THE JOKE'S ON FLORIDA'S STATE FISHERY MANAGERS

When I testified before the House Natural Resources Subcommittee on Water, Power and Oceans a couple of weeks ago, one of the other witnesses at the hearing was Nick Wiley, the Executive Director of the Florida Fish and Wildlife Conservation Commission.

While my testimony generally endorsed the current conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act, Mr. Wiley’s testimony was more critical of the law.  In his written testimony, he noted that

“We are facing a number of highly controversial and divisive fishery management challenges that continue to simmer.  We cannot fully address these challenges in many cases because we are boxed in by the current framework of the Magnuson-Stevens Act, and we need your help to find solutions.

“…The requirement to manage fisheries under strict annual catch limits, the overly prescriptive constraints for stock rebuilding plans, and general inflexibility within the current version of the law have hindered management of fish stocks in the South Atlantic and Gulf of Mexico…Changes to the law are needed to provide better utilization of and access to the nation’s public trust resources for the American public and the citizens of Florida.”

The general thrust of the comments was that Magnuson-Stevens should be modified in a way that would make federal fisheries management more closely resemble that of Florida and the other states, which do not have laws that require overfishing to end or that overfished stocks be promptly (or ever) rebuilt.

Comments from majority members of the Subcommittee seemed to be intended to support Mr. Wiley’s remarks.  Rep. Garret Graves (R-Louisiana) came right out and asked Mr. Wiley whether he was aware of any fish stocks that had been mismanaged by the State of Florida.  Not surprisingly, Mr. Wiley responded that there were none.

But facts have a way of slipping out, often in roundabout ways.  There is an old saying, “In vino veritas”—“In wine there is truth”—and the monarchs of a previous age supposedly employed jesters, sometimes called “fools,” who were permitted to speak truth to the throne, often using humor or parody to carry their message, without the fear of losing their heads that afflicted the rest of the court.

According to a recent article in the Bradenton Herald, a Florida newspaper, a post on a self-described entertainment website, which warns that all such posts found there

“are humerous news, fantasy, fictional, that should not be seriously taken or as a source of information”

has now played the fool, and revealed a real problem with the way Florida manages one important species within its state waters.

The headline on the “fake news” website announced

“Florida FWC considers closed redfish fishing season.”

It wasn’t true.  As far as anyone knew, the Florida FWC had absolutely no intention of closing the redfish season in the waters around Bradenton.

A lot of anglers who read the headline apparently didn’t realize that it was a gag.  The news of a possible redfish season closure went viral in the west Florida fishing community, spreading across social media.

But the big news was not that the story was false.  The big news was that a lot anglers in the Bradenton region thought that closing the redfish season for a while might be a good idea.

It seems that those anglers don’t believe that Florida’s state managers have been managing redfish very well at all.

According to the Bradenton Herald, one charter boat captain remarked that

“This is a good thing.  Give the redfish a chance to recoup numbers.  A lot of schools are getting worked over and harvested.

A second captain said

“I’m for it, they closed snook for four years, and look how they rebounded!  Redfish are overfished.

A third noted that there were the

“Fewest reds in our region that I have experienced in my 35-year career.”

The author of the article seemed to support such observations, writing that

“About five to seven years ago the amount of redfish around Tampa and Sarasota Bay was astonishing.  From the spring until the fall, it was catch as many redfish as you wanted from dozens of schools that patrolled the flats.  Captains had clients saying they were getting bored of cranking on the hard fighters non-stop.

“These days you’re lucky to find a few redfish, nevertheless a school of hundreds.  And when a big school is found, the boats soon follow, and the fish are targeted day after day until they leave or are kept if legal size.”

He doesn’t think that overfishing is the sole reason that redfish are scarce, but opines that redfish, along with snook and speckled trout

“have limited habitat and probably the highest “angler to fish” ratio than anything else that swims locally…

“I’ve seen many captains that refused to keep snook on their boats following the snook freeze nearly ten years ago…Perhaps it’s time we treat redfish in the same manner to see if it helps our local fisheries.”

So yes, it does seem that, contrary to Mr. Wiley’s response at the hearing, there is at least one stock of fish down in Florida that state managers aren’t handling very well.  

Maybe there are more, perhaps there are not.

The problem is that, without real standards, you can’t tell.

Mr. Wiley decried the “strict annual catch limits” and “overly prescriptive constraints for stock rebuilding plans” that are a part of Magnuson-Stevens, but he failed to note is that without such provisions, it’s very easy to let stocks tumble downhill without taking any remedial action—and without having to admit that such action is needed.

Without an annual catch limit, derived from the optimum yield of the redfish stock found of the west coast of Florida, it’s very difficult, perhaps impossible, to determine whether that stock is overfished, and action needs to be taken.  So when anglers find a body of redfish, those redfish are pounded “day after day until they leave or are kept if of legal size.”  (It should be noted that there is no commercial fishery for redfish in Florida, so any depletion of the stock can be laid solely at the anglers’ feet, and no fingers should be pointed at the usual commercial bogeymen.)

And without a hard threshold for an overfished stock, it’s impossible to determine whether the relevant redfish stock has declined so badly that rebuilding measures, and a meaningful rebuilding deadline, need to be imposed.

