WILL INDUSTRY-SPONSORED RESEARCH STIFLE MENHADEN MANAGEMENT?

On the afternoon of May 9, the Atlantic States Marine Fisheries Commission’s Atlantic Menhaden Management Board will meet to address a number of matters.  Two are particularly important.

The Management Board will receive an update on Draft Amendment 3 to the Interstate Fishery Plan for Atlantic Menhaden.  That’s an important action, because the Draft Amendment is expected to include ecological reference points that will allow managers to manage menhaden for their value as a forage fish, a big step away from the single-species management practiced today, which is focused only on sustainable harvest.  Such a management approach represents an big step forward that, if implemented, could potentially be emulated for other forage species managed by ASMFC and by the regional fishery management councils, including but not limited to river herring, Atlantic herring and Atlantic mackerel.

The Management Board will also “Consider Hilborn et. al. 2017 Paper for Technical Review.”

If the conclusions of such paper are ultimately accepted as the best available science, something that would only happen after review by the ASMFC’s Atlantic Menhaden Technical Committee and further action by the Management Board, perhaps at its August meeting, the efforts to establish ecological reference points will probably come to a screeching halt, and menhaden will continue to be managed as a commercial commodity.

Since the Hilborn paper could mark a watershed in the management of Atlantic menhaden, and perhaps forage fish generally, a little background is in order.

The best place to start is probably with an organization called IFFO (2012) Ltd., organized under the laws of England, which refers to itself as “The Marine Ingredients Organization.”  According to its website,

“IFFO is the international ‘not-for-profit’ organization that represents and promotes the fishmeal, fish oil and wider marine ingredients industry worldwide.  We are globally respected and regularly represent the industry at international forums, as well as holding observer status at the UN Food and Agriculture Organization (FAO) and the EU Commission and Parliament.

“Acting on behalf of the fishmeal and fish oil producers and their trade associates, IFFO works to strengthen the global standing of the industry, while supporting responsible supply worldwide.  With a network of members reaching across 55 countries, our members account for over 50% of world production and 75% of the fishmeal and fish oil traded worldwide.  While these products are the core of our industry, recent years have seen a widening to include marine algae cultivation and the production of meal and oil from krill.  Our members include producers, traders, feed companies, edible oil refiners, retailers, financial institutions, governmental and non-governmental organizations.”

In other words, if you’re a player in the business of hoovering up various forage species and turning them into chicken feed, anywhere in the world, IFFO are your kind of folks.

It would hardly be surprising to find that IFFO wasn’t pleased with the report Little Fish, Big Impact, prepared by the Lenfest Forage Fish Task Force about five years ago.  

The Task Force was composed of 13 PhD level biologists, from five different nations, who came to together

“to provide practical, science-based advice for the management of forage fish because of these species’ crucial role in marine ecosystems and because of the need for an ecosystem-based approach to fisheries management,”

And recommended that

“Because many animals and humans depend on forage fish, it is important to manage fisheries that target them in a precautionary manner that accounts for their high degree of variability and importance to the ecosystem.”

That couldn't have made the "marine ingredients" folks very happy.

It’s also not surprising the Omega Protein Corporation, which purse seined over 300,000,000 (yes, 300 million) pounds of menhaden in 2015, which were “reduced” into fish meal and other industrial products, is a member of IFFO. 

Now, here is where things get interesting.

According to IFFO’s website,

“IFFO was recently approached by Professor Ray Hilborn of the University of Washington regarding a project to develop the scientific knowledge of forage fish stocks.  The long term health and effective management of these stocks is essential to our industry and, after considering the project objectives, the IFFO Board has agreed to provide some funding…We are now asking members to confirm any particular fish stocks of interest that should be investigated by the project team.  Please also advise the names and contact details of any fishery scientists with knowledge of those stocks who may be of assistance. 

“IFFO, the trade organization for the global marine ingredients industry, is delighted to see a research project launched by the University of Washington, led by Professor Roy Hilborn, to refine and expand some of the initial work already done on the management of Forage Fish stocks.  In response to a call to support the project, IFFO has agreed to provide information to support the research and financial assistance towards the costs incurred.   [emphasis added]”

It turns out that the paper prepared by Dr. Hilborn and his team, “When does fishing forage species affect their predators?”, only addressed seven forage species, Pacific chub mackerel, Pacific hake, Pacific sardine, Atlantic herring, Atlantic mackerel, Atlantic menhaden and Gulf menhaden, all of which are important to the “marine ingredients” industry.  

The primary harvester of both Atlantic menhaden and Gulf menhaden is, not coincidentally, Omega Protein.

Predictably, the industry-funded research team

“found little evidence that the abundance of individual species of forage fish was positively related to the per capita rate of change in their predator populations.”

It's reminiscent of the tobacco industry-funded research that found no clear connection between cigarettes and lung cancer.  But it is perhaps more relevant to remember a comment by University of California researcher Elisa K. Tong, who noted that

“It’s not just about fighting smoke-free regulations.  Our analysis of the [internal tobacco industry] documents indicates an industry that also wants to influence the debate about how ‘reduced-harm’ tobacco products should be evaluated.”

Putting that into a fisheries context, we have an industry that was somewhat set back on its heels by the Lenfest report, and needed a way to find a way to influence the forage fish management debate at a fundamental level.  Seen in that context, industry funding of the Hilborn report was a no-brainer.

