WHO WILL"ACCESS" SALT WATER FISHERIES?

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) has been a success. Even its critics admit that. In 2000, 72 fish stocks were subject to overfishing; today, that number is down to 30. During the same period, the number of overfished stocks was reduced from 92 to 38. Since 2000, 41 once-overfished stocks have been completely rebuilt.

Magnuson-Stevens is a lengthy and complex law that touches on many different issues. However, most of its success can be attributed to two core principles: Fishery managers must prevent overfishing and must promptly rebuild overfished stocks, within a clearly defined time period.

Those principles, effective as they have proven to be, have been heavily criticized, for the only way to end overfishing and rebuild overfished stocks is to reduce harvest to a level that is sustainable over the long term. Such harvest reductions have cut into the short-term profits of various commercial fisheries, and have led to substantial discontent. 

They also restrict anglers’ harvests, leading to complaints from the recreational fishing industry and anglers’ rights organizations.

For a number of years, the recreational complaints were couched in terms of needing to add “flexibility” to Magnuson-Stevens. “Flexibility” is a pleasant, reasonable-sounding word, at least until you sit down for a moment and think about what that means in a fishery management context.

Magnuson-Stevens doesn’t dictate the measures used to manage recreational fisheries, and in practice, a wide array of approaches may be employed. While the Atlantic pollock fishery is managed with a single set of regulations that applies throughout federal waters, the recreational summer flounder fishery sees no consistent regulations at all. Instead, after managers establish an annual catch limit, the various states, acting cooperatively through the Atlantic States Marine Fisheries Commission, are free to set their own regulations, which apply to such states’ anglers even when they are fishing in the federal sea.

It’s hard to imagine a law being more “flexible” than that. The only thing that Magnuson-Stevens doesn’t let anglers do is overfish, or prevent the timely rebuilding of overfished stocks. But those are exactly the things that Magnuson-Stevens’ critics want the “flexibility” to do.

That was made clear in a press release issued by the Center for Sportfishing Policy (formerly known as the Center for Coastal Conservation), in support of legislation that would weaken Magnuson-Stevens by “providing limited exceptions for annual catch limits” and keep fisheries open even though overfishing would occur as a result. It was also manifest in an industry-backed report issued in 2014, titled “A Vision for Managing America’s Saltwater Recreational Fisheries,” which argued that Magnuson-Stevens’ strict stock rebuilding requirements should be amended “to provide the regional councils and fisheries managers greater latitude to rebuild fish stocks.”

Over the years, calls for adding “flexibility” to Magnuson-Stevens have not led to changes in the law, and so have become somewhat stale. Thus, recreational interests who seek the freedom to overfish and delay the rebuilding of overfished stocks have adopted a new buzzword.

Instead of trying to make Magnuson-Stevens more “flexible,” the claim to be seeking more “access” for recreational fishermen.

But when you take a good look at their arguments, you quickly realize that nothing has changed. “Access” has merely become the new “flexibility,” a euphemism for weakening Magnuson-Stevens so that fishermen can overfish and allow overfished stocks to languish.

Nothing illustrates that better than the reaction of the angling industry and anglers’ rights community last June, after the National Marine Fisheries Service (NMFS) decided to reopen the red snapper season for private boat anglers in the Gulf of Mexico.

When it issued the regulation reopening the red snapper season, NMFS admitted that such reopening “will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.” NMFS also admitted that its action “may delay the ultimate rebuilding of the stock by as many as 6 years.”

Despite those serious problems, the reopening was praised by angling and boatbuilding industry organizations, and by the anglers’ rights community.

Jeff Angers, president of the Center for Sportfishing Policy, wrote that “Anglers commend the Trump Administration and Members of Congress for hearing our calls for more access to federal waters.”

The Fishing Rights Alliance declared, “The anglers and the Gulf States will benefit greatly from the restoration of our rightful access,” while the Coastal Conservation Association said that “anglers are right to be encouraged by the willingness of the Administration and the Department of Commerce to improve recreational access to a historically robust Gulf of Mexico red snapper fishery.”