Instead, Florida manages redfish by the sort of “alternative measures” that various anglers’ rights groups and industry players want to introduce into federal fisheries, and the results have been predictable—fewer fish, and fewer fishing opportunities for anglers.

Those who would weaken Magnuson-Stevens argue that recreational fishermen shouldn’t be bound by annual catch limits, and are harmed by rebuilding timelines.  They say that alternative management measures should be used.

They try to tell us those things with a straight face.  

But it seems that it may take a fool—or a gag on an Internet website—to tell us the things that are true.

    

TARNISHED HALOS: ANGLERS, CONSERVATION AND THE LAW

A few nights ago, my wife and I went out for dinner at a local seafood restaurant.  We ordered a bunch of raw oysters to start, and then the waiter told us about a special appetizer that was not on the menu.

He said that “We have a seared bluefin tuna, just in from Montauk…” and began to describe the dish.

It sounded good.  I wanted to eat it.  But the word “bluefish” got my thoughts going, because a bluefin tuna has to be at least 73 inches long before it can legally be sold, and that’s a lot of fish for a smallish local restaurant to buy.

So I asked, “By any chance, do you know how big the fish was?”

And he said, “One hundred ten pounds.”

At which point, we ordered the crab cakes, because the bluefin was clearly illegal.  A 73-inch bluefin should weigh well over 200 pounds—probably something close to 225—and even dressed, will weigh more than 110.

Besides, there haven’t been a lot of 73-inch bluefin around Long Island lately.  On the other hand, there had been plenty of fish in the 100-150 pound range, and you didn’t have to go all the way to Montauk to find one.  Fish of that size were being regularly brought back to the local docks.

By anglers.

The odds were very high that the “special” bluefin appetizer that the restaurant was serving came from a fish caught by an ostensibly recreational boat, and sold illegally at the restaurant’s back door.

After all, it’s not an uncommon occurrence.  I’ve been fishing offshore since the late 1970s, and a lot of folks who claim to be recreational anglers, and have neither a New York Foodfish License nor a New York Landing Permit, regularly market their tuna, sometimes through seafood dealers and more often through a shop’s or a restaurant’s back door. 

Sometimes they get caught, but the immediate cash return, compared to the remote chance that they will be caught and fined, makes such criminal sale seem like a reasonable gamble.

And yes, the practice is pretty widespread.

Things are even worse in the striped bass fishery, where back-door sales to restaurants by so-called recreational anglers are routine events.  In his book, Caught, author Jeff Nichols shed some much-needed daylight on a thriving black market fueled by the many recreational anglers who have decided that the best way to fuel their fishing habit is to turn their striped bass into illicit dollars that can in turn fuel future excursions, where more bass will hopefully be caught, and illegally sold…

Every fall, if the striped bass set up in front of Fire Island Inlet, as they often do, many local “recreational” boats will exceed their legal bag limits, sometimes making more than one trip each day, in order to illegally sell bass to restaurants and retail outlets.  

Such behavior is so common that it rarely even draws comment, much less censure.  A few years ago, I resigned from a fishing club that I had belonged to for more than 30 years, after a member of its Board of Directors was busted by conservation officers for illegally harvesting striped bass to sell in a restaurant that he owned.  I left because the club completely ignored such misconduct, with the President calling him a “good member” and everyone else shrugging it off.

Such behavior is nothing new.

I grew up in Connecticut, which was a “gamefish” state that outlawed commercial striped bass fishing during the 1950s.  Yet it was common knowledge that recreational fishermen—including all of the so-called “sharpies” that stood atop the striped bass anglers’ pecking order—sold their catch through local outlets as a matter of course, the "gamefish" law be damned.

Thus, I had to laugh when I read a recent op-ed piece in the on-line edition of Sport Fishing Magazine, in which Mike Leonard, spokesman for the American Sportfishing Association, tries to justify weakening the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act by arguing that

“…anglers have always been at the forefront of conservation efforts,”

and that

“Most of the opposition [to weakening Magnuson-Stevens] is based on a fundamental belief that if you give anglers an inch, they’ll take a mile.  They like to promote the idea that any changes to insert flexibility into MSA to improve recreational fisheries management will somehow lead to rampant overfishing.  Nothing could be farther from the truth.

“It’s important during this debate over the need for more reasonable access to federal fisheries that neither the public nor fisheries administrators lose sight of anglers’ long-held commitment to conservation…”

Yes, some anglers are committed to fisheries conservation.  I like to think that I’m one of them, and that the folks who I fish with are, too.  

The striped bass fishing community contains a lot of conservation advocates, particularly among the surfcasters and light-tackle boats, although it also contains a lot of poachers.  Conservationists tend to abound in the “difficult” fisheries—striped bass, red drum in the surf, bonefish, tarpon, billfish, permit—while in the “meat” fisheries, they’re harder to find.

As Mr. Leonard points out, striped bass fishermen played a role in turning back a recent effort at the Atlantic States Marine Fisheries Commission to increase the striped bass kill; however, he ignores another ASMFC-managed species, tautog, where recreational fishing interests swarmed thehearings in lynch-mob mode, opposing any action to begin rebuilding fish stocksthat have been overfished for more than 21 years.