Dr. Hilborn falls out of the current mainstream of fisheries scientists.  In 2006, he published a paper entitled “Faith Based Fisheries”, in which he criticized much of the work then being published, which generally supported precautionary management and ecosystem-based management measures.  He wrote that

“before we congratulate ourselves too much for the triumph of the scientific method over belief, I suggest the fisheries community needs to look at itself and question whether there is not a within our own field [sic] a strong movement of faith-based acceptance of ideas, and a search for data that support those ideas, rather than critical and skeptical analysis of the evidence.

“This faith-based fisheries movement has emerged in the last decade, and it threatens the very heart of the scientific process—peer review and publication in the top journals.  Two journals with the highest profile, Science and Nature, clearly publish articles on fisheries not for their scientific merit, but for their publicity value.  Beginning in at least 1993 with an article I co-authored…Science and Nature have published a long string of papers on the decline and collapse of fisheries that have attracted considerable public attention, and occasionally gaining coverage in the New York Times and the Washington Post.  I assert that the peer review process has now totally failed and many of those papers are being published only because the editors and selected reviewers believe in the message, or because of their potential newsworthiness…”

He then goes on to make specific criticisms of papers that, at the time, had recently been published.

I won’t, and from a purely academic perspective, probably can’t, make an informed comment on whether any of his criticism of the journals or the peer review process is justified.  However, anyone looking for flawed data in a peer-reviewed paper, that perhaps influenced its results, need go no farther than Dr. Hilborn’s teams’ recent forage fish study.

Again, I lack the knowledge to question all of the information therein, but I did take a look at the data related to fish that I’m personally familiar with, and noticed that a few things seem askew.

For example, there are four graphs (numbers 42-45), which purport to show the relationship between spiny dogfish and four forage fish species.  The line showing the abundance of spiny dogfish is the same in all four charts, which compare it with the abundance of Atlantic menhaden, Atlantic herring, Pacific hake and Atlantic mackerel.

When I saw that for the first time, I felt as if I was a very young child again, playing the picture-puzzle game “Which one doesn’t belong?”  

While it was perfectly understandable that the abundance curve for spiny dogfish would be the same for all three Atlantic forage species, it is difficult to believe that the spiny dogfish that regularly fed on Pacific hake would follow an identical pattern of abundance and decline over the many years of data.  A far more likely explanation was that the graph was either applying Atlantic abundance data to the Pacific stock of dogfish, or vice versa. 

In other words, some of that graphed data just had to be wrong.

And then, there was the paper’s reliance on research that supposedly showed that

“the mean size of Atlantic menhaden (Brevoortia tyrannus) eaten by striped bass (Morone saxatilis) in Massachusetts was 8.4 cm [or, less than 3 ½ inches]”

which apparently led to a chart suggesting that striped bass didn’t feed on menhaden more than 20 cm, or about 8 inches, long.

The paper then used that data to suggest that, since the mean size of the menhaden taken in the commercial fishery was 28 cm,

“the fishery harvests only those individuals that have survived and grown large enough to escape most of their predators.”

Well…

I've been a participant in the striped bass fishery for about fifty years, and can say from five decades of observation that, while one study might say that striped bass only eat little fish (perhaps it was a study of little striped bass, or big menhaden were scarce at the relevant place and time), Dr. Hillborn et. al. definitely should have obtained a little more information before making such a sweeping conclusion.

In a few weeks, big schools of Atlantic menhaden will start moving along the Long Island coast, and take up temporary residence off my home waters around Fire Island Inlet.  Few of those menhaden will be as small as 8 inches long, and all will be larger than 3 ½ inches.  Even so, those menhaden will be targeted and harassed by pods of striped bass, which will avidly spend their nights and days sucking down foot-long (more than 30 cm) fish.  

Bluefish, weakfish and a host of sharks, ranging from small sandbars to quarter-ton common threshers, will be eating those big menhaden, too.

At 12 inches/30 cm, menhaden have most certainly not “grown large enough to escape most of their predators.”  A two-pound bluefish will still chop off their tails…

So some of the data in the Hilborn team’s paper was definitely a little off. 

And the paper itself seems to reflect a sort of bias, although a bias that appears to be the antithesis of what Dr. Hilborn wrote in “Faith Based Fisheries.”  After presenting conclusions that reflected the data used in the study, the paper went beyond the data to note

“It must be remembered that small pelagic fish stocks are a highly important part of the human food supply, providing not only calories and protein, but micronutrients, both through direct human consumption and the use of small pelagics as food in aquaculture.  Some of the largest potential increases in capture fisheries production would be possible by fishing low trophic levels much harder than currently.  While fishing low trophic levels harder may reduce the abundance of higher level predators, that cost should be weighed against the environmental cost of increasing food production on other ways…”

Such a statement seems to have little direct bearing on the predator/forage relationship that the paper was supposed to examine.  It may even contradict the paper's findings a bit, as it admits that “fishing low trophic levels harder may reduce the abundance of higher level predators,” while the paper proposed claimed that the researchers “found little evidence that the abundance of individual species of forage fish was positively related to the per capita rate of change in their predator populations.”

But it does seem to reflect a certain faith-based belief that forage fish harvest is a good thing.

There can be little doubt that it pleased the industry sponsors.

And no doubt at all that industry-funded research can, at times, get out of hand.

