, sometime in mid-December to adopt a rebuilding plan.

While we still don’t know what that rebuilding plan will look like, at least it seems certain that it will be put in place by the end of this year, in time (at least in most states) for the start of the 2023 season.

There’s a very good chance that the rebuilding measures will be severe.  But severe measures, which lead to a fully rebuilt stock, will be good for us all in the end.

 

 

 

 

 

Sunday, July 31, 2022

WHEN SHARKS [DON'T REALLY] ATTACK

 

For some reason, the summer of 2022 has seen an unusual number of people being bitten by sharks off the beaches of Long Island, New York.

According to the International Shark Attack Files, a comprehensive aggregation of all known shark attacks dating back to the early 1500s, only 12 people were bitten in New York’s waters prior to 2022. So far in 2022, with July not even over, six people have already had one of their extremities gently gnawed by the toothy sea creatures.

 

The sharks involved are, quite literally, ankle-biters, immature fish less than five feet in length that usually fasten themselves to someone’s foot (although a few hands and an unfortunate buttock also received nips) and then quickly let go after sensing that it wasn’t really the baitfish that they had initially perceived it to be. Most, if not all, appear to be sand tigers, a species that is reasonably abundant in inshore waters, but generally stays close to the bottom and out of the public consciousness until such a mistake occurs.

The International Shark Attack Files notes that

Many bites in this area involved juvenile sand tiger sharks (Carcharias taurus). Despite their fearsome appearance, their thin protruding teeth are excellent for snagging the small fish they feed on. There is a nursery for sand tigers located off Fire Island New York [a barrier beach located off Long Island’s central south shore]. Many shark bites around the world are from younger individuals in low visibility water. This is likely the cause for some of the bites in this area. Using genetic techniques, the ISAF team previously identified this species from a tooth in the boy’s leg after he was bitten on Fire Island.

 

Such comments make perfect sense. I fish in the Fire Island area, often targeting sharks in conjunction with a research team from Stony Brook University; through much of July, a phytoplankton bloom left local waters cloudy and green, severely limiting visibility. Combine such impaired visibility with the presence of forage fish, a healthy population of juvenile sand tigers, and people fluttering their hands and feet in the water in unintentional imitation of a wounded baitfish, and the odds of an adolescent shark making an inadvertent error become fairly high.

Calling such accidental bites an “attack” stretches the definition of that word very close to the breaking point.

Unfortunately, as the observed by Larry Vaughn, the fictional mayor in the movie Jaws, “…it’s all psychological. You yell barracuda, everyone says ‘Huh? What?’ You yell shark we’ve got a panic on our hands on the Fourth of July.” While most people’s reaction to the Long Island shark bites hasn’t been anything close to a panic, with some staying out of the water and the rest treating the season as summer-as-usual, a few have lost all sense of perspective, and perhaps any sense at all.

 

One extreme example of shark-induced hysteria appeared in a letter to Newsday, a broadly distributed publication, which read, “As someone who spent years growing up and swimming at the beaches on Fire Island, it is disheartening to see the problems with the sharks…Why not have the Coast Guard and/or the police fly helicopters, or even use drones, over the waters looking for the sharks to do this: If sharks are spotted, then an explosive device can be dropped between the shore and the shark. The intent is not to kill the sharks, but to scare them away. [emphasis added]”

 

Fortunately, the problems associated with depth-charging sharks from the air, not the least of which being that, since the fish are swimming just off popular beaches, one would be depth-charging swimmers and surfers as well, are readily apparent to most sapient beings, so that idea didn’t gain any traction. The mere fact that it was proposed is more than a little dismaying.

Some newspaper coverage has been dismaying as well. After a local teenager straddling his surfboard and waving his feet in the murky water was bitten just 45 feet from shore, the New York Post, a publication never known for restrained reporting, declared that the surfer received a “vicious mauling” and then “kicked free from the six-foot man-eater and rushed to shore frantically.”

 

It was the sort of sensational account that warps the public’s view of sharks and their interactions with swimmers.