Mr. Leonard deny that anglers will engage in “rampant overfishing” without the current strictures of Magnuson-Stevens, but it’s hard to ignore the fact that not only anglers, but the same American Sportfishing Association that he represents, recently praised a federal reopening of the Gulf of Mexico private boat red snapper season, thanking

“Governor Scott, the [Florida Fish and Wildlife Commission], and [Congressmen] Neal Dunn and Matt Gaetz for their support of additional Federal days of Gulf red snapper fishing for recreational anglers.  While we are grateful for an extended season, it’s clear that long-term solutions are needed in order to address the shortcomings of our current federal fisheries management system.”

Another American Sportfishing Association representative, speaking for Keep Florida Fishing, an ASA affiliate, said

“An extended Federal Gulf red snapper season will have a tremendous positive economic impact on Florida’s communities, which depend on our state’s $9.6 billion sportfishing industry.  We appreciate efforts to expand access to our fisheries, and we will continue to push for improvements to federal management of recreational fishing.”

They lavished such praise even though, in reopening the season, the Commerce Department itself admitted that the reopening

“will necessarily mean that the private recreational sector would substantially exceed its catch limit, which was designed to prevent overfishing the stock.  [emphasis added]”

Conservation groups who brought suit against the Commerce Department in reaction to the reopening estimate that private-boat anglers will overfish their catch limit by between 6.8 and 9.6 million pounds, an amount that is certainly “substantial.”

The entire annual catch limit for red snapper—recreational and commercial combined—is only around 15 million pounds.  The fact that American Sportfishing Association praised the reopening, and so effectively condoned anglers overfishing their quota by no less than 7 millon pounds,  makes its reassurances that weakening Magnuson-Stevens won’t “lead to rampant [recreational] overfishing” ring very, very hollow indeed…

Because the fact is, anglers aren’t angels.  Some have a stronger conservation ethic than others, and some have no ethics at all.  The only way to protect fish stocks—and ethical anglers—from the poachers and the fish hogs is to have an effective federal fishery management laws.

I keep remembering a conversation I once had with a fluke fisherman from Staten Island.

I was arguing that one of the benefits of a salt water fishing license was that New York would be able to afford more conservation enforcement officers, but he didn’t believe that would be a good thing. As he put it (and I might get a word or two wrong here, but you’ll get the gist),

“You spend all that money on bait, gas and tackle, you wanna bring somet’in’ home ta eat.  You go out, you can’t catch a legal fish, well, you spend all that money, ya gotta do what ya gotta do…”

So if you want to believe that all anglers are on the forefront of fisheries conservation, and you believe ASA’s proposition that they wouldn’t overfish if the law gave them a chance, well, I won’t say anything about a bridge in Brooklyn. 

But they’re a guy in Bay Shore who might sell you a bluefin, and there are plenty out in Montauk who will sell you a bass…

FEDERAL FISHERIES: ULTIMATELY ACCOUNTABLE

The best fisheries management ideas are essentially worthless if they aren’t enforced.

Thus, when the Magnuson-Stevens Fishery Conservation and Management Act was reauthorized a decade ago, it included the provision that

“establish a mechanism for establishing annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.  [emphasis added]”

Prior to the adoption of such provision, there was often a real incentive for fishermen to fight against the sort of restrictive fishery management measures that were sometimes needed to constrain harvest within biologically appropriate levels.  

While some commercial fisheries, managed on a hard-quota basis even before such reauthorization took place, did require paybacks of harvest overages in previous years, fisheries without hard quotas faced few consequences, other than an increasing shortage of fish, for chronically overfishing target stocks.

The groundfish stocks managed by the New England Fishery Management Council, which eschewed hard-poundage quotas for such so-called “input controls” such as limiting days at sea, probably provides the best example of unaccountable fisheries.  Overfishing such stocks was not subject to any sort of meaningful penalties.  As a result, a 2008 assessment of groundfish stocks found important fish such as cod and various flounder to be badly overfished.

Recreational fisheries, too, were historically immune to any sort of meaningful payback program; overages might result in tightened regulations, but the annual recreational catch limit was not reduced as a result.  The recreational red snapper fishery in the Gulf of Mexico was a prime example of anglers not being held accountable for overfishing; even though they chronically exceeded their annual catch limit, they did not face any sort of payback until a framework amendment to the fishery management plan was adopted in 2014.

2014 also saw a federal court order the National Marine Fisheries Service to impose accountability measures on the recreational red snapper fishery in the Gulf to address such chronic overages.

Such accountability measures help to assure that NMFS’ conservation and stock rebuilding measures remain on track, and that United States citizens can enjoy the benefits that flow from healthy, fully-restored fish stocks.

However, while it is important to hold fishermen accountable in order to properly manage fish stocks, it is even more important to keep fishery managers accountable to the public for their obligation to restore and properly manage fish stocks.  It is in this realm of accountability that Magnuson-Stevens shines particularly bright, and where it is far superior to any state’s fishery management laws.

Much of that superiority arises out of Magnuson-Stevens' clear guidelines.  Overfishing must be ended.  Stocks must be rebuilt as quickly as possible, within a time certain that is very clearly set out in the law.  Annual catch limits must be established, and the best available science must be used to establish management measures.

Those clear standards make it relatively easy for aggrieved parties to put federal fisheries managers back on their proper course should they veer astray for any reason.  