For a long time, such research assured us that Roundup, Monsanto’s flagship weed killer, is perfectly safe.  Some non-industry research suggests that it may cause cancers, including non-Hodgkins’ lymphoma.  Right now, no one knows for sure.

According to the New York Times, company documents unsealed pursuant to a California lawsuit included an e-mail in which

“William F. Heydens, a Monsanto executive, told other company officials that they could ghostwrite research on glyophosphate by hiring academics to put their names on papers that were actually written by Monsanto.  ‘We would be keeping the cost down by us doing the writing and they would just edit & sign their names so to speak,’   Mr. Heydens wrote, citing a previous instance in which he had said the company had done this.”

Such action by Monsanto, if it occurred, would be far, far beyond acceptable norms, even for industry-supported projects.  No one is suggesting that the Hilborn team’s paper is the result of anything except an analysis of the relevant data.  Instead, as noted by Dr. Carl Safina in “Ocean Views,” a blog of National Geographic,

“Everyone uses data to back their claims.  But what one is looking for affects what one looks at.  Fisheries scientists like Hilborn often look for how many fish can be caught, while fish- and ocean ecologists look for how many fish must be left in the sea, or how to get them back.  We now know that while some deeply depleted fish have been unable to rebuild, many others have indeed rebuilt when fishing pressure is lessened.

“…Ray Hilborn is a darling of the fishing industry and a hero to extraction-oriented fisheries scientists because he thinks like they do, seems to excuse excesses, and seems to give them permission to do what they want to do: catch fish and not worry too much about it.”

“When does forage fish fishing affect their predators?” should be read with those thoughts in mind.

GRASSROOTS CONSERVATION: STILL ALIVE AND WELL

For more than seventeen years, I was very actively involved in a big, national grassroots conservation organization.  For most of those years, it was one of the finest times of my life.

I worked with paid staff, and with a host of volunteers, all dedicated to the concept that “The fish come first.”  I worked on some committees, and ended up chairing one.  I sat on the national board.   And most importantly of all, I learned how the fishery management process worked, and how to effect change.

All decisions we made were ultimately put to a vote of the board’s volunteers.  There’s no question that the paid staff steered us more than a bit, but in the end all decisions were in volunteers’ hands.  No policy was adopted without their approval.  All press releases were subject to volunteer oversight.  Any proposed legislative action had to pass volunteer review before action was taken.

Perhaps as a result of all those things, the organization was able to influence policy, on the state and national level, relating to everything from striped bass to blue marlin.

Then, in later years, things changed.

Some key leaders grew ill and passed away, leaving a huge vacuum that was never completely filled.  Chairmanship of one committee thus shifted from a charismatic and cynically knowledgeable leader to someone who was, at heart, a good man, but lacked essential moral courage, and was more interested in the organization looking good on editorial pages and Internet chat boards than doing good in the regulatory and legislative arena.

Such attitude became contagious.  Instead of leading in the field of fisheries conservation, as it once did, and staking out bold, resource-oriented positions regardless of the criticism received, the organization became cautious, reacting to the whims of magazine editors and the underemployed minions trolling in cyberspace, more concerned with money and membership than its mission.

The final blow came when the organization, once almost arrogantly independent and jealously defensive of its good name, formed a formal alliance with a consortium representing the fishing tackle and boatbuilding industries.

After that, the fish didn’t come first anymore, and the volunteers lost their clout.  While the grassroots were still supposed to handle fundraising tasks, policy was now directed by an “advocacy team” that coordinated with the consortium.  Press releases came from the consortium’s pen.  Proposed legislation, too, became a consortium responsibility.  The volunteers could still take a position on such things, but were informed that any position that they took might have to be changed a bit—if the consortium disagreed.

It’s hardly surprising that under such arrangement, “fish first” was discarded in favor of “socioeconomic benefits” and “anglers’ rights.”

Recognizing that there would be no going back, I reluctantly walked away from the table, convinced that grassroots fishery conservation was dead.

That was four years ago.  Since then, I learned that I was wrong.  At least, I was wrong about grassroots conservation being dead.

I was reminded of that just the other day, when I heard about a group called Save Our Cobia.  It’s a new organization, apparently operating on a shoestring and a dream.  According to its website, the group was formed

“because numerous anglers along the Northern Gulf of Mexico have come to the realization that cobia, ling, or lemonfish, whatever you may call them, stocks are in trouble and that we need to acknowledge it and take action before it gets any worse.”

The last stock assessment of Gulf of Mexico cobia was performed in 2013, and didn’t do much to further the management process.  Instead of providing clear guidance, it merely reported that

“Due to a lack of consensus amongst the [Council of Independent Experts] reviewers responsible for evaluating the assessment, point estimates of population benchmarks cannot be provided at this time.”

Thus, the state of Gulf cobia don’t seem to be getting much attention from my former colleagues in conservation at the big national group, who are in any event pretty fully occupied down in the Gulf, trying to find new and creative ways to overfish red snapper—which do benefit from a peer-reviewed assessment—and frustrate the federal management system.

But, in the spirit of folks who truly do care about putting the fish first, the folks at Save Our Cobia aren’t waiting for bad news from biologists who may eventually decide that the fish are well on the way to perdition.  They want managers to invoke precautionary management measures now, to prevent any further declines.

In that way, they remind me of another grassroots group, Save the Tarpon, which was concerned that the tarpon around Boca Grande Pass, on Florida’s western coast, were being abused by unethical charter boat captains and tournament operators.