While the young surfer did suffer a 4-inch cut on the bottom of his foot, that’s hardly a “vicious mauling.” The shark apparently released the teen’s foot and went away quietly as soon as it sensed its mistake.

 

That’s not the behavior of a “man-eater,” a hyperbolic and generally inaccurate term that, if used at all, should be limited to the white, tiger, and bull sharks that were responsible for just about all of the fatal North American shark attacks. If the surfer had been attacked by a shark with predatory intent, he wouldn’t have gotten away with just a cut foot, but almost certainly would have lost the entire appendage, if not a piece of his leg. However sand tigers, along with sandbar and dusky sharks, New York’s other common inshore species, lack both the tools and the inclination to do that sort of damage.

 

Thus, the public’s fears of sharks and Long Island’s “shark infested” waters are unjustifiably reinforced.

 

It doesn’t help that public officials are sometimes garbling their message. Suffolk County Executive Steve Bellone, who presides over the jurisdiction where five of the six bites occurred, unintentionally attributed at least one of them to a tiger shark, a species known to have fatally and seemingly intentionally attacked human beings, rather than to a sand tiger, a smaller animal that only bites people by accident. Executive Bellone did correctly note that, given the species sighted so far, county officials do not expect anyone to experience a serious shark-related injury.

 

Government’s good-faith efforts to prevent further shark bites probably add to public misperceptions, while doing little to reduce the likelihood of additional incidents. While flying drones over beaches, patrolling with boats and jet skis, and similar surveillance might spot the occasional group of spinner sharks attacking a menhaden school, and so prevent people from finding themselves among the feeding fish, such activities are unlikely to detect a bottom-hugging sand tiger hunting fish just outside the roiled surf, even though it is those sand tigers which are responsible for most of the bites.

 

The good news, which often gets lost among the breathless hyperbole, is that the return of sharks to Long Island beaches is evidence of a healing ecosystem. As explained by Christopher Paparo, manager of Stony Brook University’s Marine Science Center, “What happened in the ’50s, ’60s, and ’70s, [sharks] were heavily fished, and many of their populations neared complete collapse. Then through regulations and conservation of not only sharks, but their food—the Atlantic menhaden, which is better-known as bunker—these populations have rebounded, and we’re starting to now see them once again in the numbers that they used to be.”

As Mr. Paparo further explained,

 

Shark populations around the world in general are on the decline. Yet New York is one of the busiest metropolitan areas in the world, and we have a booming shark population. That’s a good thing—people don’t want to hear that. But last year, there were just 73 unprovoked attacks worldwide. There are 4,000 drownings just in the U.S. every year, but people still go swimming. It’s scary, and nobody wants to be the 74th person on that list—I get that. But with the fear, you get people who are talking about how we need to cull sharks.

Such culling would be foolish, even more foolish than depth-charging sharks from the air. Yet, in the same July 2022 that saw sharks bite Long Island swimmers, a group of fishermen and charter boat captains organized a Florida shark tournament intended to thin the bull shark population. They didn’t even do it because the sharks were biting people, but merely because they were eating a few fish that the fishermen wanted for themselves.

 

Some tournament supporters’ hostility toward sharks was so great that, according to the website of a Florida television station, local10.com, they were posting things on the group website such as “Kill as many as possible every day please,” and “Big or Small, kill ’em all.”

We’re not yet seeing such antipathy here on Long Island, and hopefully we never will.

Still, so long as sharks are cast as threats and objects of fear, instead of a key component of the marine ecosystem, they will probably always face some level of hostility.

When inspired to fear or hostility toward any native animal, or when faced with proposals to cull sharks from our nearby sea, we would do well to recall the words of pioneer ecologist Aldo Leopold, who wrote “The last word in ignorance is the man who says of an animal or plant, ‘What good is it?’ If the land [or sea] mechanism as a whole is good, then every part is good, whether we understand it or not. If the biota, in the course of aeons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog and wheel is the first precaution of intelligent tinkering.”

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

 

Thursday, July 28, 2022

COMBATING BYCATCH IN LARGE-SCALE FISHERIES: COULD CIVIL RESTITUTION PLAY A ROLE?