As early as 2000, a federal appellate court decided the case of Natural Resources Defense Council v. Daley, where such court found that

“’to assure’…achievement of the target [fishing mortality rate], to ‘prevent overfishing,’ and ‘to be consistent with’ the fishery management plan, the [total allowable landings] must have had at least a 50% chance of attaining a [fishing mortality rate] of 0.24 or lower…

“The disputed 1999 [total allowable landings] had at most an 18% likelihood of achieving the target [fishing mortality rate].  Viewed differently, it had at least an 82% chance of resulting in [a fishing mortality rate] greater than the target [fishing mortality rate].  Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence.”

With those words, the court in Natural Resources Defense Council v. Daley established a legal standard for federal fisheries managers, requiring that any federal fishery management plan had to have at least a 50-50 chance of achieving its goals, including the goal of preventing overfishing.  

Such a standard could never have been established without the clear guidelines established by Magnuson-Stevens.

Recently, the United States Department of Commerce, acting through its subsidiary agency, NMFS, has taken an action that should qualify the people involved as permanent residents of Bizarro world comics.  

Magnuson-Stevens includes, in its National Standard One, a crystal-clear requirement that

“Conservation and management measures shall prevent overfishing,”

but the agency has reopened the private-boat red snapper fishery in the Gulf of Mexico, even though, by the agency’s own admission,

“The stock is still overfished,”

and

“the approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.  [emphasis added]”

And once again, the private sector is rallying to put the public-sector fisheries managers back on course, challenging the patently illegal agency action in court.  

The matter, Ocean Conservancy v. Ross, has been brought in federal district court in Washington, D.C.; the Ocean Conservancy, the Environmental Defense Fund, and Earthjustice, which provides litigators skilled in conservation advocacy, are collaborating in the effort.

A release issued by Environmental Defense Fund notes that the lawsuit was necessary because

“The Commerce Department decision puts red snapper recovery at risk, jeopardizing fishing businesses and recreational fishing for the species.  It also violates several provisions of federal law.  No scientific analysis accompanied the decision, but publicly available data and conservative assumptions show the extended season will result in private anglers catching three times their science-based limit.  The lawsuit does not seek to change the length of the 2017 season, but instead seeks to prohibit the Department of Commerce from taking future similar actions that continue to jeopardize the species.”

An Ocean Conservancy blog relates a similar message, saying

“The department has set a dangerous precedent by deliberately undercutting the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which requires science-based limits to prevent overfishing and rebuilding plans to return vulnerable fish stocks back to healthy levels.    It is ignoring the proven success of the science-based strategies that have put America at the forefront of sustainable and economically productive fisheries.  Made behind closed doors, the public was not given the usual opportunities to weigh-in on this decision.  And it benefits only one sector of a fishery used by many, turning a blind eye to years of hard sacrifices made by fishermen and coastal communities.”

One of the few public comments condemning the lawsuit came in a truculent e-mail from David Cresson, Executive Director of the Louisiana chapter of the Coastal Conservation Association, who reportedly wrote

“Of course they sued, that’s what the environmental groups do…They hate it when Americans enjoy America’s plentiful public resources.”

In that e-mail, Mr. Cresson seems to have carefully avoided the legal or biological implications of the season reopening, both of which might have proved difficult for his organization to defend. 

Mr. Cresson and the Coastal Conservation Association, which he represents, have been frequent critics of federal management of red snapper in the Gulf of Mexico.  CCA has endorsed the Commerce Department’s decision to reopen the season,  and has also long endorsed the concept of turning all authority for red snapper management over to the states.

State management appears attractive to groups such as CCA because states are not bound by Magnuson-Stevens, and thus are under no legal requirement to end overfishing or rebuild overfished stocks. 

While they are arguably subject to litigation if they act irresponsibly, state law does not contain the clear management standards included in the federal statute.  Instead, state litigation would be governed by the general principles of administrative law, in which agency decisions would stand if they are not arbitrary, capricious or contrary to existing law. 

Whether a state agency action is arbitrary or capricious is governed by a principle known as the “substantial evidence rule.”  Although its particulars differ in every jurisdiction, the rule stands for the principle that courts will not second-guess agency decisions if there is any evidence at all on the record that would support the agency action, even if such evidence is contradicted by other evidence that the court might deem far more convincing.

Thus, a substantial body of scientific data could be ignored by an agency that prefers to believe a few fishermen or tackle dealers who tell them that “there are plenty of fish out there; you just need to know where to find them.”

The fact that CCA and allied organizations are supporting H.R. 2023, and its language

“facilitating greater incorporation of data, analysis, stock assessments, and surveys from State agencies and nongovernmental sources,”

including fishermen, is another clue as to what such groups are trying to achieve and why they oppose current federal fisheries law.

And that’s why it’s so important to keep the conservation and stock rebuilding provisions of Magnuson-Stevens intact.  

They provide objective standards that managers must employ when setting regulations.  They require that the best science available be used.

And on those rare occasions when fishery managers act contrary to the public interest in maintaining healthy, fully restored fish stocks, they provide a way for the courts, acting on behalf of that public interest, to provide the ultimate accountability measure, a legal decision that compels federal fishery managers to maintain healthy and sustainable stocks.

