"THE BIOMASS...DECIDED TO STAY OFFSHORE"

 

It’s a big ocean—big enough that, one would think, fish have many places to hide.

That’s certainly been a theme at many fishery management meetings that I’ve attended over the years, as fishermen rise to contest the need for management measures, arguing that various stocks aren’t overfished, but have merely moved on to places unknown.  And if you don’t know much about how the ocean supports life, it might even seem believable.

But the truth is that most of the ocean is pretty poor habitat.  Once you get past the edge of the continental shelf, which might mean heading a few hundred yards offshore in some places, and a hundred or more miles offshore in others, the bottom falls away quickly, to 10,000 feet or more, and the sea’s ability to support the sort of fish people typically like to catch and eat falls away just as quickly.

Back in the early 1970s, a musical group called “America” released a song titled "A Horse with No Name,” which included the line,

“The ocean is a desert with its life underground/And a perfect disguise above.”

I always liked that song, and it still plays in my truck from time to time, but back then I had not yet grown familiar with deserts, and only knew the ocean as a place where various party boats took me fishing for cod, so it took me a few years, and some meaningful time spent both in the desert and well offshore, before I realized how aptly its lyrics described the open sea. 

For, from the perspective of supporting life, the ocean is a desert.  The clear, indigo waters of the open sea only have such clarity and color because they hold so little life; the big offshore fish like the tunas and marlins are built to travel fast and far, to take advantage of baitfish concentrations that occur when a body of warm, clear offshore water rolls up against the cloudier, nutrient-laden ocean above the continental shelf, or collides with an upwelling of water from the deep ocean floor that also carries nutrients to the surface of the sea.  Fishermen refer to such places as color and temperature “breaks,” and seek them out knowing that, in the desert of the open sea, they form a sort of oasis where fish find a concentration of life on which they can feed.

Despite the size of the ocean, its most abundant life is found in the narrow strips of coastal sea, where phytoplankton thrives on nutrients brought down to the sea by rivers and up from the abyss by upwelling currents, zooplankton flourish among the abundant microscopic plants, and baitfish, feeding on the plankton, support a plethora of life that ranges from flounders to the great whales.

It's where almost all of the most common and most popular commercial and recreational fish species will be found.

Of course, when fisheries managers are contemplating more restrictive regulations, that can prove to be an inconvenient fact for those who don’t like the proposed rules.  For them, it’s always more convenient to think that the relevant fish aren’t in need of regulation, because they’re just somewhere out in the ocean.  

Thus, at the March meeting of New York’s Marine Resources Advisory Council, we saw a Long Island party boat captain, with a long history of opposing any restrictions on marine fisheries, argue that the state would be wasting its time if it considered adopting regulations to protect the false albacore (more properly, little tunny) fishery, because even if those fish sometimes seem scarce, they're just somewhere between the U.S. East Coast and Italy (false albacore are found in the Mediterranean Sea; however, there are no genetic studies, and no tag returns, that suggest that there is any interchange between the body of fish found off the United States and those found in the Mediterranean, or that the fish in the two areas are not reproductively isolated). 

A few years ago, when the Mid-Atlantic Fishery Management Council held a hearing on what eventually became Amendment 7 to the Bluefish Fishery Management Plan, the same individual tried to argue that bluefish weren’t overfished, despite a recent operational stock assessment that found otherwise, but were merely in the ocean somewhere between the U.S. and Africa.  And given the amount of water between the two places, perhaps he thought that no one could conclusively prove him wrong.

Unfortunately, such comments aren’t limited to a handful of fishermen.

Half a dozen or so years ago, then-Congressman Lee Zeldin (R-NY, now the head of the federal Environmental Protection Agency) condemned striped  bass conservation efforts, claiming that

“the ASMFC used flawed data that measures the Atlantic Striped Bass stock based on the entire eastern seaboard, yet failed to account for Atlantic Striped Bass outside of the 3-mile fishing area, assuming fish abide by arbitrary bureaucratic boundaries.  Alternative data that shows the Striped Bass stock is in a better place outside the 3-mile limit was not only thrown out by the Commission, but the Commission also moved to no longer provide data collection in those waters, virtually assuring that any future decision regarding the Striped Bass fishery will be based on flawed data in perpetuity.”

The fact that there is no reliable data, alternative or otherwise, showing a healthy striped bass population that exists out beyond the 3-mile limit, and that striped bass surveys outside of state waters were halted largely because they weren’t finding enough fish to make such surveys worthwhile, was completely ignored by Zeldin, who was merely trying to help some of his constituents to keep killing too many fish, regardless of the health of the stock.

While politicians sometimes take such positions, it is usually to appease fishermen in their districts, who are attempting to stave off more restrictive rules.  However, it often seems that the fishermen themselves actually believe what they are saying, either because they honestly can’t believe that fish populations could have fallen low enough to threaten their livelihoods or, perhaps more often, because of deeply-ingrained confirmation bias, which leads them to focus on the good news (“my friend Joe caught so many cod in a single tow yesterday, that he had to shovel them off the deck, dead, in order to stay within his trip limit”) while ignoring the bad (“for the last couple of months, almost none of the boats in this entire harbor have come close to catching their trip limit of cod when they go out.”)

Thus, even though New England’s northern shrimp population has been a clear victim of a warming ocean, with the stock collapsing well over a decade ago, it wasn’t surprising to see a fisherman, who had been allowed to participate in a fishery designed to sample the stock during the winter of 2024-25, note that

“The traditional places the shrimp would be during the year, they weren’t there.  I don’t know why.”

But instead of conceding that a warming ocean and past overfishing might have badly depleted the shrimp population, the fisherman assumed that there was a very different reason for his inability to catch any shrimp:

“It seems as though the biomass of shrimp decided to stay offshore this year, but we haven’t been out in so many years, I don’t know it that’s the new normal or just something that happened now…

“There’s a couple of guys left who have done it throughout time, and some older guys said that, in the ‘70s and another time in the ‘80s, they saw the exact same thing happen…

”We had some years when the shrimp catch was crazy…One time, I went out and  made a tow, and I had almost 6,000 pounds in less than an hour.  That may sound discouraging, because I didn’t see that this time, but if you talk to the older guys, they’re like, ‘This has happened in cycles forever.’