 

A day or two ago, I received a press release prepared by Omega Protein, the sole remaining industrial-scale menhaden harvester on the Atlantic seaboard.  The release began

“Yesterday, Monday, July 25, while fishing for menhaden, an Ocean Harvesters vessel fishing on behalf of Omega Protein had a rare and unexpected encounter with a school of red drum.

“Menhaden fishing is performed using spotter aircraft whose pilots are experienced in identifying schools of various species from the air.  When a spotter pilot sees a school of menhaden, they direct the fishing vessels on the water to that location where they will surround the school with a net called a ‘purse seine…’  When a menhaden spotter pilot sees a school of fish that they identify as red drum or another game fish species, they will advise their boats to avoid that location, and as a courtesy, will often radio recreational captains in the area with the location of the sport fish.

“On Monday, the Ocean Harvesters crew made a set approximately 1 mile offshore of Kiptopeke State Park.  While bringing the menhaden aboard the vessel, the captain attentively noted a group of red drum in the net.  He immediately instructed the crew to open the net and release the fish.  The crew observed that many fish swam away, but the captain acknowledged that many fish likely died in the incident.

“It is a rare event for menhaden nets to interact with red drum, or any other species…The most likely explanation is the unusual situation in which a school of red drum swam beneath a school of menhaden, making them unobservable to the spotter pilot…

“…Bycatch in the menhaden fishery is rare.  Current research indicates that catch of non-targeted species comprises less than 1 percent of the volume…”

The release is a wonderful example of a corporate public relations department doing its best to sugar-coat an unpleasant truth, in this case, the harm that its operations do to publicly owned natural resources.

While I don’t know all of the facts surrounding the incident, since it occurred just off a state park on a hot midsummer’s day, it probably didn’t go unnoticed, but instead was witnessed by quite a few people.  Omega undoubtedly wanted to get ahead of the story, and put its spin on the facts in front of the public before the conservation and recreational fishing communities had a chance to cast its actions in a more negative light, and maybe convince that same public that Omega was engaged in activities that were not in the interests of most Virginians. 

Getting ahead of the story was probably particularly important to Omega, given that some Virginia politicians have been arguing that allowing Omega to purse seine menhaden within the confines of the Chesapeake Bay is bad public policy, and talking about legislation to halt the practice.

Such legislation would likely have significant public support, given that a letter, signed by 21 separate organizations, was sent to Virginia governor Glenn Youngkin more than a month before the red drum kill, asking him to close the purse seine fishery within the Chesapeake Bay.

In the face of such threats, it’s not surprising that Omega is trying to downplay the dead drum and burnish its tarnished image, although to anyone who spends much time on the water, much of the release doesn’t ring true—particularly the effort to make purse seine bycatch seem like the exception rather than the rule.

The plain truth is that purse seines are non-selective gear, which will catch and kill anything unfortunate enough to be trapped by their curtains of mesh.  The movement demanding “dolphin-safe tuna” erupted after the public learned of how many marine mammals were killed by purse seiners operating in the Pacific Ocean over two decades ago.

While the purse seine fishery for Atlantic menhaden is far less destructive than the fishery that targeted Pacific tuna back in the ‘90s, it still does its share of harm.  Omega trumpets the fact that no more than 1% of the fish that it kills constitute bycatch, failing to mention that it harvests such a huge amount of menhaden that even 1% of such figure is still a lot of dead fish.

In 2019, Virginia reported landings of 332,511,812 pounds of menhaden.  Not all of those landings can be attributed to Omega’s operations, but the 2016 landings for the reduction fleet, which supplies menhaden only to Omega’s facility in Reedsville, Virginia, were 137,400 metric tons (302,915,148 pounds), not much below the 2019 Virginia purse seine landings.  So even if we round Omega's landings down to 300,000,000 pounds, to avoid exaggeration, that 1% of landings would still amount to 3,000,000 pounds of bycatch. 

