NEW ECONOMIC REPORT CASTS LIGHT ON NATION'S FISHERIES

The National Marine Fisheries Service has recently released its latest edition of Fisheries Economics of the United States, the newest in an annual series of reports that dates back to 2006.  The report provides an overview of the nation’s commercial and recreational fisheries as of the end of 2022 and, from my perspective, contained a few surprises.

Perhaps the biggest surprise related to the relative size of the commercial and recreational fisheries. 

If you think back to 2014, you might remember when Michael Nussman, then the president of the American Sportfishing Association, kicked off the Center for Sportfishing Policy’s (then, the Center for Coastal Conservation’s) drive to pass the so-called “Modern Fish Act,” which was intended to weaken the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act with respect to recreational fisheries.

As part of that kickoff, Mr. Nussman displayed two pitchers, one filled with gumballs, and one with a single gumball rattling around in the bottom.  The pitchers, along with the gumballs that they contained, were supposed to represent the relative landings of America’s commercial and recreational fishing industries—which, given the size of some of the big commercial fisheries for walleye pollock and menhaden, was probably a reasonably accurate assertion.  With that relationship established, he then poured most of the gumballs from the “commercial” pitcher into the “recreational” one, claiming that the number of gumballs in each pitcher represented the relative number of jobs supported by each industry, with the recreational industry being the clear leader.

I didn’t think too much about his jobs comment, because I tend to pay more attention to the conservation aspects of fisheries management than to economic issues and, I suspect like many anglers, always accepted industry claims that recreational fishing provided greater economic benefits than does the commercial sector.  I never gave such claims any critical thought.

Apparently, that was a mistake.

The Fisheries Economics report reveals that the commercial sector not only supports more than twice as many jobs as does the recreational fishery—about 1,600,000 commercial jobs compared to only about 700,000 in the recreational sector—but also generates somewhat higher sales, $183 billion versus $138 billion.  

While many economic gauges of the commercial fishing industry, including sales and total revenues, were slightly lower in 2022 than they were in 2018, jobs were the one exception, showing steady growth each year, with the exception of COVID-impacted 2020.

It seems that the hoary advice to “Trust, then verify” applies to the recreational fishing industry's pronouncements as well as to everything else.

The nation’s commercial fisheries differ widely from region to region, in both revenues and the type of seafood caught.  Probably to no one’s surprise, the North Pacific region—which means Alaska—produces nearly 58% of all seafood landings (by weight) and 35% of the revenues.  Most of those landings are comprised of finfish, and most of that finfish is low-value walleye pollock which, in the United States, typically takes the form of Fillet O’ Fish sandwiches and imitation crab, although the majority of the walleye pollock landed are exported to other nations.  Because so much cheap pollock is in the catch, the average price of North Pacific seafood is the lowest of any of the regions, at about $0.43 per pound.

We see the opposite situation in New England, where only about 447 million pounds of seafood is landed—just 5% of United States landings—but because around 90% of those landings are high-value shellfish, mostly sea scallops and lobster, the average value of New England's landings in 2022 was $3.20 per pound, placing the region in second place for landings revenue.  That trend was even more pronounced in the Western Pacific—Hawaii and the various Pacific island territories—which only accounted for an inconsequential 0.35% of United States landings, but its landings were comprised almost entirely of tuna and other high-value finfish, which were worth an average of $4.62 per pound.

The volume and value of commercial landings in the other regions fell somewhere between those extremes, whether ranked by value, pounds landed, or average price per pound.  One of the interesting aspects of the commercial landings data was that, in five out of the seven regions (for whatever reason, NMFS did not break out data for the Caribbean region in the report), shellfish landings substantially exceeded landings of finfish.  The North Pacific and Western Pacific regions were the only exceptions to that general trend.

The recreational fishery showed more consistently positive economic trends than did its commercial counterpart.  All four of the economic indicators—jobs, sales, value added, and income—showed steady growth between 2018 and 2022, with no COVID-related dropoff.  

Angling-related jobs increased by 8% between 2021 and 2022, while sales increased 22%, income increased 18%, and value-added also increased 18% in the same period.  Durable equipment purchases accounted for the lion’s share of all the economic indicators; the remainder was attributable to expenditures made on fishing trips.  

I was surprised to find that, of the three fishing modes—for-hire, private boat, and shore-based—shore-based trips had the greatest economic impact, contributing 8% to employment, sales, and value-added impacts, and 7% to income, although the private-boat mode trailed the shore-based mode closely in every category but employment, where it lagged substantially.  In each case, the for-hire mode lagged the other two modes, and was particularly far behind in the sales and value-added categories.

As was the case in the commercial fishery, the characteristics of the recreational fishery differed from region to region.  Not surprisingly, the value of the recreational fishery was greatest in the south, where year-round fishing is the norm, and less in more northern (or, in the case of the Western Pacific, less populated) regions.  The Gulf of Mexico saw anglers expend more money, $5.1 billion ($3.4 billion of which was generated in west Florida), on fishing trips than anglers in any other region.  The Gulf was followed by the South Atlantic ($3.5 billion, with $1.6 million generated in east Florida) and Mid-Atlantic ($2.3 billion) regions.  The lowest trip expenditures were made in the Western Pacific ($435 million), New England ($584 million), and North Pacific ($696 million) regions.

How that money was spent differed substantially from region to region.  In most places, the for-hire fishery played a relatively minor role.  Although it accounted for about 60% of trip expenditures in the North Pacific, perhaps because of the dominance of the tourism industry there, and for about one-third of the expenditures in the Pacific region, it played a much smaller role elsewhere, accounting for a little less than 20% of trip expenditures in the Gulf of Mexico, perhaps 10% in New England, and little more than 5% in the Mid-Atlantic and South Atlantic regions.  In the Western Pacific, it played no role at all.

Perhaps unexpectedly, shore-based angling accounted for close to 60% of all trip expenditures in the South Atlantic, and less surprisingly, about half in the Western Pacific; in all other regions, except for the North Pacific, shore-based fishing contributed to between 30% and 40% of all trip expenditures, which is a large percentage, given that fishing from shore is not generally a costly endeavor.  Private boat fishing, which can be expensive, was the primary contributor to trip expenses in all regions except the North Pacific and South Atlantic.  In the Pacific region, shore fishing, private boat fishing, and for-hire fishing seem to account for approximately equal shares of trip expenditures.