“Maybe the shrimp are not going to come back into these waters.  I don’t know.  You could say it’s because the water’s warming, but if you look at studies this year, the Gulf of Maine was colder, more like a traditional temperature for the Gulf of Maine.  So maybe the shrimp are just waiting for the email.”

It’s just very, very hard for fishermen to accept that the abundance of fish or other marine resources that they have depended upon for so long has crashed; thus, if they can’t catch, it’s not because the population has declined.  The fish have just moved.

Such thinking isn’t limited to the northeast. 

Down in North Carolina, fishery managers are trying to rebuild a badly depleted southern flounder stock.  They’re having some difficulties, because a stock assessment completed earlier this year did not survive the peer review process; the review panel found that there was no unique North Carolina population of southern flounder, that fish from North Carolina mixed with fish from other states offshore and were caught by fishermen from those other states, and that trying to manage flounder in North Carolina without considering the rest of the fish in the same stock was a flawed approach.

However, a regional assessment of the southern flounder stock completed in 2018 found that the stock was badly overfished, overfishing was continuing, and the recruitment of young flounder into the population was at a time-series low.  It predicted that if fishing mortality continued at the then-current rate and recruitment didn’t improve, the spawning stock biomass would be depleted by 2046, and advised that total catch (landings plus dead discards) would have to be reduced by 31% just to end overfishing, and by 51% to reach the fishing mortality target.  But even if the latter reduction was achieved, it would not be sufficient to rebuild the stockhin the statutorily-required ten years.  A 72% reduction would be needed to achieve such timely rebuilding.

Soon after that stock assessment was released, North Carolina attempted to cut catch back far enough to allow the stock to rebuild within ten years.  However, recreational fishermen exceeded their annual quotas, and some have argued that trawling inside the state’s sounds has increased discard mortality. 

The stock remains overfished, and in the interim, the North Carolina Marine Fisheries Commission has opted to move forward with a management change that would allocate 50% of the catch to each of the commercial and recreational sectors, a big change to the current, 70% commercial/30% recreational allocation (which was already scheduled to go to 60% commercial/40% recreational in 2025).  But members of the commercial fishing industry oppose the quota change, and once again are claiming that there are more fish in the water than scientists believe.

This time, they’re not trying to argue that the flounder are somewhere far offshore, just that there are

“plenty of flounder out there,”

wherever "there" might be, and that

“We’re doing a good job [rebuilding the stock], we just don’t have the data to show it.”

But then, that’s always the problem.

Whether talking about New York false albacore that suddenly decided to take an Italian vacation, bluefish that went on safari, shrimp that departed their traditional waters to sojourn at some undetermined offshore spot, or southern flounder that are exhibiting new, if undocumented, levels of abundance, fishermen regularly assure us that such fish are there, even though they have no data to support their claims.

But without data, assurances are words that lack context, and mean next to nothing at all.

DO HEALTH ADVISORIES UNDERSERVE SEAFOOD CONSUMERS?

 

This morning, I learned that the Washington, D.C. Department of Energy and Environment issued a seafood health advisory, warning that

“people who eat fish caught in the District of Columbia’s Potomac and Anacostia Rivers need to consider eating less of those fish.”

The notice goes on to inform readers that

“[A] study analyzed the tissue of various species of fish for a variety of chemicals, including for the first time, per- and polyfluoroalkyl substances or PFAS.  The study also analyzed the samples for the chemicals tested in earlier studies such as PCBs, PAHs, metals, and organochlorine pesticides.  The study results showed that the majority of species tested contained PFAS.  PFAS are at times referred to as “forever chemicals” as they do not break down and tend to accumulate in the environment.  Long term exposure to PFAS can put individuals at risk for serious health problems such as cancer, liver problems, thyroid issues, birth defects, kidney disease, decreased immunity, and other health problems.  Polychlorinated biphenyls (PCBs) are also still a chemical of concern in fish tissue.”

The advisory notes that there are currently no federal standards for PFAS issued by the Environmental Protection Agency (and, perhaps understandably, fails to note that the EPA probably won’t issue any suchstandards so long as Lee Zeldin is in charge, and seeking to create an environment safe for big business, particularly if the current administration carries through with its plans to fire between 50% and 75% of the scientists employed by that agency’s Office of Research and Development), that fish consumption advice will be conformed to such standards should they ever be developed, and that in the meantime,

“Comparison of the study results with screening values for PFAS developed by the New Jersey Department of Environmental Protection showed that fewer servings of some species should be eaten.”

More particularly, the advisory recommended that no striped bass, carp, or largemouth bass caught in the named rivers should be eaten, but that people might safely consume three servings per month of blue catfish, or one serving per month of brown bullhead, channel catfish, gizzard shad, smallmouth bass, snakehead, sunfish, white perch, or yellow perch.

But then the advisory includes the somewhat anomalous disclaimer that

“This notice does not pertain to fish purchased from restaurants, fish vendors, or supermarkets,”

which immediately leads to the question:  “Why?”

Following up, I learned that Washington does not permit any commercial fishing to take place within its borders, so assuming that restaurants, markets, and such all purchase their fish from bona fide, law-abiding commercial fishermen, the advisory woudn’t apply to anything sold there.

But that led to a bigger question:  What about everywhere else?

As an angler fishing in New York waters, I received a copy of the New York State Freshwater Fishing 2025 Regulations Guide when I bought my fishing license last spring.  Despite the Guide’s freshwater orientation, it contains a section titled “2025 Health Advice for Eating Sportfish,” which notes that fish taken from various saltwater venues, including Jamaica Bay, Long Island Sound, the East River, the lower Hudson River (down to the southern tip of Manhattan), the Harlem River, New York Bay, Upper and Lower New York Bay, Newark Bay, Raritan Bay, and the Atlantic Ocean are all subject to cautionary health advisories.

The Guide then instructs me to follow a link to the New York State Health Department’s website to learn more details.  It turns out that, even in what we might assume are the state’s cleanest waters—places like the Peconic Bays, Gardiner’s Bay, Long Island Sound, and the Atlantic Ocean—there are contaminants in seafood that might be harmful to one’s health.  For example, women of childbearing age and children less than 15 years of age are advised not to eat weakfish more than 25 inches long, and to limit consumption of smaller weakfish, striped bass, bluefish, and eels from such waters to just one meal per month; everyone else can eat one meal per month of big weakfish, and four meals per month of the other listed fish.