They started as a rag-tag group, too—just a bunch of folks who didn’t want to see guides intentionally foul-hooking tarpon with jigs designed just for that purpose.  They were local guides and anglers who were soul-sick at seeing tournament anglers mishandling fish that later washed up, dead, on the shore.

Putting the fish first, they dug deep into their own pockets to take on a big-money tournament and its corporate sponsors even though, at the beginning, they were David faced with not just one, but a host of Goliaths.  They waded out to do battle, asking the Florida Fish and Wildlife Commission to ban the jig that made tarpon snagging relatively easy to do.

Once again, the big, national group did not lend support; rather than take a precautionary position when the facts were unclear, they opposed a jig ban.  The most influential angling publication in the state also failed to give the tarpon the benefit of the doubt, and supported jig use.  Representatives of the tournament that had been harming the tarpon filed a so-called “SLAPP suit”—A Strategic Lawsuit Against Public Participation—against Save the Tarpon, putting them under the threat of a big judgment and forcing them to pay significant legal fees.

Yet Save the Tarpon—who cared about the fish, rather than about advertisers or, perhaps, folks who donated trips or merchandise to fundraising events—persevered.

And they won.

They won a unanimous decision from the Florida Fish and Wildlife Commission, which outlawed the Boca Grande jig.

They prevailed in the lawsuit as well.

It was a win for the good guys—who put the fish first.

We had another such win here in the northeast, back in 2014.

After a benchmark stock assessment confirmed what anglers had been saying for the past few years—that too many striped bass were being killed, and the population was headed downhill—the Atlantic States Marine Fisheries Commission started a process to consider reducing the harvest.

Striped bass anglers, concerned with the health of the resource, demanded that harvest be reduced.  In New York, one angler, Ross Squire, took it upon himself to form the 1 @ 32” Pledge, an informal, Facebook-based group that eventually attracted over 2,000 anglers and helped organize them into a coherent force that turned out at public hearings and advocated for the striped bass.  Similar groups, up and down the striper coast, did the same.

They didn’t get everything that they wanted—in the end, ASMFC recommended recreational regulations that included a 1 fish bag, but kept the size limit at 28 inches, rather than raising it to 32—but despite fervent opposition from some members of ASMFC’s Striped Bass Management Board, they helped to convince a majority of that Board to reduce landings by 25%--enough to reduce harvest to the target level.

Today, opponents of that harvest reduction are trying to increase the striped bass kill.  They have convinced the Management Board to move forward with a draft addendum that, if ultimately adopted, will relax current regulations.

So it looks like it’s time for the grassroots to again gird for a fight.

I have no doubt that they will.

Already, outdoor journalist Michael Wright, writing for the Long Island website 27East, noted that

“Keeper-sized fish are relatively rare for us, but when they do come along, aside from the very large outliers, it is likely that a 28- or 30-inch fish has never spawned in its life before it is caught.  And so, with the health of the overall population at stake, killing it is an even more brazen robbery of the stock…

“[W]e all have a vested interest in the stock of stripers being as robust as possible, and we should at least ask ourselves if the fish flopped in front of us needs to die to fulfill our mission, whatever that may be.”

Those are the sort of sentiments expressed by anglers who care—who care about the health of the resource, and who care about generations as yet unborn, and want them to enjoy the same pleasures that we have enjoyed at the edge of the sea.

Anglers who put the fish first.

They are the sort of sentiments that have always fueled the grassroots conservation effort on every coast, for every species that might be in peril.

And so long as there are folks willing to express them as clearly as Mr. Wright did, grassroots conservation will always remain alive and well.

FLUKE: GIVING CREDIT WHERE CREDIT IS DUE

Fluke regulations have been particularly contentious this year.

Six years of poor recruitment has led to a declining stock, which is now estimated at just 58% of the target level.  In a July 2016 report, the Mid-Atlantic Fishery Management Council’s Science and Statistics Committee warned that

“the stock biomass is dangerously close to being overfished, which could happen as early as next year if increased efforts to curb fishing mortality are not undertaken.”

Thus, it was clear that harvest would have to be reduced to avoid forcing the stock into an overfished state, and to avoid forcing the National Marine Fisheries Service from imposing the significantly more restrictive regulations that would then be needed to fully rebuild the overfished stock.

The Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee determined that coastwide regulations that combined a 3-fish bag limit, 19-inch minimum size and a season that ran from June 1 through September 15 would be sufficient to achieve the needed cutback.

However, the Committee also recommended that the Council  not adopt such coastwide regulations, but instead work with the Atlantic States Marine Fisheries Commission, which would adopt “conservation equivalent” regulations which would also achieve the needed reduction, while allowing states to adopt regulations that were best suited for their local fisheries.

Since anglers located in the heart of the fluke fishery—the states of Connecticut, New York and New Jersey--collectively caught nearly 85% of all recreational landings in 2016, it was pretty likely that regulations in those states would look a lot like with the Monitoring Committee had proposed.

ASMFC prepared a Draft Addendum XXVII to the Summer Flounder, Scup, Black Sea Bass Fishery Management Plan for Public Comment,  which laid out some possible regulatory alternatives. 