Unlike the commercial data, which only showed trends since 2018, the recreational data goes back to 2013, and shows that angling effort has dropped sharply over that time.  Total trips, shore-based trips, and private boat trips all peaked in 2013, and have declined since, although 2022 effort in all three categories was noticeably above the lows hit in 2019.  The for-hire pattern is a little different, with trips peaking in 2014 but coming close to that level again in 2015, 2019, and 2021, before declining in 2022 to what was probably close to the time series average.

The national recreational catch was led by East and Gulf Coast fish.  In 2022, anglers caught (both landed and released) 70.1 million seatrout, 33.5 million striped bass, and 29 million of what the report listed as “summer” flounder, but given that it also said that such flounder were caught in the Atlantic and Gulf of Mexico, probably included southern and Gulf flounder as well.

As one would suspect, the catch of some species increased between 2013 and 2022, while the landings of others decreased during the same period.  The largest increases were to catches of red snapper (37%), striped bass (4%) and the various Pacific tuna (2%), while the largest decreases were to catches of dolphin (-58%), Pacific salmon (-38%), and summer flounder (-35%).

Looking at those figures, it becomes glaringly obvious that the declines were far greater than the increases, and that we seem to be losing far more than we’ve gained.  With the exception of red snapper, which hasbeen the beneficiary of a long, rigorous rebuilding program, there’s not a lot of evidence of good fisheries management anywhere in that list.

And that should start warning bells ringing.  As the Fishing Economics report shows, both the commercial and the recreational fishing industries can be important economic drivers for coastal states and, in the aggregate, important to the national economy as well.

But as I’ve noted so many times, if we want to have a fishing industry, we need to have fish.

Which means that maintaining an effective federal fishery management system ought to be a national priority, and one that must not be undermined by those, in both the commercial and recreational communities, who would sacrifice long-term sustainability for a mere few seasons of gain. 

STRIPED BASS MANAGEMENT BOARD TO FOCUS ON RELEASE MORTALITY

 

At last January’s meeting of the Atlantic States Marine Fisheries Commission, striped bass anglers naturally focused on the actions of the Atlantic Striped Bass Management Board, which finalized Addendum II to Amendment 7 to the Interstate Fishery ManagementPlan for Atlantic Striped Bass, and set the compliance requirements that states must meet for the 2024 fishing season.

The Management Board meeting ran far over its scheduled time, as such meetings are wont to do.  As a result, an important matter that normally would have been addressed at that meeting wasn’t aired until the next day, when David Borden, the Governor’s Appointee from Rhode Island, raised it at the meeting of the Interstate Fishery Management Plan Policy Board.  Mr. Borden said,

“At the last Board meeting I raised the subject of catch and release mortality on striped bass.  It’s well reflected in the minutes the concerns [sic].  But to summarize the concern is, we don’t currently have a process to examine that issue.  I’m getting increasingly concerned about the lack of that effort on that particular issue, because 40 percent of the mortality on striped bass relates to catch and release.  When you combine that with the news that we seem to get at every single meeting about poor year classes here, poor year classes there, invasive species feeding on striped bass in the estuaries and so forth.  I think we’re getting into a really dangerous place, where we have very limited management measures to address some of those types of concerns…”

The upshot was the Megan Ware, the Maine fishery manager who chairs the Atlantic Striped Bass Management Board, said that she and Emile Franke, the Fishery Management Plan Coordinator, would

“compile some of the documentation we’ve had, in terms of discussions on discard mortality, what the challenges are…some of the thoughts from the Law Enforcement Committee, the Technical Committee, so that is all in one place.”

Ms. Ware also talked about pulling together a workgroup that could prepare the groundwork for a broad discussion of discard mortality, which might eventually lead to concrete management measures.

It appears that further discussions on striped bass release mortality will be held when the Management Board meets on May 1.  The agenda for thatmeeting reveals that Dr. Michael Armstrong of Massachusetts will make a presentation on the findings of an extensive release mortality study that the Commonwealth of Massachusetts has been working on in recent years.  As the Division of Marine Fisheries explains on its website,

“Between 2020 and 2021, DMF biologists tagged 349 striped bass with accelerometer transmitters, caught with both live and dead bait using both circle and J-hooks.  These specialized tags sense ‘tail beats’ from the fish within an array of receivers, informing researchers whether the fish dies or not.  Preliminary analyses suggest that survival is related to hook location, water temperature, and handling time.

“As a follow-up, we will be expanding our investigation of release mortality to include striped bass caught via artificial lures and flies.  During the summers of 2023 and 2024, we will be seeking volunteer anglers to collect information when they go striped bass fishing…

“The ultimate goals of this project are to evaluate the conservation benefit of using circle hooks, identify the causes of release mortality, and to provide an updated estimate of release mortality that is representative of the entire recreational fishery.”

The study, when finally completed, peer-reviewed, and published, is likely to provide very meaningful guidance on how fishery managers might reduce striped bass release mortality.  Some of the information already developed, which is probably what Dr. Armstrong will present at the May meeting, will cast new light on why some released striped bass fail to survive.

In addition to Dr. Armstrong’s presentation, Ms. Ware and Ms. Franke will lead a Board conversation on information gleaned from past discussions on release mortality, and ask the Board whether it believes that a work group investigating the issue should be established.  To that end, Ms. Ware and Ms. Franke prepared a memorandum addressed to the Management Board, which set out some basic parameters defining such work group, and summarized the release mortality discussions to date.

It’s hard to believe that the Management Board won’t create a release mortality work group, given that release mortality is the only source of striped bass fishing mortality that is not meaningfully constrained by existing management measures.  In the recreational striped bass fishery, anglers are already constrained by a 1-fish daily bag limit, as well as a 28- to 31-inch slot size in the ocean and a 19- to 24-inch slot size in the Chesapeake Bay (along with different but similarly constraining slots in the Hudson and Delaware rivers); it’s impossible to reduce the bag limit below a single fish, and impractical to narrow the ocean slot size limit, and still maintain a viable recreational harvest, so addressing release mortality is the only unused tool left to fisheries managers.