But while that’s fine for anglers who happen to read the entire Guide, and then take the trouble to look up the Health Department’s website, where does it leave the consumer, who might buy the same fish, caught in the same waters, from a market or local restaurant.

After all, we all can recall going into a restaurant and seeing a warning on the menu, telling us that certain dishes might contain raw eggs, or uncooked or semi-cooked seafood or beef, and so might pose a threat to our health.  But have we ever gone into a restaurant and seen a similar warning about the possible risks of ordering the striped bass or the bluefish?

And markets offer no warnings at all.

Perhaps they should, because if eating a fish poses a threat to an angler and to that angler’s family, don’t they pose the same threat to consumers as well?

Some of the fish that we see in a market, or are served in a restaurant, often comes from out of state, where other health advisories may apply.  For example, the New York State Health Department advises that blue crabs from the Hudson River shouldn’t be eaten at all by women of childbearing age or children under the age of 15, while everyone else can safely consume four meals per month.  The Health Department further advises

“Don’t eat the soft ‘green stuff’ (mustard, tomalley, liver, or hepatopancreas) found in the body section of crabs and lobsters from any waters because cadmium, PCBs, and other contaminants concentrate there.  As contaminants are transferred to cooking liquid, you should also discard crab or lobster cooking liquid.”

But during the 2006 season, blue crabs were so large and abundant in the Hudson River that they were being shipped down to Maryland, the spiritual home of the blue crab gourmet, who undoubtedly consumed them believing them to be local, Chesapeake Bay fare. 

Did those crabs carry an appropriate warning? 

And how many might have contributed some of their cooking liquid to a Maryland blue crab bisque?

A Health Department warning doesn’t do too much good if the people eating the seafood that it mentions never had a chance to read it.

It’s not that the states don’t try to protect the consumer.  Here in New York, commercial striped bass fishing is not allowed in waters west of East Rockaway Inlet, or west of Wading River in Long Island Sound, where Hudson River fish, believed to carry larger loads of PCBs, are deemed to be the most common.  But those closures were based on research last performed in 2007, so New York is now engaged in a comprehensive new study, addressing striped bass caught throughout the state.  The Department of Environmental Conservation advises that

“Analytical and quality control work will be conducted by DEC’s Hale Creek Field Station laboratory and commercial analytical laboratories.  In addition to PCBs, contaminant analysis will include testing for mercury and per- and polyfluoroalkyl substances (PFAS) from all survey areas, as well as dioxins and furans in fish collected from the New York-New Jersey Harbor.  Samples from each fish will also provide data on size, age, sex, disease prevalence, population genetics, and diet.”

Since the New York study will involve bass caught all along the state’s coast, fish which may have been spawned in the Chesapeake Bay or the Delaware River, as well as in the Hudson, it will be interesting to see what it finds.  The bass studied might have multiple origins so, should contamination be found, there will be no way to cordon off a section of the state’s coast to harvest, and feel even moderately confident that bass caught elsewhere will be contaminant-free.  The problem could well originate out-of-state, and be carried to New York on the spring striped bass migration.

Thus, if contaminants are found—and particularly if those contaminants include PFAS, which seem to be ubiquitous—it will be interesting if the Health Department requires that an appropriate warning be displayed on menus and in seafood shops, or whether it will continue to provide advisories to anglers, while letting consumers bumble along in their current bubble of toxic ignorance.

We can hope that won’t be the case, for it would seem that a substance known to increase the chances of “cancer, liver problems, thyroid issues, birth defects, kidney disease, decreased immunity, and other health problems” is worth at least as much warning as a freshly-shucked oyster or a glass of egg nogg.

 

 

 

FORSAKING THE FUTURE OF NEW ENGLAND LOBSTER: PART II

 

Throughout most of the past twenty years, the Southern New England lobster stock steadily declined, and eventually collapsed, while fishery managers failed to take any meaningful action to address the problem. Yet, even as southern New England lobster abundance fell to new lows, Gulf of Maine lobster were becoming more abundant. The 2009 benchmark stock assessment found Gulf of Maine lobster abundance “at a record high,” and reported that landings had increased from 19,200 metric tons (mt) in 1990 to 37,300 mt by 2006. The 2015 benchmark assessment revealed that landings had since soared to new highs, peaking at 64,000 mt in 2013, and averaging 51,000 mt per year between 2008 and 2013. Gulf of Maine landings rose even higher, to 68,456 mt, in 2018; average annual landings rose as well, to 63,016 mt for the years 2014 through 2019.

But fisheries managers were beginning to notice some signs suggesting that all was not well.

A Technical Committee report issued in 2015 noted that while the abundance of adult Gulf of Maine lobsters was very high, there had been a decline in the number of older lobster larvae, as well as in the number of young-of-the-year lobster settling to the ocean bottom. The report advised that, should the Management Board become concerned about a possible decline in recruitment and wish to take some sort of action, “simulation calculations suggest that increasing the minimum carapace length has the potential to produce similar total landings by weight, with a smaller number of lobsters but at larger sizes. However, because lobsters would survive longer before capture, such changes in [minimum carapace length] could result in a significant increase in the numbers of mature lobsters and [spawning stock biomass], potentially adding resilience to the lobster population.”

The issue of increasing the minimum carapace length—effectively, increasing the minimum size—for Gulf of Maine lobster has been debated ever since.

To Head Off Stock Collapse

The Management Board got off to a good start, empaneling a Gulf of Maine/Georges Bank Lobster Subcommittee (Subcommittee) that, in 2017, produced a report that, among other things, urged that managers heed the lessons learned from the collapse of the Southern New England stock. Among those lessons was the warning to “Be proactive: Given the rapid decline in the [Southern New England] stock as well as the time needed to develop, comment on, and implement regulatory changes, initiating actions after landings have started to decline will be too late.”

A subsequent Subcommittee report advised that, as part of such proactive measures, “triggers be developed which require management action [in response to declining recruitment while adult lobsters are still] at a higher abundance. The nature of such triggers…as well as the management response…still needs to be developed; however, the Subcommittee recommends Board members initiate conversations with industry early in the…process to field potential goals and gain consensus…”

In accordance with that recommendation, at the Management Board’s August meeting, Patrick Keliher, a Maine fisheries manager, moved to “initiate an addendum to consider standardized management measures in the Gulf of Maine/Georges Bank stock. This addendum is intended to be a proactive management response to increase the resiliency of the stock.” His motion was seconded by New Hampshire’s Governor’s Appointee, Richie White, and was adopted by unanimous consent.