If ASMFC had opted to adopt state-specific regulations based on alleged summer flounder landings in the base year of 1998, 2017 regulations in the three core states would have been extremely restrictive, ranging from a 2-fish bag, 21-inch minimum size and 53-day season in Connecticut to a 3-fish bag, 18-inch minimum size and 81 day season in New Jersey.  However, no one having any real experience with East Coast fishery management believed that such regulations would ever be adopted

That’s because ASMFC had grown concerned that, for various reasons, the state-by-state management approach did not treat anglers in all states equitably, with regard to access to the resource.  As a result, beginning in 2014, fluke were managed on a regional, rather than state-by-state, basis, which led to consistent regulations, and a more equitable distribution of angling opportunities, being shared among states belonging to a given region.

Draft Addendum  XXVIII reiterated the concerns that gave rise to the regional management approach, saying

“Heading into 2017, the Board continues to have the same concerns about disproportionate impacts among states from the use of 1998-based allocations and state-by-state management measures.”

Thus, it was almost certain that some sort of regional regulations would be adopted.

The Draft Addendum proposed a number of regional management measures.  The most severe would impose 2-fish bag limit and 18-inch minimum size, along with a very short 59-day season, on the Connecticut/New York/New Jersey region.  However, that option would also result in a 49% reduction, which was substantially more than was needed, so once again, it was a very unlikely candidate.

The likely options looked a lot more like what the Monitoring Committee had come up with:  3 fish, a 19-inch minimum and either a 96-day or 99-day season.  Such regulations were a lot better than either the state-by-state or the other regional option.  However, they didn’t quite allow for a season that ran from the Saturday of Memorial Day weekend through Labor Day, and thus were shorter than a lot of anglers and angling-related businesses would have liked.

There are some members of the angling community who seem to oppose any additional restrictions, no matter how badly they’re needed.  And we all know members of the community who, when discussing fish, tend to exaggerate things a bit.

Thus, we saw a lot of bad information being spread about the reductions associated with Addendum XXVIII.

Here on Long Island, the local paper Newsday reported for-hire captains complaining about a regulatory package that included a 2-fish bag, 19-inch minimum size and a short, 80-day season—a combination never considered by the Monitoring Committee, the Mid-Atlantic Council or NMFS.  

However, although such restrictive regulations were an utter fantasy, they were a fantasy that quickly spread through the angling community and caused much unnecessary angler and consternation.

Down in New Jersey, where the self-appointed leaders of the angling community always seem to prefer expressions of outrage and overblown hyperbole over hard facts and cold reason, we saw the same sort of misinformation repeated when an article predicted

“something in line with a two-fish bag limit for New York, New Jersey, Connecticut and perhaps even Rhode Island, a 19-inch minimum size and a three-month season spanning June, July and August at best,”

and began by telling anglers

“I’m about to really tick you off.”

Lost amid all of the posturing, “alternative facts” and manufactured outrage was the really important news: Fishery managers employed by the New York State Department of Environmental Conservation’s Marine Division were quietly putting together a case for regulations that were less restrictive than anything else proposed by the Council, ASMFC or NMFS.

The proposal ultimately appeared in Draft Addendum XXVIII as “Option 5,” which would impose the same 3-fish bag and 19-inch minimum size on the Connecticut/New York/New Jersey region that was suggested by both the Council and ASMFC, but couple that size and bag with the same 128-day season that the states have enjoyed since 2014.  Other states would be required to increase their minimum size by one inch, and adopt a bag limit of no more than 4 fish.

There was some doubt about the viability of such rules, as they would only address the 30% reduction required by the declining stock, and not address any purported overfishing in 2016.  In a December 8, 2016 letter to the Chairman of ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board, Marine Division Director James J. Gilmore, the following explanation was made

“There seems to be a poor relationship between the recreational measures (derived from calculations based on the [Marine Recreational Information Program] and the performance (as estimated by MRIP)…Under 3 years of consistent regulations from 2014-2016, coastwide harvest estimates in numbers of fish have ranged from 1.6-2.5 million fish, varying as much as 50% between years.  When we consider a smaller geographic scale, this variability increases to 66% between years in the CT-NJ region, and an average of 139% at the individual state level.  It is difficult to say how much of this variability is due to estimation vs. actual harvest magnitude…

“Given a declining summer flounder stock biomass, lower catch limits have been recommended by the SSC and adopted by the Council.  More conservative recreational measures must be adopted along the coast in order to take fewer fish.  Given the variability discussed above, it is impossible to predict with any degree of accuracy the impact changing measures will have on recreational harvest estimates.  Adopting more conservative measures should reduce harvest; we just do not know how much with any degree of confidence.

“We suggest a simple approach to decrease the number of legal fish available to anglers.  Real reductions in mortality can be achieved with a size limit increase of one inch across the board for every state and region.  Increased seasonal restrictions will also reduce harvest, though the change in season length needs to be significant in order to achieve meaningful reductions.  Additionally, the seasons in some regions are already highly restrictive (128 and 132 versus 245 and 365 days).  Cuts to the length of season will be more painful to some states and regions than others.  We are not, therefore, recommending cuts to seasons in regions with significant restrictions already in place.  The impact of reductions in the possession limit are harder to calculate, but have the advantage of reducing our exposure to the inflammatory potential of any single intercept…Our suggestion is that no state or region have a bag limit higher than another, and that bag limit not exceed 4 fish.”

It was a bold proposal, as it effectively said that, given the limitations of MRIP as currently implemented, the evidence of overfishing in 2016 was not convincing enough to mandate remedial measures.  There was a lot of uncertainty as to what ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee, or NMFS, might say about the measure.