And they’ll probably have to figure out the right way to use such tool very soon.

A new stock assessment update will be released prior to the ASMFC’s October meeting, and if that update indicates that the spawning stock biomass has less than a 50% chance of being rebuilt to its target level by 2029, the Management Board is going to have to take some sort of action to make it more likely that timely rebuilding will, in fact, occur.

Striped bass rebuilding was on track after the 2021 season, which saw slightly under 1,850,000 fish harvested and slightly under 28,700,000 fish released.  However, the recovery was thrown completely off track a year later, when harvest spiked to about 3,450,000 striped bass and releases inched upward to approximately 29,600,000.  Emergency management measures adopted in May 2023 were only partially successful in returning striped bass fishing mortality to sustainable levels and and upping the chances for a timely recovery, lowering harvest to around 2,550,000 fish while releases fell more sharply, to about 25,550,000.

Such figures suggest that additional management measures might be needed to rebuild the stock by 2029.  Addendum II empowers the Management Board to take any needed management actions without going through the formal Addendum process, and managing release mortality will almost certainly be part of any actions taken.  Probably for those reasons, Ms. Ware and Ms. Franke have suggested that any work group assembled report back to the Management Board by the Board’s October meeting, so that the Board might have such report on hand when it receives the results of the assessment update.

While we can’t know for certain what the report might say, we can probably assume that it will recommend some sort of closed season.  The big question is whether such season would only prohibit harvest, and allow a catch-and-release fishery to continue, or whether it would completely prohibit anglers from targeting striped bass.  With respect to that question, the Ware-Franke memorandum notes that

“…While there are noted concerns about the unenforceability of no-targeting closures (including concerns expressed by the Law Enforcement Committee), it is assumed that the maximum reduction in effort, and thus maximum reduction in number of releases, would be achieved with no-targeting closures.  No-targeting closures would address recreational releases from both harvest trips and catch-and-release fishing trips.  While no-harvest closures would reduce the number of fish harvested, angler behavior may shift to catch-and-release fishing, thereby increasing the number of recreational releases which is counter to the objective of reducing release mortality.

“…Fishing trips targeting other species that incidentally catch and release striped bass would still occur regardless of closure type.  Additionally, seasonal closures for striped bass may shift effort to targeting other species, or shift effort to other times of year when the striped bass fishery is open.  Regarding no-targeting closures, there is concern about the lack of standardized method to estimate the number of removals.  Estimating the reduction of removals from a no-targeting closure depends on assumptions about changes in angler behavior, which is highly uncertain…”

Such discussion sets out the issues that must be considered when deciding upon a no-harvest versus a no-target closure, but it also unintentionally illustrates the folly of trying to treat release mortality as an isolated issue, instead of integrating it into a suite of management measures that, when taken as a whole, reduces fishing mortality by the necessary amount.

That is largely captured in the sentence, “While no-harvest closures would reduce the number of fish harvested, angler behavior may shift to catch-and-release fishing, thereby increasing the number of recreational releases which is counter to the objective of reducing release mortality.”

Quite bluntly, merely “reducing release mortality” should never be a stand-alone objective.  The proper objective for striped bass managers is to “reduce fishing mortality by making appropriate reductions in the level of harvest and release mortality.”  Taking that approach would make things much easier for fishery managers, and would likely to lead to a more successful result.

Such success would be achieved by beginning with a no-harvest closure, and making two basic assumptions:  that anglers who previously harvested fish will shift to catch-and-release fishing, and that the fishing mortality from such shift to catch-and-release fishing will not materially exceed 9% of the mortality from harvest during the period that will henceforth be closed. 

Both assumptions are logical.  The Ware-Franke memorandum notes that

“Since 1990, roughly 90% of all striped bass caught recreationally were released alive either due to angler preferences (i.e., fishing with intent to release striped bass) or regulation (e.g., the fish is not of legal size, was caught out of season, or the angler already caught the bag limit).”

Given such a propensity for catch-and-release fishing, with even harvest-oriented anglers fishing and releasing bass caught out of season or in excess of the bag limit, it is not unreasonable to believe that most fishermen will continue to catch and release bass even if a no-harvest closure is imposed.  While there will be some recreational fishermen who will abstain from striped bass angling if they aren’t allowed to retain a fish, such fishermen will probably prove to be few in number; their temporary exit from the fishery will merely provide a buffer against any underestimate of release mortality.

Given that likelihood, any no-harvest closed season should be long enough to not only reduce fishing mortality attributable to harvest by the needed amount, but also to account for the assumed increased release mortality attributable to formerly harvest-oriented anglers switching over to catch-and-release for the duration of the closure.  

To avoid being caught in a sort of Xeno’s Paradox, in which managers lengthen the season to account for the additional release mortality caused by the original harvest closure, only to cause additional release mortality requiring a longer closure, ad infinitum, it would be necessary to add a few extra days to whatever season the calculations call for, to ensure that fishing mortality is adequately constrained.

In that manner, a no-harvest closure, which still allows some social and economic benefits to be generated by the fishery, could be fruitfully put in place.

Of course, there will be voices among the for-hire fleet, committed to maintaining a harvest fishery, who would condemn such an approach and argue that only a no-target closure would “fairly” address the release mortality problem.  In their minds, restrictions on harvest, but not on targeting, unfairly benefit the light-tackle fleet, which generally engages in catch-and-release, while placing the conservation onus on the traditionally harvest-oriented “six-pack” charters and party boats.

But the truth is that any vessel operator who took such position would be shooting themselves in the foot, for while a no-harvest closure would probably disadvantage the traditional boats more than it would the light-tackle fleet, such closure would still allow everyone to take people fishing and make some income, even if that income might be a little lower than it would have been if harvest was allowed.  Some boats might have to change their approach a little bit, and replace their usual broomstick-like trolling rods, wire line and umbrella rigs with spinning outfits and diamond jigs or other castable lures, but at least they could take out fares and show them a good time. 

While there are undoubtedly some customers who won’t charter a boat if they can’t kill a fish, there is also a real question as to how important harvest is to many charter boat clients, particularly in resort areas.  I well remember the former president of the Montauk Boatmens and Captains Association coming before NewYork’s Marine Resources Advisory Council some years ago and arguing that charter boats should be allowed to sell the striped bass caught by their customers, because many of those customers are tourists and have nowhere to keep or cook their fish once they return to the dock.