With the motion approved, David Borden, the Management Board Chair and Rhode Island’s Governor’s Appointee, observed that, “from a southern New England perspective, there are scary parallels that are going on” between the collapse of the Southern New England stock and what was beginning to occur in the Gulf of Maine. The members of the Management Board clearly understood the potential threat arising off the northern New England coast.

ASMFC staff began to develop the proactive management measures, which would become Addendum XXXII to Amendment 3 to the Interstate Fishery Management Plan (Addendum XXVII) for Atlantic Lobster, in early 2018, although development stalled as other issues were given higher priority by the Management Board.

But at the Management Board’s October 2020 meeting, Mr. Borden warned against delaying too long: “I would just simply note, state the obvious, that if we start an addendum today and it takes us two or three years to finish that addendum, which it usually does. Then we adopt it, and then it takes another two or three years for NOAA to do about federal waters. It’s a long period of time. If you factor in the point I made about southern New England, I think there is some urgency here to deal with some of the issues that the Board attempted to deal with before.”

Such warning was heeded at the February 2021 Management Board meeting. Mr. Keliher chose to “Move to re-initiate the [Plan Development Team] and Technical Committee work on the Gulf of Maine resiliency addendum. The addendum should focus on a trigger mechanism such that, upon reaching of the trigger, measures would be automatically implemented to improve the biological resiliency of the Gulf of Maine/Georges Bank stock.” Cheri Patterson, the New Hampshire fisheries manager, seconded the motion.

In support of his motion, Mr. Keliher argued that

I would hate to be in the situation that we were in with southern New England when the Board was continually trying to develop plans, and the stock continued to decline. We’re start to see some slipping now with the stock. As I said, we’ve seen a decrease in landings now a couple years in a row.

There are some issues with settlement as well as ventless trap surveys. I think it would be incredibly prudent, at this point in time, to have a very focused measure in place that deals with a reaction, an automatic reaction to ensure that we don’t fall into that trap, where it’s just too late, and we’re always trying to react.

Mr. White expressed his support for the motion, but also issued a caution:

I fully support this. It’s forward thinking. I think it’s something that could make a difference in the future. I think the problem will be, or the issue that we’ll have to figure out, is just as in southern New England, there was action taken, it was just way short of what the Technical Committee recommended.

It’s one thing to say we’re going to have and trigger and we’re going to take action, but will the action or can this be written such that the action will be what’s needed to correct the measures? That will be the difficult part, because there certainly will be push back from fishermen, to take less severe actions, conservation equivalency, you know do less than we really need to do. Anyway, that will be a challenge, but I fully support it. This is a smart thing to do.

Mr. White’s comments would prove to be prophetic.

The motion passed by unanimous consent.

Nearly a full year later, at the January 2022 Management Board meeting, the first complete draft of Addendum XXVII was presented and approved, but it was never released for public comment, as the Management Board instead chose to reconsider the document’s management options and their possible financial impact on lobster fishermen. One year later, at the Management Board’s January 2023 meeting, a modified Addendum XXVII was finally approved and released for public comment.

A Short-Term Perspective

As might be expected, the comments were overwhelmingly negative, with fishermen happy with their current landings, and unconcerned about what the future might bring if no management action was taken. While some saw a benefit in standardizing management measures across the various lobster conservation and management areas—of the 119 oral and written comments received on the topic, 46 (39%) supported at least some degree of standardization—proposals to adopt any sort of proactive management measure, that might prevent the sort of stock collapse that occurred in southern New England, were extremely unpopular, finding support in only 18 (14.5%) of the 124 comments addressing the issue, while 106 (85.5%) opposed any and all measures that might halt such collapse before it began, but might also reduce fishermen’s short-term incomes.

Those who opposed proactive management sounded a few common themes. Many feared that increasing the minimum size would put them at a competitive disadvantage, as smaller Canadian lobsters would continue to be shipped into the United States. Others argued solely from an economic standpoint, saying that they made a substantial investment in their permits, and pay high prices for fuel and bait, and so should not be expected to take a cut in their lobster-derived income.

Some fishermen didn’t believe the survey data. Some accepted the data, but argued that any trigger should be based on a longer, 10-year time series, rather than just the three years that Addendum XXVII would use.

There were fishermen who claimed that they were not observing any decline in lobster numbers, while others argued that if there was a decline, it was just part of a “natural cycle.” As one Massachusetts lobsterman noted, “my observations have seen periods of plenty and then periods of not so plenty. Cycles have come and go without regulations…Cycles in this fishery occur, Mother Nature sees to it.”

Many fishermen thought that managers would do better focusing their attention on the threat that wind turbines allegedly posed, with one Maine lobsterman saying, “I am really worried about the wind mills in the future and that will affect where everyone will fish. And there will be an impact on the lobsters from the sonic boom. Lobsters are very reactive to waves and noise in the water and if we blind the antennas, what will happen? We had the earthquake, the lobsters disappeared for a bit. It is going to be the same with the windmills.”

Yet, despite such comments, most Management Board members understood the need to act to avert a crisis, rather than merely responding to a crisis that has already occurred. They agreed that management action, in the form of an increased minimum size and, eventually, requiring larger escape vents in lobster traps, must be taken if data from standardized surveys indicated that the abundance of recruits (defined as lobsters with a carapace length measuring between 71 and 80 millimeters) fell by more than 35% below the average for the years 2016-2018. The final version of Addendum XXVII was adopted at the May 2023 Management Board meeting.

An Unpleasant Surprise

At that point, no one thought that the management trigger would be tripped very soon, but on October 2, 2023, the Technical Committee notified the Management Board that, once 2022 survey data was considered, recruit abundance had fallen 39.1% below the 2016-2018 average. The number of young lobsters recruiting into the stock had fallen so quickly that the trigger had been tripped less than six months after Addendum XXVII’s adoption.