WEDNESDAY IN WASHINGTON

In case no one ever mentioned it to you, Washington, D.C. is hot in July.

Really hot.

It’s the kind of heat that makes sweat bead up into half-inch-wide pools on the back of your hands, and turns the knot in your necktie into a wet, spongy mass by the time you’ve walked from the railroad station into a waiting cab.

But it’s Washington, after all, the crowded, bustling, confusing city that, more than anywhere else, truly sits at the center of the world.

To me, as I’ve written before, it’s a sacred place, arcane and almost mystical, where someone like myself—not one of the power brokers, not an industry leader or the head of some powerful clique—can still sit down in a room with some of the handful of folks who decide the destiny of nations, and expect to be heard.

I’ve been coming down to Washington at least once each year for a while now, to speak to Congressional staff about fisheries issues, mostly about the importance of maintaining the conservation and management provisions that have made the Magnuson-Stevens Fishery and Conservation Act the most comprehensive and more effective law of its kind in the world.

Yesterday, though, was a little different.

I wouldn’t just be meeting with staff.  Instead, I would be one of four witnesses appearing before the House Natural Resources Subcommittee on Water, Power and Oceans, at an oversight hearing called to look into the successes achieved and challenges posed by Magnuson-Stevens, held as an early step in the process of reauthorizing that federal fisheries law.

I had never done that before.

I had been invited to speak by the minority party’s staff; the other three witnesses were invited by the majority, which meant that I was probably going to be the only one at the table who would speak in support of the law.  That was OK, although I had to admit that I watch a lot of CNN, had seen my share of various committee hearings, and knew that the guy with the disfavored position does, on occasion, get worked over pretty hard.

So while I was pretty confident about what I knew, I’ll admit to a kind of pre-battle jitters, and it didn’t help when the hearing was delayed for a half-hour to accommodate a vote on the floor.  That’s when you stop and start thinking about what could go wrong.

But the nice thing about pre-battle jitters is that they quickly disperse when the first shot is fired, and action takes over your mind.  Although the truth is that there were no real shots and nothing much to be jittery about; the Congressmen in the room were all respectful of everyone (although they sparred a bit among themselves), a couple of those who disagreed with me asked pointed, but reasonable questions (one revealing that he has read this blog), and everything ended on a handshake and kind words in the hall with one of the legislators who had disagreed with at least one of my positions.

To be honest, the whole thing had been fun.

It had also been a learning experience, because it was clear where some of the folks who want to change Magnuson-Stevens are going astray.  One of the big misconceptions was that proponents of federal fisheries management doubt the competence of state fishery biologists and state fishery managers.

In fact, nothing could be farther from the truth.  

Readers of this blog know that I’ll often thank fishery managers here in New York for standing up and trying to do the right thing; I know a number of our state biologists, and they are, without exception a dedicated, hard-working bunch of professionals.  I have told people on a number of occasions that I’m proud of our folks in New York’s Marine Division, and I’ll say the same thing here and now.

For the most part, it’s not the state fisheries managers that are flawed, but the state fishery management process. 

In the federal fisheries management process, there are strict legal guidelines.  Overfishing must not be permitted.  Stocks must be rebuilt promptly, by a strictly defined deadline.  The best available science must guide management.  

If a federal bureaucrat decides to permit overfishing, or to unnecessarily extend a rebuilding period, that bureaucrat is likely to get sued.  Anyone who has any doubts about that just needs to look at Commerce Secretary Ross’ patently illegal extension of the private-boat red snapper season in the Gulf of Mexico, and then at the conservation community’s quick and appropriate response.

On the other hand, state bureaucrats are subject to no such guidelines.  After the last peer-reviewed striped bass benchmark stock assessment was released, which required fishing mortality to be reduced by 25%, there was actually a nearly year-long debate as to whether to accept it as the best available science.  

At the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board’s October 2014 meeting, some state managers actually voted against doing so.  And the same states then made a concerted effort to convince the Management Board to ignore the explicit language of the striped bass management plan, which required fishing mortality to be reduced to target levels within one year, instead arguing that a 3-year phase-in was OK (another trigger in the management plan was tripped, which required the Management Board to prepare a plan to rebuild the stock within 10 years, but that requirement was completely ignored by everyone).  

Although such states ultimately lost both votes, they clearly illustrate what can happen when state bureaucrats are allowed to interfere with decisions that should be based purely on science.

Other state actions, of course, can be even less benign.  

Without firm and legally-enforceable guidelines, various industry organizations, or just well-connected individuals who have an interest in the management of a species, can reach out to state officials, and convince them to adopt a fishery management policy contrary to scientific advice, solely for economic or political reasons.  

The resource can only suffer when such events occur, yet there is no legal bar to prevent the states from taking such actions.

That point was repeatedly overlooked at yesterday’s hearing.  While state science can be very good; state policy is a very different matter, and it can change with the political winds.  That makes such policy a significant threat to healthy fish stocks.

Funding was also an issue that came up yesterday.  

Critics of federal management often point to what they consider to be bad harvest data and inadequate scientific information being used to manage the fish, and no one should argue with the fact that better data would lead to better management actions.  