But while we can question the importance of harvest, one thing is certain:  Keeping a boat tied up at the dock during a no-targeting closure, instead of taking at least some customers out on catch-and-release trips, isn’t the best answer for anyone.

No-targeting closures would also cause real economic harm to tackle shops, gas docks and similar businesses, particularly in these days of often-scarce bluefish, three-fish bag limits for sea bass and more restrictive fluke regulations, when not fishing for striped bass could often mean not going fishing at all.

So as the Management Board begins to focus on release mortality, which they will probably be forced to do, anglers need to do all they can to ensure that managers don’t forget that release mortality, in and of itself, is not a problem.  A fish that dies after release is no more dead, and no more of a loss to the spawning stock than a bass that expires on ice in someone’s cooler. 

What matters is reducing overall fishing mortality.  Reducing release mortality, just like reducing harvest, is nothing more than one step toward achieving that goal.

 

 

 

 

 

A SETBACK FOR PLAINTIFFS CHALLENGING STRIPED BASS ADDENDUM II

 

Last month, I described how a group of Maryland charter boat operators and commercial fishermen have asked a federal district court to invalidate portions of the Atlantic States Marine Fisheries Commission’s recently adopted Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass, in an effort to escape their share of the burden of conserving and rebuilding the coastal migratory striped bass stock.

As I noted at the time, the complaint in the lawsuit was badly flawed, misstating several points of both fact and law.  Among other things, it denied that the striped bass stock was overfished, alleged that the management actions of the Atlantic States Marine Fisheries Commission were governed by the Magnuson-Stevens Fishery Conservation and Management Act, and argued that the Atlantic Striped Bass Conservation Act diluted the ASMFC’s authority to manage striped bass, when in fact just the opposite is true.

The complaint could probably best be described as an expression of the pique that spread among Maryland’s professional watermen after the ASMFC’s Atlantic Striped Bass Management Board, in adopting Addendum II, imposed a minor reduction in the commercial striped bass quota and required anglers aboard Maryland charter boats to adhere to the same bag and size limits as all other recreational fishermen in the Chesapeake Bay.

Although, in adopting Addendum II, the ASMFC followed its regular procedures, holding public hearings all along striper coast and having its Atlantic Striped Bass Management Board meet no less than three times to debate the content of such Addendum before it was finally adopted, the plaintiffs argued that the process that the ASMFC followed was flawed, and somehow violated the 14^th Amendment to the United States Constitution by denying them

“life, liberty, or property, without due process of law.”

Plaintiffs also made the curious allegation that,

“As residents and thus citizens of the State of Maryland, Plaintiffs, as individuals or organizational members, have no State procedural rights that they can feasibly assert against the States where they do not reside and which, acting in concert through the ASMFC, have deprived them of their constitutional rights over the voting objection of the State where they do reside and are citizens thereof.”

As such language suggests, the lawsuit can best be viewed as one more example of a growing phenomenon in which individuals or organizations which are subject to some form of government restriction that they do not agree with take the position that they have the “right” to do what they please—in this case, catch more striped bass than the ASMFC, in its collective wisdom and advised by its scientists, believes prudent—and claim that such imagined “right” is guaranteed by the Constitution of the United States, even if there is no compelling precedent that supports such allegation.

The complaint also includes some of the sort of anti-“administrative state” language that often goes hand-in-hand with the creative imagining of never-before-seen “rights,” with the Plaintiffs alleging that

“Over the last 70 years, administrative agencies at all levels of government have performed an ever-expanding variety of government functions and imposed more regulations than could possibly have been imagined upon the enactment of the [Administrative Procedures Act] in 1946 and its State equivalents.

“The APA and comparable state laws were adopted to establish a set of procedural rules to govern this non-legislative form of governmental decision-making and, of even greater significance, to provide an effective method to preserve individual rights against the abuse of administrative power and, most importantly of all, to preserve the right of judicial review of agency actions.  [numbering omitted]”

I could go on, but you get the idea.  The complaint, far from setting forth a cohesive set of allegations that, when read together, make a logical case for judicial relief, is instead a jumble of grievances flailing about for some sort of legal underpinnings, which claim Constitutional protection from just about any administrative action that might have economic consequences.

It’s the sort of complaint that, if I saw it eight or ten years ago, I would have deemed a certain loser, completely lacking the legal support needed to have even the slimmest chance of success.

Unfortunately, while there have always been a few marginally qualified judges who elevate their personal ideologies above well-established law, their numbers increased substantially not too long ago, when far too many judges fitting that description were appointed to the federal bench, at both the trial and appellate levels.  Because of that flood of incompetent jurists, we have also seen far too many ideologically-based court decisions, contrary to or openly defiant of established precedent, handed down by the federal bench in recent years. 

I have to admit that I was concerned that if one of that recently appointed breed of judge was assigned to the Maryland striped bass case, things might have headed off in the wrong direction.

Fortunately, that didn’t turn out to be the case.  The challenge to Addendum II was assigned to a very competent and experienced judge, who has even presided over another matter involving striped bass and the cupidity of some Maryland watermen.

That was the first bit of good news.

The second bit of good news came on Friday, April 12, when I learned that such federal judge, after hearing arguments from both sides, denied Plaintiff’s motion for a preliminary injunction that would have prevented the provisions of Addendum II, or at least such provisions as reduced the commercial quota and required anglers fishing from Maryland charter boats to follow the same rules as applied to every other angler in the Bay, from being enforced until final judgment was rendered on the Plaintiff’s claims.

The purpose of a preliminary injunction is to maintain the status quo, and prevent a party to a legal action from suffering harm, prior to the final judgment.  To prevail on a motion for such an injunction, a party must generally show that it will suffer irreparable harm if the preliminary injunction is not issued and that it is likely to prevail in the pending legal action.  Issues of fairness are also considered, so even if the party seeking the injunction is likely to suffer injury if it is not granted, an injunction will probably not issue of the other party is likely to suffer even greater harm as a result.