To put that in perspective, if we look at five species of fish that frequently feed on and associate with menhaden schools-- striped bass, bluefish, cobia, red drum, and weakfish--we find that Virginia’s total commercial landings for such fishes are 1,389,039 pounds, 192,431 pounds, 38,711 pounds, 2,616 pounds, and 39,724 pounds, respectively, an aggregate harvest of 1,662,521 pounds of marketable fish—not much more than half of Omega’s theoretical bycatch.  (Virginia’s estimated recreational landings in 2019 are higher--224,077 pounds of striped bass, 581,458 pounds of bluefish, 1,573,485 pounds of cobia, 470,940 pounds of red drum, and 30,573 pounds of weakfish, for aggregate landings of 2,880,533 pounds—but still smaller than the 1% bycatch figure cited in Omega’s press release).

Yet the directed commercial fisheries for such species are closely regulated/  Anglers fish under relatively strict regulations as well.

Omega’s bycatch isn’t regulated or restricted in any way.

Now, I’m not asserting that Omega’s bycatch is limited to, or even primarily made up of, the five species mentioned.  Since the reduction fleet's boats aren't required to carry observers, there is no way to be certain just what the actual bycatch looks like.  However, Omega’s comment that “It is a rare event for menhaden nets to interact with red drum, or any other species,” is very, very difficult to believe.

Menhaden are magnets for predatory fish.

While I’ve never fished on a menhaden school in the Chesapeake Bay, here off Long Island, any given menhaden school might be hosting striped bass, bluefish, cobia, sharks (with threshers, sandbars, duskies, spinners, and juvenile whites the most common), or even giant bluefin tuna—not to mention humpback whales, bottlenose dolphin, and other protected species.  Anglers look for the menhaden schools because they know that such schools will concentrate any predators in the area.

It's hard to believe that Virginia menhaden schools don’t draw predators in the same way; however, it’s easy to believe that the red drum recently killed by one of the purse seiners were just doing what red drum do, following beneath a bait school and feeding from time to time, rather than doing anything unusual.  In such a situation, bycatch is inevitable.

Yet, except for public relations considerations, the reduction fleet has no reason to avoid bycatch, as it suffers no penalties if and when it occurs.

Perhaps that ought to change.

Such bycatch could never be criminalized, because criminal sanctions normally, although not always, require some level of intent.  There aren’t many strict liability crimes on the books.

Civil liability, on the other hand, presents a possibility that is already being exploited in other fields of wildlife management, where people who illegally take fish and game are required to pay, in addition to criminal penalties, civil cash restitution intended to compensate the public for the destruction of public resources. 

The Boone and Crockett Club, which focuses on big game conservation, conducted a study on the use of restitution to deter and compensate for the illegal harvest of game animals, in which it noted that

“Eighty-one percent (N=42) of all states have restitution for illegally taken big-game species.”

The federal government has required commercial fishermen who intentionally violated fisheries law to pay substantial restitution as well.

Extending such restitution requirements not only to poachers, but to those who unintentionally--but perhaps negligently or recklessly--kill marine fish like the drum described in the Omega release could inspire commercial fishermen to make a greater effort to avoid killing non-target species.

Of course, it’s easy to picture the objections of the commercial fleet.  They’re not doing anything illegal when they kill non-target species; doing so is completely accidental.

While that may be true, the situation isn’t much different from that of the hunter who, having a tag that only allows him to harvest an antlerless deer, fails to take a good enough look at the “doe” that he sees in the dim pre-dawn light, shoots as the animal walks out of sight, and ends up killing a spike buck by accident.  In a restitution state, a civil penalty would still be applied, despite no intent to break the law.

The trawler that makes a tow through an aggregation of squid, even though large fish, which turn out to be striped bass, clearly show up on its sonar, is arguably more culpable for its bycatch than the huner would be for killing the little buck.  At least the hunter thought that he was shooting at a legitimate target.

The trawler, on the other hand, knows that the off-limits bass are there.  It knows that, as it  catches its load of squid, it will  also end up catching, killing, and dumping many, many incidentally caught striped bass.  Witnesses have reported seeing slicks of dead bass, floating on the surface, that extend for “miles” behind the fishing vessel.  Such events have been reported from here on Long Island, as well as from Martha’s Vineyard.  