Logically, the focus such critics should be seeking higher levels of funding for the National Marine Fisheries Service and its regional science centers, not amending the current rebuilding provisions to weaken the law.  Thus, it wasn’t surprising that the questions about higher levels of funding came not from the majority members, who support H.R. 200, but from Ranking Member on the minority side.

What was surprising is that not every witness endorsed the idea.  One, a fishery manager from the State of Florida who was supporting an agenda remarkably similar to the one being pushed by the Coastal Conservation Association and other members of the Center for Sportfishing Policy, expressed only limited support on additional funding, making his support contingent on what issues such funding addressed.  I found that somewhat curious, as resolving any of the many pending issues would provide at least some additional clarity to fisheries managers, and could not do any harm.

Some other issues were addressed at some point in the day—marine monuments, climate change, the National Environmental Policy Act, among others—but the recreational issues tended to dominate the conversation.

And then it was over. 

Although the hearing lasted for close to two hours, it seemed to last for less than half of that time.  As I stepped away from the witness table, I felt as if I accomplished my job as an advocate for the proper conservation and management of fish stocks.  I walked away with respect for the members present, who discharged their responsibilities in a decorous and professional way, even when they disagreed with a particular witness (which was, at times, me).

In short, it was an honor to be there, presenting my opinions and beliefs to the people who, in the end, will make the call on whether our fisheries managers are allowed to look forward, into the future, or be dragged back toward the bad old days before the Sustainable Fisheries Act of 1996 was signed into law.

It was also a deeply appreciated privilege, and I thank the members and staff who invited me there.

THE CON IN ASMFC'S CONSERVATION EQUIVALENCY

Over the past couple of seasons, no fish has frustrated Mid-Atlantic fishery managers—and Mid-Atlantic recreational fishermen—as much as the black sea bass.

There are a lot of them out there. A benchmark stock assessment completed late in 2016 estimated that the spawning stock biomass (SSB) at the close of 2015 was 22,176 metric tons (mt), more than twice the SSB target of 9,667 mt. In response to the new stock assessment, NOAA Fisheries (NOAA) increased the 2017 recreational harvest limit by 52%.

At first, such proposed harvest increase excited anglers, who were certain that it would lead to relaxed regulations. However, as more information became available, such excitement turned to dismay, as NOAA revealed that anglers killed an estimated 4.67 million pounds of black sea bass in 2016, exceeding the proposed 4.29 million pound recreational harvest limit for 2017 by about 8%. Although that overage could have triggered more restrictive 2017 regulations, NOAA decided to keep 2016 regulations in place for another year.

Unfortunately, that wasn’t the end of the story. In February, estimated landings for Wave 6 (November/December) of 2016 finally became available. Wave 6 usually sees relatively few black sea bass caught north of Delaware Bay, but 2016 was an exception. In a number of states, particularly New York, landings were so high that they raised the annual harvest estimate to 5.18 million pounds. Status quo regulations were no longer an option; a 17.3% harvest reduction was proposed.

At that point, some anglers’ dismay turned to anger, and they unleashed their vitriol on the Marine Recreational Information Program(MRIP).

It was the wrong target. The problem wasn’t the MRIP data, but how that data was used.

The National Academy of Sciences recently found that NOAA has made “impressive progress” in implementing MRIP, which included “major improvements in the statistical soundness of its survey designs.”

Thus, MRIP offers fishery managers a valuable tool that will enable them to estimate recreational landings with a reasonable degree of precision. However, like any tool, MRIP will only prove useful when it is used in the proper manner.

In the case of black sea bass, it has not been used properly at all.

The problem lies in the fact that, for the states lying between Massachusetts and New Jersey, regulations are not set by NOAA, but by the Atlantic States Marine Fisheries Commission (ASMFC), which incorporates the concept of “conservation equivalency.”

ASMFC’s Interstate Fishery Management Program Charter (ASMFC Charter) defines “conservation equivalency” as “Actions taken by a state which differ from the requirements of the [fishery management plan], but which achieve the same quantified level of conservation for the resource under management. For example, various combinations of size limits, gear restrictions, and season length can be demonstrated to achieve the same targeted level of fishing mortality…”

The “quantified level of conservation” is, in recreational fisheries, derived solely from MRIP data. That creates a serious flaw in the “conservation equivalency” concept.

According to NOAA’s Marine Recreational Information Program Data User Handbook (Handbook), “Sampling error is inherent in all sample statistics and is a result of random variation among samples. The size of sampling error depends upon the sample size, the sample design and the natural variability within the population. As a general rule, increasing the sample size reduces the sampling error. [emphasis added]”

ASMFC, through the concept of conservation equivalency, allows each state between Massachusetts and New Jersey to set its own unique regulations for black sea bass. In practice, no two states have the same regulations, and even within a state, different regulations are in force at different times of the year, or for different sectors of the recreational fishery.

Such fragmentation by place, time and/or sector assures that the sample size depended upon to both set and to evaluate each state’s regulations will be too small to assure a reasonable level of accuracy.

Thus, the Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee has repeatedly advised against such extreme variation in regulations. Its most recent warning, issued on January 27, 2017, notes that “Complex sets of measures, including splits by mode, season, and sector, continue to be implemented, contrary to previous recommendations of the Monitoring and Technical Committees. A new approach that prioritizes consistency, from both an analytical and regulatory perspective, is recommended.”