When the judge in the Maryland lawsuit considered all of the relevant factors—with the likelihood of Plaintiffs’ ultimate success being the single biggest factor of all—he decided that it would be inappropriate to issue a preliminary injunction.  So far, Addendum II remains in full force and effect.

Capt. Robert Newberry, who serves as Chairman of the Delmarva Fisheries Association, one of the Plaintiffs in the suit, responded to the judge’s decision on the preliminary injunction by writing,

“Well, we did not get our injunction that we wanted yesterday from the federal court.  The judge did not dismiss the case, but is waiting for a response from ASMFC for a request for dismissal due on April 19^th.  We have till April 26^th to file our answer on the request for dismissal.  IT AIN’T OVER YET !!!  STAY TUNED !!”

And he’s completely correct.  The lawsuit is not over.

Yet.

But it may well be living on borrowed time.

As I noted above, a Plaintiff’s motion for a preliminary injunction will generally not be granted if the  Plaintiff is unlikely to ultimately prevail in the lawsuit.,  Given that the complaint makes a number of incorrect statements of both facts and law, and there is, to be charitable, very little precedent supporting its claims that the Plaintiffs’ Constitutional rights have been infringed, the court’s failure to grant a preliminary injunction may well presage the final outcome of the suit.

Taking a realistic view of the allegations in the complaint, the only claim that might possibly fly is the argument that the ASMFC’s fishery management decisions are subject to judicial review under the federal Administrative Procedures Act, and even that claim is on very shaky ground.

In 2010, the United States Court of Appeals for the 2^nd Circuit confronted the same issue in New York v. Atlantic States Marine Fisheries Commission, and found that

“The APA definition [of ‘agency’] expressly excludes certain entities, such as Congress and the federal courts.  Although an interstate compact entity [such as the ASMFC] is not specifically exempted from the definition, this ‘textual silence, when read against the backdrop of…the canons of construction applicable to statutes that implicate the separation of powers, points,’ to the conclusion that the ASMFC is not a federal agency within the meaning of the APA…

“The fact that the ASMFC was created by an interstate compact and approved by Congress does not alter this analysis.  We find that the APA’s definition of a federal agency does not fit the Commission.  The ASMFC Compact states that the ‘Commission shall be a body corporate, with the powers and duties set forth’ in the Compact.  Although the Commission acts in parallel with the federal government…it exists outside the federal administrative law framework.  And, it would upset the ‘federal-state balance’ to subject its actions to accountability measures devised to restrain the actions of federal authorities.

“The regulation of the territorial sea is a matter traditionally left to the states…With one enumerated exception, the [Magnuson-Stevens Fishery Conservation and Management Act] states that it shall not ‘be construed as extending or diminishing the jurisdiction or authority of any [s]tate within its boundaries…’  the fact that federal and state entities act toward a common goal does not convert the state—or interstate—body into a federal one.  [emphasis added, citations omitted]”

Maryland doesn’t lie within the 2^nd Circuit, so the federal court hearing the challenge to Addendum II is free to ignore the finding of the court in New York v. ASMFC.  However, that decision is nonetheless persuasive authority, and there is a good chance that it will be followed.

What will probably happen, now that the motion for a preliminary injunction has been denied, is that the ASMFC will move for the case to be dismissed, on the grounds that the complaint fails to make a claim for which legal relief may be granted.  The ASMFC’s brief will then cite New York v. ASMFC in support of its argument that the ASMFC is not subject to judicial review pursuant to the APA, and that all of the other, even weaker arguments made it the complaint have no merit.

If the court agrees, the matter will be dismissed, and Addendum II will remain in place.

If the court finds that Addendum II is subject to judicial review, it is still likely that after such review, the court will find that the record created at the various meetings of the Atlantic Striped Bass Management Board, combined with testimony provided in writing and at the public hearings, provided adequate grounds for the Management Board to adopt the Addendum.

Either way, the court’s refusal to issue a preliminary injunction after the April 12 hearing was clearly a setback for the Plaintiffs, and probably only the first of additional setbacks that will lead to the lawsuit finally dying an overdue and very well-deserved death.

"MODERN" SPORT FISHING: I DON'T SEE THE POINT

 

Sometimes it seems that I’m the only person I know who doesn’t spend their free time watching YouTube and similar videos.

As entertaining or informative as such videos can supposedly be, I don’t have the time to watch them unwind, particularly when the host spends too much time concentrating on product endorsements and self-promotion, and far too little on meaningful information.  When I want to learn something, I still prefer the brevity, clarity, and convenience of the well-written word.

But sometimes I end up in a doctor’s waiting room or an auto repair shop or somewhere else where it’s too noisy or too awkward to read and I need to kill time, so like just about everyone else within cell tower range I pull out my phone, check email and the news, and end up scrolling through someone’s fatuous media posts while waiting for my name to be called.

That’s when I can end up scanning fishing videos, and if what I see there represents the “modern” approach to recreational fishing, I’m happy that I’m hardcore old school, because a lot of what I see doesn’t look like much fun at all.  I’m not even sure why someone who’s not in the fish-selling business would even bother to do it.

Many of the videos that I’m talking about fall into the broad category of deep-dropping with electric reels.

They tend to open with a shot of a bent-over rod, the tip maybe bouncing a bit, still stuck in a holder, accompanied by a lot of breathless dialogue about the “big fish” that’s being winched to the surface by an electric reel, which is dutifully grinding away in the foreground, while the supposed fishermen speculate about what might have taken the bait—which usually turns out to be either a tilefish or some kind of grouper, although deep-water snappers and various exotics sometimes make a cameo appearance.

The last video of that sort that I happened to view starred a warsaw grouper that slowly emerged from the depths displaying signs of severe barotrauma, with bulging eyes and a bloated swim bladder that testified to the difference between the pressure at the surface and that which prevailed 1,000 feet below.  

I suppose, if they were sentient, the reel and the rail of the boat would have been very proud of the role that they played in vanquishing the decent-sized grouper, although given all the hooting and self-congratulations coming from the people on board the boat, one would almost think that they played some meaningful role in the fish’s capture, outside of baiting the hook (at least they haven’t yet figured out how to automate that part of the process) and pressing whatever button or throwing whatever lever was necessary for the reel to do its work.