In North Carolina, trawlers have intentionally towed their nets through striped bass aggregations, culling out a trip limit of the most saleable fish and leaving the rest as a buffet for the gulls.

As things stand today, accidentally killing and subsequently dumping even a large number of off-limits fish is completely legal.  Other than trying to avoid the extra work involved in dumping the dead bycatch overboard, fishermen have no incentive to avoid discard mortality.

But what if the commercial fleet had to reimburse the public for the fish that are inadvertently—and often negligently—wasted?  

What if restitution had to be paid for every striped bass, every red drum, every summer flounder or croaker or weakfish or immature scup that ended up killed?

If the reimbursement price was set properly, as it is in many states that require reimbursement for big game violations, trawlers, purse seiners, and other large-volume boats would have to pay a real and hopefully prohibitive price for their dead discards.

The Boone and Crockett explains how that might work in its description of the Ohio reimbursement program.

“In Ohio, for example, the seven scoring criteria included in the wildlife value formula includes:  recreation, aesthetics, educational, state-list designation, economics, recruitment, and population dynamics.  The current, minimum value calculated by state wildlife biologists for an antlered white-tailed deer is $500.  If the buck qualifies for trophy status, the…gross score [for its measured antlers] is plugged into an equation…to determine the trophy restitution value.  Therefore, if a violator is convicted of poaching a white-tailed deer with a gross score of 180”, he/she would have to pay a $500 base value penalty plus an additional restitution of $10,560.”

The restitution for each fish discarded dead wouldn’t have to be nearly that high.  Perhaps the going ex vessel price for the fish, plus an additional restitution amount linked to size and reproductive potential.  So the price for accidentally killing a 20-pound striped bass might be $80 or $90 ($4.00 or $4.50 per pound) with nothing more added, while killing a 50-pound fish might incur a $200 or $225 base rate plus another $200 or $300 to compensate the public for the lost trophy and reproductive capacity.

Numbers like that add up quickly, and would probably convince any trawler that making a tow through a concentration of off-limits striped bass would be a very poor economic decision. 

Down in Virginia, paying similar restitution for dead red drum—even though many of them were too large to have any market value at all—could well be seen as an unacceptable financial risk that made fishing in the ocean, rather than in the Chesapeake Bay, where the purse seiners are limited to an annual landings cap of 51,000 metric tons/1,124,360 pounds, the preferred economic alternative.  (While there is still the possibility of dead discards when fishing offshore, there less of a chance that anyone will witness the kill, something likely to make captains monitor the net less “attentively” and which also leads to the question, “If no one sees you dumping a load of red drum or striped bass overboard, did any bycatch occur?”)

 The commercial fleet might well call such outcomes unfair, but is it any more equitable to allow a handful of people to not only profit from a public resource without paying the sort of royalties or separation fees associated with taking timber or minerals from public land, but also to incidentally diminish the abundance of other public resources and so impair the public’s ability to enjoy them?

Restitution fees would also create incentives, as they would have the least impact on diligent fishermen, who are willing to avoid setting nets at times and places where bycatch is likely, and/or are willing to invest in new technology such as the bycatch-reducing Ruhle Trawl.  But they would impose a meaningful economic cost on those who are willing to kill significant quantities of non-target species in order to net a profit.  

Restitution fees would also favor fishermen who use more selective and/or less damaging gear, such as traps, pound nets, or hook and line, which allow for a very high proportion of live releases (admittedly, with some low level of discard mortality), over those who fish less selective gear designed to capture large quantities of fish at one time, which often kills a large proportion of anything that ends up in their nets.

Restitution payments may sound like a radical concept, and when applied to bycatch-related mortality, they are. 

But they are also widely employed in other wildlife management scenarios, and if applied to large-scale fisheries, would provide an economic incentive to do the right thing.  That would be a sharp contrast from the current situation, where doing the wrong thing often carries the greater financial reward.