Most of the answer to that came in a January 20, 2017 memorandum from the Technical Committee to the Management Board, which adopted New York’s analysis and stated, in part, that

“The [Technical Committee] agreed that Option 5 was more likely to achieve a ~30% harvest reduction than Options 1 through 4 were likely to achieve a 41% reduction, mainly due to the fact that given all of the variability in the information on which the reduction calculations are based, the ability to achieve a more modest goal is believed to have a higher probability of being realized than a more conservative goal.  Option 5 is based upon broad strokes to reduce harvest through universal minimum size increases and consistent lower possession limits.  In addition to decreasing the number of fish harvested, the minimum size limit increases may grant some protection to younger year classes and it is hoped that smaller possession limits will decrease MRIP variability by dampening the inflammatory potential of heavily weighted intercepts.  The measures proposed in Option 5 also continue the progress toward equitable access that have occurred under regional management thus far…While the reduction value of changes to bag and season can be ‘calculated’ as part of the standard methodology, the actual impact on harvest and harvest estimates is far less certain.  We have seen that variability in actual harvest and in harvest estimates is high, and large reductions in a small number of states/regions may not be realized whereas the broad measures in Option 5 are more likely to be effective in at least some portions of the coast.”

Given that endorsement, Option 5 was adopted by ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board.  The only remaining question is whether NMFS would go along

.

Last week, anglers got the good news that NMFS has issued proposed regulations that would allow states to implement Option 5.  The notice stated that

“We propose to continue the ‘conservation equivalency’ approach, in which states develop state or regional minimum sizes, possession limits, and fishing seasons that will achieve the necessary level of conservation.  Both the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission recommended continuing conservation equivalency.

“For state waters, the Commission has reviewed measures submitted by the regions and certified that they are, in combination, the conservation equivalent of the Federal coastwide measures that would prevent overfishing.”

So, thanks to some groundbreaking work by James Gilmore, his colleagues Steven Heins and John Manascalco and other folks at the New York DEC, fluke anglers in the Connecticut/New York/New Jersey region will be able to enjoy the same season as last year, that runs from the middle of May through mid-September, in exchange for what, given the state of the fluke stock, is a relatively modest increase in the size limit along with a reasonable bag.

They won’t have to suffer through the draconian rules imagined by some in the angling press, nor the more restrictive regulations that were actually being contemplated by the Council or ASMFC.

As they drift the fluke grounds this summer, it would be nice to think that fishermen might give some thanks to the team at the DEC’s Marine Division who, amid all of the hype and hollering, quietly and effectively came up with a way to protect the fluke, while maximizing anglers’ opportunities to enjoy the resource.

Such thanks was certainly earned.

SADLY, NMFS' ASSESSMENT WAS RIGHT

Counting fish is a difficult job, and even the best stock assessment contains its share of uncertainty.

The 2014 stock assessment update for Gulf of Maine cod found that, depending on the model used, the current spawning stock biomass might be as low as 2,100 metric tons or as high as 2,400 metric tons, and that’s before any statistical errors are taken into consideration. However, for practical management purposes, any such errors shrink into insignificance, since the spawning stock biomass needed to support a healthy, sustainable stock is somewhere between 47,184 and 69,621 metric tons, again depending upon the model used, and the current spawning stock is, at best a mere 4% of that.

Thus, there isn’t much uncertainty about the state of the cod stock at all. Based on the best available data, Gulf of Maine cod are in serious trouble.

Fishermen, however, disagree. Rejecting the scientists’ data in favor of their own opinions about the stock’s health, they objected to harvest reductions imposed in response to the update. Vito Giacolone, the policy director of the Northeast Seafood Coalition, said, “The fish are in great shape and the only real constraint on catch is quota. Fishermen are seeing that across the board on a lot of the species…We’ve never had a greater gap between what the fishermen are seeing on the water and what the scientists are saying. Never.”

Some have argued that the scientists’ problem is that they use gear that isn’t good for catching the species in question. Gloucester, Massachusetts fisherman Al Cottone claims that the gear used in the National Marine Fisheries Service (NMFS) fish surveys miss “the species that tend to stay on the bottom, like cod and flounders. Everything that attacks the bottom of the net is taking a hit, is that a coincidence? If we were seeing that every day in our fishing practices, we’d all say we have a serious problem. But that’s not what we’re seeing.”

In response to concerns about the accuracy of the NMFS surveys, and in an effort to support its struggling fishing industry, the Commonwealth of Massachusetts decided to do its own survey, announcing that, “Given the poor stock of Gulf of Maine (GOM) cod, low catch limits, and many fisherman’s claims that the cod status is better than currently assessed, MarineFisheries implemented a new GOM Cod Industry Based Survey in April 2016.”

The first year of the survey has been completed, and the news is not good. As the Boston Globe reported, “in a milestone in the war over the true state of cod in the Gulf of Maine, Massachusetts scientists have reached the same dismal conclusion that their federal counterparts did: The region’s cod are at a historic low—about 80 percent less than the population from just a decade ago.”

The state survey was comprehensive. According to the Globe, “the state spent more than $500,000 to trawl for cod in 10 times as many locations [compared to the NMFS surveys]. Rather than sampling the waters twice a year, as [NMFS] does, the state cast its nets every month from last April to January, and kept them in the water about 50 percent longer. They also searched for the fish in deeper waters, where fishermen have said they tend to congregate.” Micah Dean, the Massachusetts scientist overseeing the survey, noted that “It was an exhaustive survey meant to provide an answer to the questions that the fishermen were posing. But the fish weren’t there.”

