Although New York and Connecticut weren’t pleased by the
harvest reduction, both states
bowed to biological realities of the situation and adopted the new rules.
That didn’t happen in New Jersey, where
spokesmen for the angling community, abetted by legislators and their state
regulators, threw a months-long hissy fit that appeared to reach its
culmination at the Management Board’s May meeting, when the state’s
representatives proposed alternative management measures which would allow the
state’s anglers to fish under an 18-inch size limit if they chopped 24 days off
of the end of their season and the state took a few feel-good actions that did
not rise to the level of regulatory mandates.
Debate on the New Jersey proposal dragged on for three hours
after the meeting’s scheduled end.
Finally, perhaps out of a hope to get something for dinner before all of
the restaurants closed (or, perhaps more likely, because after listening to
something like six hours of near-uninterrupted whining, the other states’
representatives were in immediate need of a couple of drinks) the
Management Board voted to send the proposal to the Summer Flounder, Scup and
Black Sea Bass Technical Committee for a thorough analysis.
At that point, although the Technical Committee had not yet ruled
on the biological merits of the new proposal, New Jersey declared victory. An
article in the Asbury Park Press
proclaimed that
“A compromise is close is close on summer flounder
regulations,”
the
New Jersey Marine Fisheries Council unanimously recommended that the proposal become
the state’s 2017 regulations and such
regulations were officially adopted by the New Jersey Department of
Environmental Protection a few days later.
Now, it seems that the Garden State fishing community, along
with its regulators, acted a bit too fast.
A special Management Board meeting was held by conference
call last Monday, to receive the Technical Committee’s recommendation on New
Jersey’s alternate management measures and to decide whether to approve New
Jersey’s adoption of such measures for the 2017 season. To gain Management Board approval, New Jersey
would have to convince the Technical Committee that its proposal would reduce
fishing mortality by at least 30%, when compared to 2016.
The New Jersey proposal, as
explained in a memo provided to the Management Board, could be broken down
into three distinct segments. The first
were the restrictions on anglers’ actions—the 18-inch size limit, 3-fish bag
limit and 104-day season; those would supposedly reduce landings by 24%.
The state then argued that its preferred management measures
would lead to far less discard mortality than would the measures adopted by
ASMFC, and that such reduced discard mortality would count for another 6%
reduction in overall fishing mortality.
Finally, the state proposed to engage in an angler education
process that would provide 50,000 hooks, of a type believed to reduce release
mortality, to for-hire vessels and tackle shops throughout the state. Garden State anglers made more than 1,400,000
trips in pursuit of summer flounder last year, so those 50,000 hooks probably
wouldn’t go very far, and there would be no regulation mandating their
use. However, New Jersey still
maintained that such hooks, coupled with an angler education program that
involved both videos and other materials on how to safely release fish, would
be good for another 2% reduction in fishing mortality.
Thus, New Jersey argued, its alternative management measures
would cut harvest by 32%.
The Technical Committee just didn’t buy it, and reported
that the New Jersey proposal did not have “conservation equivalency” with the
measures adopted by the Management Board in February.
That pretty well doomed any chances of the proposal being
approved by the Management Board. Even
so, after the Technical Committee made its presentation, New Jersey took the
floor in support of its proposal, made a motion that it be accepted by the
Management Board, and waited for someone to second to that motion.
And then, throughout a long, embarrassing silence, they
waited some more.
Finally, Michael Luisi, the Maryland fishery manager who
chairs the Management Board, broke the silence to make another call for someone
to second the motion.
The silence prevailed.
Not a single Management Board member, from any of the other states, believed
that the New Jersey proposal was worthy even of discussion, much less of
adoption.
And so, for lack of a second, the
New Jersey proposal failed. As far as
ASMFC is concerned, New Jersey is now bound by the Management Board’s February
vote.
New Jersey, however, appears to feel otherwise, as reports
coming out of the state suggest that the regulations adopted earlier this month
will be final.