To date, such advice has not been heeded. As a result, substantial error plagues the MRIP estimates, which in turn affects the regulation-setting process and makes it nearly impossible for fishery managers to effectively limit recreational black sea bass landings.

The Handbook explains that “In MRIP, sampling error is reported as percent standard error or PSE which expresses the standard error as a percentage of an estimate. The lower the PSE the greater the confidence that the estimate is close to the true population value.”

NOAA estimates that, throughout all of 2016, anglers in New England and the Mid-Atlantic regions harvested slightly more than 2.5 million black sea bass; the PSE for that estimate was 8.2, which is good and certainly makes the estimate adequate for management purposes.

When estimates are broken out for each of the five northern states, which account for most of the recreational black sea bass landings, the PSE doubles, ranging from 15.7 for New York to 19.4 for Massachusetts. Such data remains useful, but each estimate includes a substantial margin of error.

When state landings are broken down further into industry sectors or two-month waves, the PSE increases again, and the estimates become far less useful. The 2016 regulations that did such a poor job of controlling recreational landings were based on MRIP estimates of 2015 landings. PSEs as high as 79.9, 83.3 and 95.2 made such single-wave estimates effectively worthless, yet ASMFC allowed those very imprecise estimates to be used to calculate the conservation equivalency of even very complex management measures.

For example, New Jersey’s 2016 black sea bass rules allowed anglers to retain 10 fish at least 12 ½ inches long from May 23-June 19, then closed the season for ten days, reopened it from July 1-August 31 with the same 12 1/2-inch minimum size but just a 2-fish bag limit, closed it for another 51 days and finally reopened it for the rest of the year with a 15-fish bag limit and larger, 13-inch minimum size. Such an intricate set of regulations were based on 2015 estimates with PSEs of 15.9 in Wave 3, 26.9 in Wave 4, 55.5 in Wave 5 and 79.9 in Wave 6, levels of imprecision that virtually assured that real-world landings would have little resemblance to the “quantified level of conservation” calculated on paper.

High single-wave PSEs in Massachusetts, Rhode Island and New York helped to assure that real-world landings in those states were also far from the predictions made with pen and paper. Connecticut chose to split its black sea bass regulations by sector rather than by two-month wave, which resulted in PSEs that ranged between 21.2 and 31.9 in 2015, but soared as high as 70.2 and 101.9 in 2016, suggesting that sector-specific regulations may notresult in any more precise estimates than regulations that change from wave to wave.

Such imprecision underlies the problem with conservation equivalency. While the ASMFC publication, Conservation Equivalency: Policy and Technical Guidance Document, advises that “The [Plan Development Team] should consider stock status, stock structure,data availability, range of the species, socio-economic information, and the potential for more conservative management when stocks are overfished or overfishing is occurring when making a decision on conservation equivalency [emphasis added],” in practice states’ requests for conservation equivalency are rarely denied if a state can demonstrate, by using even very imprecise MRIP data, that its proposed regulations will achieve ASMFC’s conservation goals.

As a result, states commonly game the system, using data that they know, or at least should know, is highly suspect in order to justify regulations that, on paper, seem to meet ASMFC’s objectives, even if such regulations are unlikely to adequately restrict harvest in the real world.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) mandates that “To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range.”

Although ASMFC is not bound by Magnuson-Stevens, it would do well to take that provision to heart, applying a single set of regulations to a stock of fish wherever they may be caught and employing conservation equivalency only under extraordinary and compelling circumstances. Such a broad-based approach would best assure the accuracy of harvest estimates and the effectiveness of whatever rules are adopted.

While conservation equivalency sounds like a good idea, experience has shown that it works far better in theory than in practice.

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

BECAUSE YES, SCIENCE MATTERS

If you follow the hunting media at all, or perhaps if you just flip through the outdoor channels from time to time, you’re probably familiar with Steven Rinella, creator of the series MeatEater, which presents the hunting and fishing experience in its traditional role, as a way to provide food for the hunter/angler and his/her family.

It can be an enjoyable show, featuring high production values and remote country, but most of all a respect for the quarry and a consistent message that while the animals killed may be trophies, we should never forget that their primary role is to provide sustenance at the end of the ages-old dance between hunter and hunted.

MeatEater has evolved into a franchise with a substantial following, with a website that provides everything from past episodes of the show to a MeatEater clothing line to wild game recipes.

It also provides comment on hunting and wildlife management.  A recent op-ed that appeared there is worthy of some comment here.  Titled “Science-based Wildlife Research is a Valuable Tool for Hunters and Anglers…Let’s Treat it as Such,” and written by Brody Henderson, a writer, fly-fishing guide and part of the MeatEater franchise, it is as relevant in the salt water fishing arena as it is in the heart of the Rockies.

The op-ed supported science-based wildlife management, and emphasized the importance of such science to hunters and anglers.  But as a salt water fisherman, a few paragraphs that appeared about halfway through the piece seemed particularly relevant.  The author noted that

“whenever we share a piece of science-based research there is a predictable outcry from some hunters and anglers who’ve developed a frustrating distrust of scientific data.  The backlash from wildlife studies we share ranges from absurd conspiracy theories to secondhand anecdotal evidence that contradicts factual information.  This portion of hunters and anglers who simply don’t believe scientific data to be useful instead feel that there is a hidden agenda behind every piece of research.  But wildlife biologists aren’t in the business of cooking the books and state fish and game agencies are mandated to manage wildlife as a sustainable resource.  They really do have the best interests of their customers and fish and game in mind when they make management decisions based on the results of wildlife research studies.