Talks with Canada were still going on, in the hope that the problem of smaller Canadian lobsters entering the United States market might be resolved, and there was a real question as to whether enough of the gauges needed to determine whether lobsters met the new minimum size would be available. To provide some breathing room, the Management Board, at its October 2023 meeting, decided to delay implementation of the new minimum size until January 1, 2025. However, those issues, and in particular the questions surrounding Canadian imports, dragged on, leading the Management Board to further delay implementation, until July 1, 2025.

Fishermen oppose any new rules

As 2025 began, the fishermen most affected by Addendum XXVII demanded that their states go out of compliance with its provisions. In New Hampshire, Governor Kelly Ayotte wrote a letter to the ASMFC, in which she defiantly declared that, rather than adopt the larger minimum size required by Addendum XXVII, the state would maintain its current regulations. To emphasize her refusal to comply with the addendum, she also posted an image to the social media site X which featured the image of a lobster along with the legend, “COME AND TAKE IT.”

In Maine, hostile lobstermen beset fisheries managers in a series of hearings. The harangues from the audience grew so severe that the usually unflappable Patrick Keliher, who then served as the state’s Commissioner of Marine Resources, threw an obscenity back at the crowd. But, in the end, the unruly fishermen got what they wanted, as Maine’s governor agreed to withdraw the proposed rules, and go out of compliance with Addendum XXVII.

The two states’ recalcitrance set up a showdown with the ASMFC, which has the legal authority to refer such noncompliant states to the United States’ Secretary of Commerce, who in turn may shut down the affected fishery in such states’ waters until they adopt the ASMFC-mandated management measures.

But that showdown never happened.

Instead, realizing that there was a very good chance that the incoming Secretary of Commerce would not shut down Maine’s and New Hampshire’s lobster fishery over what was admittedly a proactive, precautionary measure, the Management Board backed down, and voted to initiate a new addendum to rescind the size and vent requirements included in Addendum XXVII.

It was something that most members of the Management Board did not want to do.

Mr. Keliher noted that when he made the motion to initiate Addendum XXVII more than seven years before, the addendum was “intended to be the first of its kind, to provide proactive protection.” He added, “If I was right and the industry was wrong, there could be many lobster boats for sale in coming years.”

Despite his belief that Addendum XXVII was needed, he acknowledged that conforming regulations would not have made it through Maine’s rulemaking process due to the opposition of some industry members, who were “very vocal to the point that some were completely out of line.” Still, he maintained that “Rolling back resiliency measures is the wrong thing to do. Absolutely the wrong thing to do. The Maine lobster industry is focused on the short term…We were unable to convince the industry that now is the time to act.”

New Hampshire’s Management Board members were also unafraid to put the responsibility for Addendum XXVII’s demise on the shoulders of the fishermen and related businesses. Cheri Patterson, a state fishery manager, admitted that their state couldn’t move forward “due to pushback we have been getting from the lobster industry.” Dennis Abbot, New Hampshire’s Legislative Proxy, observed that “Before we can get anything out of the lobster industry that’s helpful, we really need from them a buy-in that there is a problem.” And Douglas Grout, the Governor’s Appointee, told the industry that it was time for them to make the next move, saying, “I challenge the lobster industry in the three states to come up with appropriate new measures that will put more lobster eggs in the water. The downturn in the Gulf of Maine lobster population has just begun.”

Dan McKiernan, the Massachusetts fishery manager, was equally blunt, saying, “I ask the fishing industry to stop the nonsense,” of baselessly criticizing the lobster science. He noted that the data underlying Addendum XXVII’s trigger was very accurate, and that lobster landings closely track survey indices.

When asked what might be acceptable to Maine’s lobster industry, Mr. Kelliher responded that “What they will accept is unknown right now…The Maine industry can’t expect to solve their problems on the backs of others…There is a very vocal group that is saying that we don’t need to do anything right now, and they are wrong. They are dead wrong. We need to do something that helps stabilize this. It will be a sad friggin’ day if we don’t do something.”

Yet, in the end, nothing was done. An addendum nearly eight years in the making will be undone. And unless something unexpected happens, Gulf of Maine lobster recruitment will continue to fall.

Perhaps the stock will collapse, as it did farther south. Perhaps it will not. That’s something that we can’t currently know.

But one thing is nearly certain.

Should the lessons provided by Southern New England lobster go unlearned, and a fishery now worth over $500,000,000 falls into ruin, the people who blocked implementation of Addendum XXVII and destroyed their own future will surely blame everyone—except themselves.

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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/

 

SUPREME COURT REBUFFS CHALLENGE TO STRIPED BASS ADDENDUM II

 

On March 4, the Delmarva Fisheries Association, Inc., the Maryland Charter Boat Association, Inc.,  and two related individuals filed an emergency application for a temporary injunction that would halt the implementation of the fishery management measures contained in the Atlantic States Marine Fisheries Commission’s Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass with the United States Supreme Court.

Last Tuesday, exactly one week after the application was filed, the petitioners’ arguments were rejected by the Court.

For the plaintiffs, the Supreme Court’s rebuff represented just one more court that refused to accept their arguments that Addendum II

“imposed drastic, unwarranted and illegal limitations on commercial and recreational fishing for Atlantic Striped Bass in the coastal Atlantic Ocean and, in particular, the Chesapeake Bay and its tributaries.”

It all began about a year ago, on March 7, 2024, when the plaintiffs initiated a legal action in the United States District Court for the District of Maryland, seeking to enjoin the application of Addendum II’s management measures and requesting that the court issue a temporary injunction to that effect to preserve the status quo until the matter could be fully litigated.  Their complaint contained a mishmash of dubious Constitutional claims, misstatements of federal fisheries law, and mischaracterizations of striped bass biology and management that were notable only for their inaccuracy.