If that is the case, ASMFC is ready and willing to invoke
provisions of the Atlantic
Coastal Fisheries Cooperative Management Act, which could shut down all
commercial and recreational fluke fishing in the state until it complies with
the Management Board’s decisions. The
relevant portion of that law provides
“The Commission shall determine that a State is not in
compliance with the provisions of a coastal fishery management plan if it finds
that the State has not implemented and enforced such plan within the timetable
established under the plan…
“Upon making any [such] determination…the Commission shall
within 10 working days notify the Secretaries of such determination…
“Within 30 days after receiving a notification from the
Commission…and after review of the Commission’s determination of noncompliance,
the Secretary [of Commerce] shall make a finding on
“1. Whether the state
in question has failed to carry out its responsibility [to implement the
required management measures]; and
2. if so, whether the measures that the State has
failed to implement and enforce are necessary for the conservation of the
fishery in question…
“Upon making a finding…that a state has failed to carry out
its responsibilities under…this title and that the measures it failed to
implement are necessary for conservation, the Secretary shall declare a
moratorium on fishing in the fishery in question within the waters of the
noncomplying State…”
So the big question is: What happens now?
The answer is unsatisfying, and a little unclear.
After deciding not to approve New Jersey’s proposed
management measures last Monday, the Management Board, in a 9 to 1 vote (with
both the National Marine Fisheries Service and the U.S. Fish and Wildlife
Service abstaining), recommended that ASMFC’s Interstate Fisheries Management
Policy Board find New Jersey out of compliance with the required management
measures. A conference call scheduled for
June 1 will provide the Policy Board an opportunity to decide that question. (The Policy Board actually found New Jersey
out of compliance at its regular May meeting, but because New Jersey adopted
the 3-fish bag and 104-day season since then, NMFS advised that a new vote
would be needed.)
The results of that vote will be quickly communicated to the
Commerce Department, which will have up to 30 days to make its decision.
Thus, under a best-case scenario, New Jersey will be able to
remain non-compliant at least through early July, stealing fish from the other
states and shifting the burden of conserving the stock onto the shoulders of
others.
Once the Secretary of Commerce makes his decision, things
could go in one of two ways: While New
Jersey is clearly out of compliance, the Secretary could buy the state’s
argument that its regulations achieve the desired landings reductions, and that
the measures adopted by ASMFC are not necessary to conserve the stock. Or, the Secretary could confirm ASMFC’s
findings and impose a moratorium on fluke fishing in New Jersey waters.
If the Secretary elects the former course, New Jersey will be
able to thumb its nose at the Management Board, maintain its smaller size limit
at the expense of the other states, catch more fish than the science would
otherwise permit and in a worst-case, if hopefully unlikely, scenario, perhaps
push the stock into an overfished state.
By failing to find New Jersey out of compliance, the
Secretary would encourage other states to challenge other ASMFC management
measures with their own questionable statistics, and thus do real harm to the
supposedly cooperative interstate management system.
If the Secretary does
impose a moratorium, the impact of such action would depend on the effective
date.
A moratorium that became
effective immediately after the close of the Secretary’s 30-day fact-finding period would close
down New Jersey’s fishery during the critically important months of July and
August, and thus force the state to come into compliance as soon as it possibly
could.
On the other hand, if the Secretary gave the state 30 days
to come into compliance, New Jersey would be able to enjoy noncompliant
regulations throughout the month of July and the first days of August, while
doing additional harm to the stock and demonstrating that there is real benefit
in ignoring ASMFC mandates for as long as legally possible.
Right now, it’s impossible to say how this will play
out.
Anglers interested in maintaining a
sustainable stock can only hope that the Secretary acts quickly to find New
Jersey out of compliance, and imposes a moratorium that becomes effective as
soon a practicable, in order to protect both the health of the stock and the
health of the management system on which many stocks depend.
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