Fishermen, on the other hand, are steadfastly rejecting the Massachusetts survey’s results. Vito Giacalone declared, “The state survey literally does zero to improve our confidence. You can’t just sample anywhere. You have to go where the cod are supposed to be. Where these fish exist in the western Gulf of Maine is greater than it has ever been in my lifetime.”

Scientists say that cod tend to group together when the population shrinks, and that fishermen tend to emphasize the places where such bunches of cod remain abundant, and ignore all of the empty water elsewhere. But bolstered by their own observations and, perhaps, by confirmation bias—people’s tendency to embrace any information that supports their own beliefs, and reject information that contradicts them—fishermen remain unwilling to accept what the scientists say.

As noted in the blog Talking Fish, “it seems obvious now that those who disagree with the assessments will never agree. They no longer seem to only be blaming faulty assessments but the foundation of science itself.”

Unfortunately, such intransigence isn’t limited to Gulf of Maine cod.

In New Jersey, some recreational fishermen, abetted by various elected and appointed officials, are challenging NMFS’ most recent update of the summer flounder stock assessment.

Based on such update, which shows that summer flounder have experienced poor recruitment for six consecutive years, and that the population has declined to just 58% of its target level, scientists have determined that the annual catch limit must be reduced by 30% to avoid driving the stock into an overfished state.

In January, a group of New Jersey congressmen wrote to then-Secretary of Commerce Penny Pritzger, requesting that the annual catch limit not be cut. According to columnist Al Ristori, writing for the website nj.com, the congressmen asked that NMFS “reexamine its methodologies and conduct a new benchmark summer flounder stock assessment before making any decision to reduce summer flounder quotas.”

Ristori said that proposed regulations “would all be an economic disaster for the N.J. [summer flounder] fishery, and many experts believe they are not necessary for a fishery which appears to be in relatively good condition. The goals set for full recovery were established on questionable data from long before there was management of the fishery—and may not be attainable.”

Such comments are effectively indistinguishable from the comments that New England fishermen made about cod….

Further down the coast, the same sort of things are being said about South Atlantic red snapper. A stock assessment released in April 2016 indicated that the spawning stock biomass, although slowly increasing, remained low—about 22% of the spawning stock biomass target.

Neither commercial nor recreational fishermen were allowed to harvest South Atlantic red snapper in 2016, in order to account for account for excessive mortality the year before, when fishermen killed more than twice the annual catch limit. The season may remain closed through 2017.

The season closure angers fishermen and for-hire vessel operators, who are seeing more snapper than they had in past years, and are confusing a stock that has improved from dismal to somewhat less dismal abundance with a truly recovered population.

A recent article on the website of TC Palm, published in southeastern Florida, quoted charterboat captain Glenn Cameron, who complained, “I think [red snapper are] brutally mismanaged. I believe the stock assessments are asinine. I don’t know where they collect their data, but there are productive bottom fishing spots I used to go to and don’t anymore due to all the red snapper there. I can’t catch any mutton snapper, mangrove snapper or grouper in some spots because it’s been polluted with red snapper.”

Another captain, Rich Kluglein, agrees, saying “It’s gotten pretty silly…They are on every rock along the 27 Fathom Curve. I’ve caught them as shallow as 55 feet of water.”

Again, it sounds a lot like what the New England cod fishermen are saying.

Yet all indications suggest that the New England cod fishermen are completely wrong.

There are no indications that the fishermen who pursue Mid-Atlantic summer flounder or South Atlantic red snapper are any more right.

Some fishermen will believe what they choose to believe, regardless of the facts that fisheries managers are more than happy to provide them.

But the nice thing about facts is that they remain true, whether one chooses to believe them or not.

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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/ 

A COURT CONSIDERS ALLOCATION

Allocation is arguably the topic that fisheries managers like least—and do their best to avoid.

It’s hard to blame them.

In the end, fisheries management is a zero-sum game.  The Magnuson-Stevens Fishery Conservation and Management Act requires that an annual catch limit be established for each managed species.  In a mixed-use fishery—that is, a fishery that includes both commercial and recreational fishermen—annual catch limits are established for each sector, and the overall catch limit allocated between them.

Increasing the allocation for one sector necessarily means that the other sector shall get less.

It’s thus only natural for the folks who stand to get more to support the reallocation process, and for the folks who stand to get less to fight reallocation as hard as they can.

Recreational fishermen often believe that the allocation process has historically favored commercial fishermen, and have sought a reallocation of the overall harvest of several species. 

A 2014 report titled “A Vision for Managing America’s Saltwater Recreational Fisheries”, which might be considered the manifesto of the recreational fishing industry and anglers’ rights community, had this to say about allocation:

“The Magnuson-Stevens Act should require the NMFS, in conjunction with the National Academy of Sciences (NAS), to develop guidelines and criteria that the regional fishery management council must consider for allocation of all mixed sector fisheries.  The allocation decisions must consider conservation and socioeconomic output..”