That complaint apparently didn’t impress the trial court judge for, on April 22, 2024, he issued a decision denying the temporary injunction, in which he noted that,

“To determine whether a preliminary injunction is appropriate, this Court follows the test set forth by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., which requires a showing that:

(1)   the movant is likely to succeed on the merits;

(2)   the movant is likely to suffer irreparable harm absent preliminary relief;

(3)   the balance of equities favors the movant; and

(4)   an injunction is in the public interest.  [citation omitted]”

The trial court went on to find that

“Even if Plaintiffs have standing to sue, they are still unlikely to succeed on the merits of their claims.  Plaintiffs do not plausibly state a takings claim or deprivation of any other federal constitutional right, as Addendum II does not physically appropriate Plaintiffs’ property, nor does it regulate their fishing vessels or gear.  The posture of the addendum and the unique structure of the Commission preclude a finding that addendum constitutes a regulatory taking.  Addendum II was issued after a thorough deliberative process in which the State of Maryland participated, and Plaintiffs had notice and opportunity to comment on its measures.  Because the addendum is not subject to review under the Administrative Procedures Act, Plaintiffs allegations as to the addendum being arbitrary and capricious are inapposite.  Neither does Section 1983 [of Title 42 of the United States Code, dealing with civil rights violations] provide an avenue for Plaintiffs to challenge the addendum, as the Commission is not a ‘person’ within the meaning of the statute.  It does not act under ‘color of state law,’ and Congress did not intend to create a private remedy authorizing private parties to bring federal court actions challenging the Commission’s fishery management decisions.  [citations omitted]”

Since the trial court was not convinced that the Plaintiffs were likely to prevail on the merits of the lawsuit, the preliminary injunction could not be issued.

Plaintiffs appealed that decision to the United States Court of Appeals for the 4^th Circuit, but that only worsened their situation.  The 4^th Circuit not only failed to reverse the trial court’s denial of Plaintiffs’ motion for a preliminary injunction, but also found that Plaintiffs lacked the standing necessary to bring the lawsuit in the first place, writing

“We conclude that Plaintiffs lack standing because they are regulated by Maryland, not the Commission, and Plaintiffs made no allegation that enjoining the Commission’s recommended plan would likely cause Maryland to rescind its own regulations.  And even if they had, they would have needed to bolster that allegation with specific reasons supporting it, as Maryland adopted stricter measures than the plan called for.

“Because Plaintiffs lack standing to pursue an injunction of the striped bass plan—which is the only relief they seek—we remand with instructions to dismiss the case.”

Thus, the appeal to the 4^th Circuit, which at best might have resulted in a temporary injunction being issued, led to the Plaintiffs' entire case being thrown out of court.  And when they petitioned the Supreme Court for the emergency issuance of a temporary injunction, their efforts resulted in just one more failure.

At that point, most people would have recognized that their efforts were likely doomed to failure, and recognized that further litigation would almost assuredly be both costly and futile.  However, it seems that the unsuccessful plaintiffs are willing to throw good money after bad, and will continue their campaign against Addendum II.  A recent article in the Star-Democrat, a news outlet serving the Maryland region, quoted Capt. Robert Newberry, the Chairman of the Delmarva Fisheries Association, as saying,

“It’s not good that we were denied the hearing in front of the Supreme Court, but this is far from over.  We are in it to win it!  We will be announcing our next move within a week.”

It’s not clear what that “next move” will be.

Although I don’t litigate matters in the federal courts, and so am not fully familiar with the Federal Rules of Civil Procedure, it does not appear that the plaintiffs could merely seek to amend their original complaint to include the allegations described in the 4^th Circuit’s opinion in order to set aside the dismissal, as those rules specify that

“Unless the dismissal order states otherwise, [an involuntary dismissal], and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.”

That doesn’t necessarily mean that the now-dismissed action is dead.

The 4^th Circuit handed down its decision on February 5 of this year, so the plaintiffs could theoretically appeal that decision—most particularly, the finding that the plaintiffs lacked standing—to the U.S. Supreme Court, as the time to do so has not yet elapsed.  In order bring an appeal, they must petition the Supreme Court for a writ of certiorari, since appeals to the Supreme Court are not "as of right."  Such petitions are not often granted.  Out of more than 7,000 petitions for certiorari filed each year, only 100 to 150 are typically granted, and those typically involve cases of national significance, those which would resolve conflicting decisions handed down by two or more federal courts of appeals, and/or those that have significant precedential value. 

If the plaintiffs choose to seek certiorari, they must convince four Supreme Court justices that the case should be heard.  That isn’t an impossible task.  Given the current makeup of the Court, and the justices’ legal and political philosophies, it’s not impossible that the ASMFC’s seeming lack of accountability for its fisheries management decisions, and its impact on the states’ fisheries regulations, the matter could catch the eye of someone, most likely either Justice Thomas and/or Alito, and if they were joined by two others, perhaps Justices Gorsuch and Kavanaugh, the matter would get a hearing.

Yet, even though that possibility exists, the odds are stacked against certiorari being granted.  There are just too many other, and seemingly more significant, cases competing for the Court's time.

And it’s probably too late for plaintiffs to challenge Maryland's regulations implementing Addendum II, as they would have been issued over a year ago, while the statute of limitations for challenging agency actions appears to require such challenges to be made within 30 days after the rule was adopted.

So while the door to judicial relief doesn’t seem to be completely closed, the chances of such relief being granted are surpassingly slim.

It’s also possible that the now-defeated plaintiffs will abandon the courts and seek a political solution.  That might include efforts to pass legislation at the state or the federal level which would, in some way, negate the effects of Addendum II, at least in the Maryland portion of the Chesapeake Bay, although, once again, the odds of that happening are probably very slim.  

But Capt. Newberry also complained that

“It is extremely perturbing that Governor Moore and Attorney General Brown turned their backs on us.  They are willing to spend millions of taxpayer dollars against alleged constitutional violations by President Trump, but they ignore the constitutional violations affecting the seafood industry.”

That language that could be understood to suggest that he might be seeking someone in the federal bureaucracy willing to take up his cause.  A federal bureaucrat’s ability to compel a state, or an interstate compact like the ASMFC, to abandon the management measures in question would be extremely limited although, given the administration’s recent actions, a threat to cut off federal funding might be a real possibility.

If Capt. Newberry’s comments prove true, we’ll see the next step in the Addendum II saga unveiled next week.  For the sake of the striped bass stock, and the sake of rational fisheries management, we can only hope that his future efforts will prove as futile as those of the past.

 

FORSAKING THE FUTURE OF NEW ENGLAND LOBSTER--PART I

 

Two decades ago, the future of the Southern New England lobster stock, which ranges from Cape Cod south to Virginia or so, began to look bleak. As early as 2006, a stock assessment noted that “stock abundance is relatively low compared to the 20-year time series and fishing mortality is relatively high; further restrictions are warranted. The [stock assessment] Panel believes the declining trend in population abundance is well established and warrants a reduction in fishing mortality.”