In truth, I wasn’t quite sure what they were hooting about. Spending a very substantial amount of money on a boat, engines, and related equipment, along with the ongoing expenses of dockage, insurance, maintenance, and fuel, just to go out on a vast and often unfriendly ocean to watch your reel catch a fish, seems like a strange way to waste cash.  

It would be quite a bit cheaper, in both money and time, to just buy the grouper at a local market, at which point the folks in the video could have had their fish without needing to deal with the spray and the slime and the sunburn, and could then have spent all their time and money playing video games that didn’t involve any physical exertion—which, in the end, was just about all that their supposed fishing expedition amounted to.

Most of the other videos also fall into the “letting the boat catch the fish” category, although they at least leave out the electric reels.

Almost always, large pelagic fish are involved.  Most often, they’re giant bluefin tuna, although yellowfin tuna, bigeye tuna and, for some reason, wahoo also appear.  These videos typically depict the alleged recreational fisherman standing in the cockpit of a boat, next to a heavy, bent-butt trolling rod that, as in the case of the electric reel shots, remains firmly seated in a rod holder.  The rod bends with the weight of a hooked fish, and as the boat and the rod holder struggle mightily against the strength and the mass of their struggling opponent, the “angler” continues to stand there, taking whatever opportunity arises to crank in a little line, often pulling it down toward the reel with his other hand.  Eventually, the fish weakens enough to be cranked to the boat, at which point it is inevitably dispatched, typically with a harpoon.

Such behavior wouldn’t be remarkable if performed by a commercial fisherman.  After all, a commercial fisherman’s job is to put valuable fish in the boat, so that they might be sold to support the fisherman and the fisherman’s family.  To accomplish that job, a commercial fisherman will employ any and all legal means that might help to get the job done—and rightfully so, because the more quickly and efficiently such fisherman can fill up the boat and offload at the local buyer, the more profitable the trip will be.

But recreational fishing isn’t about efficiency or profit, it’s about recreation (if you think you’re a recreational fisherman, but sell any part of your catch, you’ve been mislabeling yourself, for the Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal marine waters, defines recreational fishing as

“fishing for sport or pleasure,”

and commercial fishing as

“fishing in which the fish harvested, either in whole or in part, are intended to enter commerce or enter commerce through sale, barter or trade,”

so if you sell even a few of your fish, you clearly fall into the commercial category.) 

Recreational fishing for large pelagic fish is about pitting the angler’s endurance, strength, and skill against the weight and strength of the fish.  Ernest Hemingway once described fighting a giant bluefin as

“a back-sickening, sinew-straining, man-sized job even with a rod that looks like a hoe handle.  But if you land a big tuna after a six-hour fight, fight him man against fish until your muscles are nauseated with the unceasing strain, and finally bring him up alongside the boat, green-blue and silver in the lazy ocean, you will be purified and will be able to enter unabashed into the presence of the very elder gods, and they will make you welcome.”

The supposed recreational fisherman who never takes the rod from the holder denies themselves such experience, and certainly earns the old gods’ scorn.

Why they would record themselves taking such ignoble actions, and post them online for all to see, is something that I can’t comprehend.

And then we have the videos that combine the worst of both worlds, fighting a great gamefish from the rod holder—with an electric reel.

The broadbill swordfish has long been seen as the ultimate catch for a blue water angler.  That was particularly true in the past, before longer-ranged boats equipped with cutting edge electronics opened up new ways to find them.  Traditionally, the only way to hook a sword was to find one “finning out” on the surface of the sea, and then try to present a bait.

That wasn’t easy. 

A 1958 article in Sports Illustrated magazine described swordfishing this way:

“To meet a swordfish in combat a man must spend long days on a bright and shimmering sea, searching until his eyes burn for two black fins which tell him a swordfish, belly heavy with squids and fishes, has surfaced to sun and rest.  He faces the disheartening fact that a satiated swordfish will more often than not disdain his bait, and that he will have to hunt on.  And, if at the end of some exhausting hunt a man hooks a swordfish, he must be ready for hours of punishing battle.  A swordfish will not often run with the speed of a tuna or jump with the frenzy of a marlin, though he can and may do both.  He fights deep and with unbelievable determination.  And, to compound the unique physical and emotional stresses of swordfishing, the angler knows that his broadbill is very likely foul-hooked or snarled in the cable leader and may escape, and that even if he is fairly hooked in the mouth his jawbone is so fragile that the hook might pull out at any moment…

“It was not until 1913, in fact, that the swordfish fell victim to a sporting angler and thus formally entered the ranks of the world’s great game fish.  And the man who caught him, William C. Boschen, even today is a legendary figure…

“Boschen took the world’s first broadbill on rod and reel.  It weighed 355 pounds.  He had fought it for an hour and a half with nothing but a rod belt, and his line tested only 42 pounds.”

Since then, anglers have learned that they could be much more successful by abandoning the search for swords on the surface, and instead drifting baits at various depths near the edge of the continental shelf at night.  That technique was pioneered in Florida, as recreational fisherman began copying a method long employed by Cuban small-boat commercial fisherman (Santiago, the Cuban fisherman created by Ernest Hemingway in The Old Man and the Sea, was fishing in that manner when he hooked his great blue marlin), and has since spread all along coast.

More recently, recreational fishermen have begun deep-dropping baits for swordfish during the day, drifting them near the edges of submarine canyons and over humps and bottom structure 1,000 feet and more beneath the surface.

The new approaches to swordfishing have proven much more effective than presenting baits to finning fish.  Where the Sports Illustrated article noted that

“In the almost half-century of big-game fishing since 1913, fewer than 750 broadbill have been taken by barely 200 men and women,”

National Marine Fisheries Service data suggests that recreational fishermen on the Atlantic Coast of the United States landed over 6,300 swordfish in 2023 alone, although that figure is subject to substantial uncertainty.  It is not only the numbers of today’s recreationally-landed swordfish that contrast sharply with those caught in the past, but also their size.  While the fish baited on the surface tended to be large, rarely weighing less than 200 pounds, the average weight of recreationally-landed swordfish in 2023 was a mere 70.8 pounds; given that a fair number of triple-digit swords are still encountered, that low average suggests that many truly small fish are also being killed.