Perhaps in response to such comments, NMFS issued its “Fisheries Allocation Guidelines” in 2015 and the more formal Fisheries Allocation Review Policy in 2016.   However, the guidance contained in such NMFS guidelines was so vague—on one hand, they laid out a set of criteria to be used in making allocation decisions, and on the other, they stated that in any given situation, all such criteria may not apply and others, not included in the documents, might be relevant—that they provided little or no practical guidance at all.

Overriding every other consideration is National Standard 4 of Magnuson-Stevens, which requires that

“Conservation and management measures shall not discriminate between residents of different States.  If it becomes necessary to allocate or assign fishing privileges between among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen, (B) reasonably calculated to promote conservation, and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.”

Once again, the law provides no clear guidance, but rather provides a set of vague standards that must be interpreted, first by fishery managers, and later, perhaps, but the courts.

Recently, we had a chance to see how a court might approach such standards, at least in the context of one particular case.

The matter was Guindon v. Pritzker, decided by the United States District Court for the District of Columbia on March 3, 2017 (and so not to be confused with a case of the same name, decided by the same court, in May 2014).  It arose, as so much fisheries legislation has in recent years, out of the recreational Gulf of Mexico red snapper fishery, and problems related thereto.

More specifically, the matter represented a challenge to Final Amendment 28 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which was released in August 2015.  Amendment 28 changed the allocation of Gulf of Mexico red snapper from 51% commercial, 49% recreational to 48.5% commercial, 51.5% recreational, a 2.5% change.  

The 48.5%/51.5% reallocation was made in an effort to correct what the Gulf Council believed was an error in the original allocation, which was revealed when data collected using the methodology of the new Marine Recreational Information Program (MRIP), used to estimate anglers’ landings, indicated that MRIP’s predecessor, the Marine Recreational Fishing Statistics Survey, underestimated recreational harvest

The challenge was brought by a group of commercial fishermen and commercial fishing organizations, who argued that such reallocation was illegal.

The Court, in the end, agreed.  However, the written decision made it clear that the argument was a close one; it is thus worthwhile to take a long look at such decision, to understand what considerations ultimately swayed the judge to rule as she did.

The plaintiff commercial fishermen argued that Amendment 28 did not meet the allocation standards set out in National Standard 4. 

They also argued that it failed to conform to various sections of Magnuson-Stevens, including Section 407(d), which is specific to the Gulf red snapper fishery; Section 303(a)(1)(A), which requires federal management actions to promote the long-term health and stability of the relevant fishery; National Standard 1, which requires that conservation and management measures prevent overfishing while producing optimum yield;  Section 303(a)(14), which requires that the economic impacts of an allocation decision be considered, and that they be shared fairly among the different sectors; and Section 303(a)(9), which requires a fishery management plan to assess the conservation, economic and social impacts of management measures.

The plaintiffs prevailed only on the National Standard 4 count, but that was enough to have Amendment 28’s allocation change vacated by the Court.

So the question is, why did Amendment 28 fail to meet National Standard 4’s requirements?

Quoting parts of a decision in a 1991 case, C & W Fish Company v. Fox, the Court in Guindon noted that to pass National Standard 4 muster, there are

“three requirements that must be met whenever [a fishery management plan] allocates fishing privileges:  (i) the allocation must be fair and equitable; (ii) it must be reasonably calculated to promote conservation; and (iii) it must not allocate an excessive share of privileges to any particular group.”

The Court recognized that the fact that one sector might be disadvantaged in relation to another does not, by itself, invalidate an allocation, for

“inherent in an allocation is the advantaging of one group to the detriment of another.”

It also pointed out that a court even found that a fishery management plan which completely outlawed the sale of billfish, and effectively allocated all of the billfish resource to the recreational sector at the expense of commercial fishermen, complied with National Standard 4 because such action would benefit the fishery as a whole.

Yet it still found that Amendment 28 was fatally flawed, and failed to meet the “fair and equitable” requirement of National Standard 4.  The failure occurred because

“Amendment 28 enables the recreational sector to catch more fish in the future because they caught more fish in the past, in excess of applicable restrictions…Consequently, Defendants create a system in which one sector must demonstrate an increase in landings in excess of their quota in order to obtain an increase in their allocation.  The flaw in this system is that the commercial sector can never obtain an increase in their allocation because the commercial sector can never exceed their quota due to the [individual fishing quota] program…Amendment 28 therefore places the commercial sector at a permanent disadvantage by failing to take into account the [individual fishing quota] program and its impact on reallocation.  The Court cannot deem such a scenario fair and equitable as required by National Standard Four.”

In other words, recreational fishermen can’t repeatedly overfish their allocation, and then use that misconduct to justify a bigger allocation.

Amendment 28 only appears to consider fishing years between 1986 and 2014, when there was a lot of recreational overfishing.  In the context of those years, the Court’s logic is difficult to challenge.

However, the base years used to set the original 51% commercial/49% recreational allocation were, as the Court in Guindon acknowledges, 1979 to 1987.  There is nothing in Amendment 28 to suggest that the MRIP methodology was applied to such base years.  If it had been, there is the real possibility that such calculation would have shown that the recreational landings during the base years were higher than originally believed.  If that were the case, such data might have provided more robust grounds for reallocation.

But that is all speculation.

For now, Guindon v. Pritzker stands for the proposition that a sector which overfishes a public fishery resource can’t use its own misdeeds to justify a reallocation, particularly when the other sector has adopted a system that makes overfishing all but impossible.

That seems like plain common sense, but in this case, at least, it took a federal judge to figure it out.