”…if wildlife biologists discover that an Epizootic hemorrhagic disease (EHD) outbreak decimated a certain whitetail deer herd in Kansas then it’s likely that wildlife managers will drastically reduce doe tag numbers in that area the following hunting season.  That’s sound management, not a tricky ploy by the anti-hunting lobby to take away hunting opportunities…

“We may weigh-in on a study based on personal experience because opinions based on years of boots-on-the-ground knowledge are valuable.  But we’ll never outright ignore or refute scientific data because we feel that wildlife research only enhances our efficiency in the field…”

Such comments are notable for their common sense, and from a saltwater perspective, where all of us who have ever attended a fisheries meeting have heard the conspiracy theories, the attacks on fishery managers had the attacks on fisheries science, made so often and so loudly that they tend to do little but numb the mind.

The comments are also notable, from a salt water angler’s perspective, because they’re the sort of thing that we never read in magazines targeting the salt water angler.  Such publications rarely remind anglers of the importance of science-based fisheries management; if anything, they provide a platform to the conspiracy theorists, who are always ready and willing to attack agency decisions that lead to more restrictive regulations and reduced recreational landings.

Summer flounder tend to cause a lot of such reactions.  Biologists on the Mid-Atlantic Fishery Management Council’s Scientific and Statistical Committee determined that the population was down, and at risk of becoming overfished as soon as this year if harvest isn’t reduced.

But in response to proposed harvest reductions, an article that appeared in The Fisherman last fall complained that

“the American public is essentially being denied access to a natural public resource based on trawl surveys, mesh sizes, historic trends and sometimes arbitrary reference points.”

In other words, it was complaining that fishery managers were using science and data to manage fisheries! 

And as anyone who has ever read a stock assessment knows, the only ones who claim that the reference points used to manage summer flounder are “sometimes arbitrary” are those who don’t know how to read—or can’t or choose not to understand—such assessments.  Certainly, reference points may change as biologists’ knowledge evolves, but that doesn’t make the earlier reference points “arbitrary,” but rather just obsolete, as new information changes people’s understanding of a fish’s life history.

Still, that kind of writing tends to weaken fishermen’s faith in the management process, which might possibly be its intention but, as the MeatEater op-ed points out, still doesn’t mean that it’s the right thing to do.

On the other hand, that kind of language probably makes the magazines’ advertisers very happy.

The American Sportfishing Association, a trade group representing the fishing tackle industry, created Keep America Fishing as part of its effort to reach out to anglers and convince them to support industry positions on various management issues.  With respect to summer flounder, it told anglers that

“NOAA Fisheries is considering cutting the 2017 summer flounder quotas by up to 40%.  While all anglers support conservation, this decision seems rushed and unnecessary.

“The summer flounder fishery employs up to 10,000 people and generates over $1 billion in revenue.  A forty percent reduction would be devastating to local economies.

“The last benchmark stock assessment was in 2013.  A desperately needed update, including findings from Cornell University, is in the works.  Given this new information will provide a more accurate indication of the true health of the fishery, NOAA Fisheries should delay such a drastic and potentially catastrophic reduction until the new stock assessment is complete.”

Such statement not only ignores what the biologists most familiar with the summer flounder stock recommended, but it is wrong or misleading in several respects.

First, the summer flounder “quota” (more properly, the recreational harvest limit) was not going to be cut by 40%.  It would be cut by a still-substantial 30%.  However, because anglers overfished their harvest limit in 2016 (something that ASA/Keep America Fishing never bothered to note), the 2017 recreational catch limit would be about 40% less than actual (and excessive) 2016 landings.

While ASA/Keep America Fishing called the harvest reduction “rushed and unnecessary,” the science suggested just the opposite.  As noted above, biologists at the Mid-Atlantic Council advised that the stock hovered just above the biomass threshold, and could become overfished in 2017 if no action was taken to reduce landings.  Thus, the harvest cuts were very necessary, and had to be adopted quickly to avoid a further decline in the population.

And yes, while the “benchmark” assessment was completed in 2013, it was updated every year since, and the need for harvest reductions were based on an update completed during the summer of 2016.  There is no reason to believe that such assessment update did not reflect the “true health of the fishery,” and no guarantee that any later update would prove any more accurate than the one completed in 2016.  

To call the pending update “desperately needed” is merely an exercise in hyperbole.

But that’s how it is here on the coast.  Up in the mountains, in the lakes and the trout streams and out in the marshes where we hunt waterfowl, scientists are respected, and science-based management is generally accepted by sportsmen and in the sporting press.  

Once you get to the edge of the sea, science is held in contempt, as too many publications, endeavoring to please their advertisers, try to convince anglers that science is just a new type of voodoo, and ignorance is their best guide.

Unfortunately, to an extent, they’re succeeding.

But in the ocean, as much as on the plains, good science leads to good management.

And the best thing about science is that it remains true, whether folks believe in it or not.