But it’s not so much the size of the swordfish being killed that’s disturbing—although that, too, seems somehow wrong—as how so many of those fish are caught.  Because of the great depths involved, and the heavy weights needed to get baits down to the fish—and because too many of today’s anglers are lazy, and just want a dead fish for their media feeds, while putting in as little effort as possible to earn it—deep-drop swordfishermen have, for the most part, adopted electric reels.  While some do it the right way, using the motor only to reel in heavy weights and empty hooks, while fighting a fish in the traditional manner, others use reels that don’t even provide an opportunity for hand-cranking.

And, to further insult their quarry, such fishermen typically don’t even deign to pick up the rod when a swordfish strikes, instead leaving the rod in its holder while using the reel’s motor to winch the fish to the surface, as if it was a crab pot or maybe an anchor instead of the greatest blue water gamefish of them all.

That’s how they do things these days, but I have to admit that such modern forms of angling leave me cold.

I have been fishing blue water for over forty-five years, and in all that time, I have never caught a swordfish, although I’ve seen a few finning out.

I’ve also never used an electric reel, and never left a rod in the holder after the strike.

I still hope to catch a swordfish one day.  I hope to be out on the edge this season, dropping down baits, waiting for that one special take.  If and when the bite comes, I will fight the fish from a belt and harness, however long that may take, and the only way line will come back on my reel is if I turn the handle with the strength of my arm and put it there.

Having said that, I realize that I’m no longer young—or even middle-aged, and I very well might lose the race with time.  Before I get a chance to pit myself against a quality sword, I may no longer be up to the challenge of fighting the fish.

And if that’s how things work out, so be it.

I won’t dishonor the fish—or myself—with an electric reel or a rod that stays in its holder. 

I see no point in catching my fish the modern, mechanically assisted way. If I can’t pay for my big fish with cramps and sore muscles, with blisters and bruises from fights that, on occasion, tear the skin from my palms and leave me almost too weak to stand, I’d rather not have them at all. 

 

 

THE NOT-SO-GREAT RED SNAPPER COUNT

 

I have probably observed the debate over the recreational red snapper fishery in the Gulf of Mexico for close to twenty years, if not a bit more, and if anything has proved true over that time, it’s that the folks who represent the private-boat recreational red snapper fishery have are particularly averse to two things: accepting their share of the responsibility for the health of the red snapper resource, and telling the unvarnished truth about what is really going on with red snapper management.

From the time that I first became familiar with the fishery, I have seen representatives of the large and growing private-boat recreational fleet blame some or all of the red snapper fishery’s problems on the commercial fishery, on shrimp trawler bycatch (that one, at least, contains a kernel of truth), on the catch-share program that ended commercial overfishing, on the limited fleet of for-hire vessels, on environmental organizations that seek to limit fishing mortality, on federal fishery managers, on the statisticians supporting the Marine Recreational Information Program and, most recently, even on the sharks that have been swimming in the Gulf’s waters for millions upon millions of years.

About the only people those anglers’ rights groups opt not to blame are the recreational fishermen themselves, despite data demonstrating chronic angler overharvest that continues, mostly unabated, for years.  Instead of accepting their responsibility for angling overages, every time recreational fishermen are found to exceed their annual harvest limit, they react like the spoiled four-year-old caught with his hand in the cookie jar who, instead of admitting to the transgression, takes the offensive and wails that “Nobody loves meeee!”

And like a spoiled child, those red snapper anglers will dissemble, skewing the truth in a desperate effort to elicit sympathy and convince someone—just about anyone—to take their side.

The most recent example of such behavior emerged this week, in the form of an opinion piece titled “The Great Red Snapper Count:  A Costly Disappearing Act,” which appeared on the website of the Coastal Conservation Association, arguably the most militant of the anglers’ rights groups involved in the red snapper debate.

The primary thrust of the opinion piece was that the results of the so-called “Great Red Snapper Count,” which was supposed to be an extensive survey of the red snapper population in the U.S. portion of the Gulf of Mexico, have been squandered, because

“the $12 million independent study funded by Congress…is gathering dust on a shelf at NOAA.  Anglers have seen no substantive changes in management of the fishery.  Almost a decade after the funding was approved, it’s almost as if the [Great Red Snapper Count] never happened.”

And that bothers the Coastal Conservation Association and its red snapper-hungry members, because

“The [Great Red Snapper Count] was finalized in 2021 and found a red snapper population that was at least three times larger than NOAA’s estimates…When it was released, Sen. Shelby [who was primarily responsible for obtaining the appropriation funding the study] said via Twitter that he was ‘proud to have led the efforts in Congress to fund the Great Red Snapper Count.’  He added, ‘Hopefully this data will allow for more red snapper fishing opportunities in the Gulf.’”

There is little doubt that more red snapper was what the CCA and its members wanted, too, and they were considerably piqued when they didn’t get them.

It was that pique that led to more dissembling and more misleading comment.

The opinion piece told readers that

“NOAA pledged to take the findings of the [Great Red Snapper Count] and incorporate them into its next assessment of red snapper, which was scheduled to begin in 2021,”

and tried to convince them that

“it would have been reasonable to expect the results of the [Great Red Snapper Count] to simply become the new benchmark,”

but that’s not how science works.  Data needs to be validated before it can be accepted.

And that’s when the CCA opinion piece really began to blow smoke, alleging that

“In January 2024—eight years after Congress funded the independent study and three years after it was finalized—NOAA announced that it was unable to produce a viable stock assessment for red snapper, the most studied species in the Gulf reef fish complex.  It turns out that NOAA’s red snapper stock assessment model contains more than a stunning 2,900 parameters, each with its own level of uncertainty and bias.  The model simply could not stand under its own weight.  Due to the model’s remarkable instability, reviewers recommended NOT including the findings from the Great Red Snapper Count at all.”

But that's not exactly what went on.

It’s true that the most recent Gulf red snapper stock assessment, formally known as SEDAR 74, the Stock Assessment Report for Gulf of Mexico Red Snapper, did not pass peer review and will not be used for management purposes.  Sometimes that happens.  The point of a so-called “benchmark” stock assessment is to consider new approaches to managing a particular species (in this case, SEDAR 74 included both the Great Red Snapper Count data and a proposal to divide the Gulf red snapper fishery data into three areas instead of the two used before), and the point of performing an independent peer review of such an assessment is because sometimes, when trying to explore new approaches, the assessment scientists will, unfortunately byt perhaps inevitably, get a few things wrong.