The stock assessment went on to advise that “The Panel recognizes that it would only take a sequence of two to three years of poor recruitment to collapse any component of the lobster resource, and the appearance of extremely low recruitment in recent times in some areas is a cause for concern if not alarm.”

Lobster fishermen did not embrace the stock assessment’s recommendations. Instead of acknowledging the need to reduce landings, the fishermen sought to blame the decline in lobster numbers on natural mortality rather than fishing. A 2006 report from the Atlantic States Marine Fisheries Commission’s (ASMFC) American Lobster Advisory Panel (Advisory Panel) noted that Advisory Panel members were “concerned that the stock assessment did not take into account the increases in natural mortality…[Advisory Panel] members were also concerned that the assessment does not take into account predation of lobsters by striped bass, cod, and dogfish…”

In time, a pattern emerged. Stock assessments would make ominous warnings. Fishermen would ignore them.

In 2009, a benchmark stock assessment advised that “Current abundance of the [Southern New England] stock is the lowest observed since the 1980s…Recruitment has remained low in [Southern New England] since 1998. Given current low levels of spawning stock biomass and poor recruitment further restrictions are warranted.” Shortly thereafter, the ASMFC’s American Lobster Technical Committee (Technical Committee) opined that the Southern New England stock “will need a rebuilding strategy to attempt to regain its former recruitment productivity.”

In 2010, the Technical Committee went a step further, issuing a report titled, “Recruitment Failure in The Southern New England Lobster Stock,” which asserted that the stock was “critically depleted” and “experiencing recruitment failure,” and that “it is this recruitment failure in the [the Southern New England stock] that is preventing the stock from rebuilding.”

The report suggested “that the distribution of spawning females has shifted away from inshore [Southern New England stock] areas into deeper water in recent years. This shift may impact larval supply to inshore nursery grounds.” It cited a warming ocean as the primary reason for the shift of females to deeper waters, and noted that “continued fishing pressure reduces the stock’s potential to rebuild, even though overfishing is currently not occurring.” Because the problem was so severe, the Technical Committee recommended that a 5-year moratorium be imposed on the Southern New England lobster fishery.

In doing so, it acknowledged “the severity of this recommendation and understands the catastrophic effects on the fishery participants, support industries, and coastal communities.” But it also stated that “This recommendation provides the maximum likelihood to rebuild the stock in the foreseeable future to an abundance level that can support a sustainable long-term fishery.”

As one might expect, the lobster fishermen rejected the findings of the Technical Committee’s report.

At the May 2010 meeting of the ASMFC’s American Lobster Management Board (Management Board), William McElroy, a lobster fisherman from Rhode Island, argued that “if you chose a five-year fishery moratorium to keep the fishery from collapsing, you’ve kind of jumped the shark and guaranteed that the fishery collapses without ever giving the opportunity to collapse, because there would be no fishery left after five years. There would be no infrastructure.”

The Management Board, wanting to fully explore the issue, called a special meeting for July 2010, where Joseph Horvath, a lobster fisherman from New Jersey, challenged the Technical Committee’s findings, arguing that “I don’t know how we all got painted into this picture of doom and gloom…I’ve been fishing for 40 years…I don’t see any crash of any fishery. We’re doing well. We had a good recruitment…Our lobsters that we catch, we’re doing fine. We have plenty of recruitment…”

Steven Smith, a Rhode Island lobster fisherman, also disagreed with the Technical Committee, saying “The area I’m fishing right now, there is a large recruitment of lobsters,” while Connecticut lobster fisherman Bart Mansey asserted that “What we have now, there is no disaster. The board is making a disaster…We’re witnessing and catch more lobsters…We’re actually catching more and seeing more lobsters.”

In response to such sentiments, the Management Board delayed taking any action that would reduce landings of Southern New England lobster, much less impose a moratorium on the fishery. In the end, rather than place any cap on lobster harvest, the Management Board decided to try to reduce fishing effort enough to achieve a 10 percent reduction in landings. By that time, the Technical Committee’s recommended moratorium had long been forgotten.

The most recent stock assessment found that nothing had changed, advising that “The [Southern New England] stock is in poor condition…The assessment recommends significant management action to provide the best chance of stabilizing or improving abundance and reproductive capacity of the [Southern New England] stock.”

Whether such action will ever be taken remains to be seen for, even though management inaction may have doomed the Southern New England lobster stock, there is no assurance that fishery managers will change their ways and finally act to address a lobster stock collapse, whether it occurs in southern New England or elsewhere along the coast.

-----

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/

PROBLEMS WITH PLANKTON

 

When people consider the things that can threaten our fisheries, they typically think of the obvious problems, like overfishing, predation, habitat loss, or a decline in forage.

Sometimes, they also consider the sort of things that don’t necessarily lead to population declines, but can make fishing harder or move fish elsewhere, like warming waters.

But more and more, as scientists look at the problems besetting various fisheries, they realize that the issues often lie at the very base of things, that is, with the tiny plants and animals, the plankton that lie at the very bottom of the food web, and hold the whole thing together.

And it seems that plankton has been becoming more and more problematic in the last decade or so.

A recent article in the New York Times noted that the distribution of phytoplankton, the single-celled plants that convert sunlight into the makings of life, has changed in recent years.  Satellite surveys of plankton abundance have found that there is less phytoplankton in the open ocean than there used to be, but more close to shore, particularly in more northerly regions, where a warming ocean seems to be creating conditions that favor plankton growth.

The increase in inshore phytoplankton has certainly been apparent in my local waters south of Long Island, New York, particularly to those of us who fish for tuna, shark, and other pelagic fishes.  Fishing for such big fish of the open sea is often called “blue water fishing,” because once one gets away from the shoreline—a distance that, depending on place and time, might be anywhere from a mile to 30 miles or so off the beach—the greenish, nutrient-laden inshore waters give way to blue water so clear that we could sometimes see the outlines of a hooked fish when it was still 50 or 60 feet beneath the boat.

I recall drifting near the Yankee wreck, in 20 fathoms of water, on an early September day, and watching a mako come in to a bait that was drifting at least 40 feet under the surface, and seeing it all as clearly as I might have watched someone swim beneath the surface of a backyard swimming pool.  Although green water sometimes extended farther from shore, it was unusual not to have blue water by the time a boat crossed the 30-fathom line.