Apparently, that happened in SEDAR 74.

As for the rest of the claims made by the CCA, perhaps it’s best to refer to the presentation made to the Gulf of Mexico Fishery Management Council’s Scientific and Statistical Committee on February 28, which set out the reviewers’ objections to SEDAR 74.

Doing that, it appears that the peer review panel wasn't unduly concerned with SEDAR 74 ‘s “stunning 2,900 parameters” (although it did feel that the model was “too complex”) and their related uncertainty (all scientific data contains some level of uncertainty).  It also appears that there is little evidence that “the model simply could not stand under its own weight.”  Nor is their any evidence that, as the CCA opinion piece claimed, the Great Red Snapper Count data wasn’t included in SEDAR 74 because of “the model’s remarkable instability.”

Instead, the peer reviewers listed five main concerns with SEDAR 74:  Criticisms of it as a so-called “research track” stock assessment that took a new management approach to red snapper; how the assessment treated age and length data; how the assessment identified the red snapper stock; uncertainty in catch and landings data; and the Great Red Snapper Count data itself.

Yes, that’s correct.  The Great Red Snapper Count data didn’t fall victim to a faulty stock assessment.  Instead, the incorporated Great Red Snapper Count data was part of the reason why the assessment failed to pass peer review.

Let’s look at that in a little more detail.

Far from the Coastal Conservation Association’s contention that “it would have been reasonable to expect the results of the [Great Red Snapper Count] to simply become the new benchmark,” thepeer review panel, which was composed of members of the National Academy ofSciences Council of Independent Experts, and so had no inherent biases for oragainst the stock assessment, determined that

“It was premature to include the [Great Red Snapper Count] estimates in the model as potential biases have not been quantified and composition data were not available.”

The difference between the two comments was as stark as the difference between amateurs and professional fisheries scientists interpreting a set of data, and the difference between advocates for a particular result and disinterested researchers evaluating a particular source of information.

While the amateurs and the advocates are quick to decide that the Great Red Snapper Count’s findings justify an increase in red snapper harvest, the educated, professional fisheries scientists are far more reluctant to grant their imprimatur to a study that remains open to question.  At best, the professionals from the Council of Independent Experts found that the Great Red Snapper Count data could be used as ancillary information, even if the data does not fit into the assessment model.

Thus, despite the fact that, in funding the Great Red Snapper Count, Congress described its purpose as

“Estimating the absolute abundance of red snapper in the U.S. Gulf of Mexico,”

the peer review panel questioned whether the Count was a true absolute abundance estimate, and asked whether it should be treated as such.  During the panel discussion, there was some question as to whether the Great Red Snapper Count was even meant to be used as part of the stock assessment process.

In fact, the peer review panel had sufficient questions about the Great Red Snapper Count that it suggested that a new research team, separate from the team that developed the Count, examine some aspects of the data.  The panel recommended that such new team, ideally in consultation with the principal investigators from the Great Red Snapper Count, explore and quantify biases in the Count—if such exploration is even possible.  The peer review panel also recommended that such new, separate team examine the County’s catchability estimates, an issue that is closely tied to the issue of bias.

Beyond that, the peer review panel felt that additional inquiry was needed to determine whether the different survey methods and survey gear used in the Great Red Snapper Count caught snapper at the same rate, whether the Count truly selected all Age 2+ red snapper throughout the Gulf of Mexico, and whether the estimates provided by the Great Red Snapper Count are more or less reliable than estimates achieved through other methodologies, particularly when such estimates conflict.

There was also apparently a real question about whether the length composition data provided by the Great Red Snapper Count was representative of red snapper size distribution throughout the entire Gulf of Mexico.

The bottom line was that, while the Coastal Conservation Association is trying to convince its members, as well as the general public, that the Great Red Snapper Count is the most accurate gauge of red snapper abundance (and so justifies a substantial increase in the recreational red snapper kill), the fisheries professionals on the Council of Independent Experts who reviewed SEDAR 74, and reviewed the Great Red Snapper Count in a SEDAR 74 context, disagree.  They view the Great Red Snapper Count as a possibly useful study that may nonetheless be beset by biases and some questionable data.

In order to produce a benchmark stock assessment more likely to survive the peer review process, the peer review panel suggested that the stock assessment team revisit a number of issues, including recreational landings and discard data; age and length composition data; returning the stock assessment to a two-area, rather than a three-area, structure; the model’s sensitivity to changes in the steepness, natural mortality, and landings values; the evaluation of the starting year of the model, and shrimp trawl bycatch data.

The peer review panel also suggested that the stock assessment team revisit the Great Red Snapper Count data, but admitted that it didn’t really know how that ought to be done.

Thus, the Great Red Snapper Count was probably nowhere near as great as its proponents would have you believe.

After all of the hype, all of the effort, and all of the money spent on counting red snapper in the Gulf of Mexico, it appears that the results of the Count are far less impressive than the Coastal Conservation Association and other angling industry and anglers’ rights organizations had predicted and hoped.  In the end, the Great Red Snapper Count represents a very big data set that provides fisheries managers with some new, and some very flawed, information, which represents not a panacea, but merely another set of numbers to be crunched, analyzed, and put in their proper context by state and federal fisheries managers in the Gulf of Mexico.

The Great Red Snapper Count data is not “gathering dust on a shelf,” as the CCA claims.

It was included in SEDAR 74, as NOAA Fisheries had promised.

But the simple truth is, the Count is flawed, and should not be used to justify any fishery management action until more research is done.  The CCA and the rest of the anglers’ rights community can whine and complain that the Count wasn’t accepted at face value, and that anglers still can’t take home as many red snapper as they might like.

But the fact remains that the Great Red Snapper Count appears to be flawed, and that much more work is required before it might be ready to use to manage red snapper.

The anglers’ rights folks don’t like that fact, but it is fact just the same.

The Great Red Snapper Count just is not as great as the CCA and its allies pretend it to be.