Today, that’s no longer the case.  Often, these days, when I fish for sharks in 20 or 25 fathoms south of Long Island, I’ll have an angler fight a fish up to the boat, and we’re still not able to see it when my gloved hands get their first grip on the 15-foot wire leader that’s attached to the hook.  Last July, I was 40 miles from the inlet and still fishing in murk, finding bluefish instead of the bluefin tuna that I was seeking.

The green, plankton-filled water has certainly had a negative impact on fishing for billfish and the various tunas, fish which, as sight feeders, generally need clear blue water to locate and run down their prey.  Although there are still quite a few tuna around, we’re running ever farther, trying to find that blue water that holds them.

But in those cases, phytoplankton are merely an inconvenience that makes fish harder to find.  In other cases, they become a real risk to the health of both people and fish stocks.  Off the southwest Florida coast, so-called “red tides—blooms of harmful phytoplankton—are a regular enough occurrence that the state maintains a web page advising people of “Red Tide Current Status,” which advises viewers of where fish kills take place, and also notes that

“Respiratory irritation suspected to be related to red tide was reported over the past week in Southwest Florida (Pinellas, Manatee and Sarasota counties,”

which is probably not the news that tourists want to see as they plan their winter vacations.  Still, the Visit Florida website dutifully informs potential visitors that

“A red tide is a higher-than-normal concentration of a microscopic alga (plant-like organism).  In Florida, the organism that causes most red tides is Karenia brevis (K. brevis).  This organism produces a toxin that can affect the central nervous system of fish.  At high concentrations (called a bloom), the organisms may discolor the water a red or brown hue.  The water can even remain its normal color during a bloom…

“Some people may experience respiratory irritation (coughing, sneezing, and tearing) when the red tide organism is present along a coast and winds blow aerosolized toxins ashore…

“If you experience respiratory irritation, wear a mask, such as a painter’s mask, that covers the nose and mouth to filter out marine aerosol particles that carry the red tide toxins…Always seek medical care if your symptoms worsen.  For your home or motel room, keep your windows closed, the A/C on and check/change the unit’s filter.”

That might not sound like an enjoyable vacation, but things are even worse for the fish, which live in the region year-round without the benefits of windows or air conditioning that might combat at least a fraction of the red tide toxins.  And things aren’t likely to get better at any time soon.  A 2022 article in Inside Climate News noted that

“A task force organized by Florida Gov. Ron DeSantis to address the state’s algal bloom crisis concluded in a recent report that ‘without hard work and careful planning’ adverse human health impacts and widespread wildlife mortality would most likely ‘worsen’ because of climate change and the state’s growing population.”

While phytoplankton can have undesirable impacts when it becomes too abundant, zooplankton can have negative impacts on wildlife when it becomes too scarce, or when its abundance shifts to a time when it is no longer available to the creatures that need it.

I first learned of that problem a decade ago, when a paper titled “Slow adaptation in the face of rapid warming leads to collapse of the Gulf of Maine cod fishery” appeared in the journal Science.  The thrust of the paper was that as waters warmed in the Gulf of Maine, the number of cod reaching maturity declined.  The researchers raised the possibility that the increasing water temperatures have led to a decline in the abundance of zooplankton that larval cod depend on for food.

One important element of the missing Gulf of Maine zooplankton seems to be a copepod—a type of tiny crustacean—known as Calanus finmarchicus.  The New York Times reported that

“Calanus hibernate through winter, hiding from predators in the dim light of deeper waters…

“Dr. [David] Fields [a zooplankton ecologist] calls the layer of sleeping Calanus the ocean’s fat layer, a valuable resource for other life.  ‘That’s the whole reason the Gulf of Maine runs the way it does, because of that beautiful fat layer,’ he said.”

The Times also noted that

“specimens [of Calanus finmarchicus] had big oil sacs, full of the calorie-rich lipids that fish and right whales seek out.  In experimental studies, Dr. Fields and his colleagues have found that as the temperature rises, Calanus get smaller and have less fat relative to their body size.”

The decline of Calanus copepods in the Gulf of Maine may also be having a negative impact on the Gulf of Maine stock of American lobster.  While adult lobster remain abundant in the region, since 2012, biologists have noted a marked decline in the numbers of younger individuals.  In particular, they have been noting a dearth of lobster at the stage where they cease being free-floating larvae and settle on the ocean floor.

Some biologists suspect that a shortage of Calanus finmarchicus is again at the root of the problem. 

Historically, Gulf of Maine lobster began hatching in early June, with the peak of the hatch occurring a month or so later.  A new generation of Calanus finmarchicus appeared in April and were abundant into early fall.  The timing was perfect for the young-of-the-year lobster, which could feed on the copepods until the lobsters were ready to settle to the bottom of the sea.  

But warming waters have changed the timing of both events.  Now, the lobster are hatching earlier, while the copepods are spawning at the same time, but the copepod population’s annual decline begins much sooner, so that, but the time the young lobsters need them, there are about 70 percent fewer copepods available than there were three decades ago.  Lacking their once-reliable food source, fewer larval lobsters are surviving to settle on the bottom, a result that can only lead to fewer adult lobster in the not-too-distant future.

And such problems aren’t limited to the Gulf of Maine. 

In Maryland, striped bass have experienced their sixth consecutive year of poor reproduction.  While biologists have, for a while, associated poor striped bass spawns with unfavorable environmental conditions, the availability of food, in the form of zooplankton, is now believed to play an important role. 

The Maryland Department of Natural Resources has noted that

“One theory for low spawning success is known as the ‘mismatch hypothesis.’ This suggests that the food source—blooms of cold-water zooplankton—are not matching up with the first time larval striped bass need to eat, as winter temperatures in the Chesapeake increase.  If the zooplankton blooms don’t align with the first-feeding larvae, feeding success is too low for good survival.”

To make things a little more complicated, it’s not clear that any sort of zooplankton will do.  A biologist who has decades of experience working with Maryland striped bass recently stated that one of his former colleagues believed that, of all the zooplankton present in the Chesapeake Bay, the juvenile striped bass focused their feeding on only two or three species.  It’s not clear that the fish would shift their focus if the preferred species were not available.

So yes, to perpetuate a cliché, small things can sometimes make a big difference.  And the presence or absence of plankton—among the smallest forms of life in the sea—can have a very big impact on the health of marine resources all along the coast.