On the industry side, Michael Leonard, speaking for the American Sportfishing Association, a fishing tackle industry trade group, announced that “providing additional Gulf red snapper fishing days is a welcome relief for the thousands of tackle shops, marinas, equipment manufacturers and other businesses who have suffered from decreasing public access to Gulf red snapper in recent years.”

Thus, it is clear that increased angler “access” has become synonymous with anglers’ ability to overharvest fish stocks, and that the various advocacy groups see that as a good thing, even if, as in this case, NMFS admits that “The stock is still overfished.”

The use of “access” as a synonym for “overfishing” isn’t limited to red snapper.

Earlier this year in New Jersey, a party boat operator argued that tightened summer flounder regulations, put in place to prevent the further decline of a shrinking stock, would “deny the public access to what we know is a healthy fishery.” In North Carolina, after NMFS decided to significantly shorten the cobia fishery due to excessive recreational harvest in the previous year, two individuals who helped to convince the state to go out of compliance with the federal action and keep the state season open were praised for “the dedicated research, lobbying and hard work…done to keep our access open to this public resource.”

Thus, when a spokesman for the National Marine Manufacturers Association praised a bill currently pending in Congress, called the “Modernizing Recreational Fisheries Management Act of 2017,” because such act would “modernize the federal regulations governing access to the public’s natural resources by boaters and anglers,” it’s not hard to guess how such bill would amend Magnuson-Stevens if it were passed.

So the next question is, if Magnuson-Stevens was weakened, who would it improve “access” for?

Certainly, today’s anglers would get to keep a few more fish, at least for a while, and the businesses that currently serve those anglers would probably sell a little more bait, a few more rods, reels and such, and maybe even a few more boats and related gear.

But how long would that last, before fish stocks declined? And what kind of fishing will the children, grandchildren and even more distant descendants of today’s anglers enjoy?

In 1916, Theodore Roosevelt addressed just that issue in his work, A Book Lover’s Holidays in the Open.

“Defenders of the short-sighted men who in their greed and selfishness will, if permitted, rob out country of half its charm by their reckless extermination of all useful and beautiful wild things sometimes seek to champion them by saying ‘the game belongs to the people.’ So it does, and not merely to the people now alive, but to the unborn people. The ‘greatest good for the greatest number’ applies to the number within the womb of time, compared to which those now alive form but an insignificant fraction. Our duty to the whole, including the unborn generations, bids us restrain an unprincipled present day minority from wasting the heritage of these unborn generations.”

The similarity between those who opposed conservation measures in Roosevelt’s time, because “the game belongs to the people,” and those who would overfish and delay the recovery of marine fish stocks today, so that regulations no longer “[limit] the public’s ability to enjoy saltwater recreational fishing” is remarkable.

It may be even more remarkable that so many people have learned so little over the past hundred years, and still promote such outdated notions.

Allowing anglers to overfish, and to delay rebuilding overfished stocks, in the name of “access” may make some people happy today. But that current happiness will be paid for with the next generation’s sorrow, as they try to undo the harm that their forebears have wrought.

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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/

TAUTOG: A TEST FOR ASMFC--AND FOR US

Right now, there’s a battle going on for the hearts and minds of America’s salt water fishermen, and for the soul of the nation’s salt water fisheries policy.

On one side, there is a well-funded array of industry organizations and anglers’ rights groups, largely assembled under the banner of something called the Center for Sportfishing Policy, that would weaken protections against overfishing, and the mandate to promptly rebuild overfished stocks, so that anglers can kill too many fish while the industry tries to convince them that if they only buy bigger, faster boats outfitted with ever more effective electronics, and equip themselves with the newest highest-tech gear, they can still catch a lot of the fish that remain and go home with their coolers as heavy as ever.

They try to keep anglers from remembering times when fish were abundant enough, close to port, that you could catch all you wanted from a wooden-hulled boat, rigged with one modest-sized inboard, that might cruise at all of 12 knots on its best day…

On the other side, there are anglers who still cling to a tattered conservation ethic—the folks who fought to protect and rebuild the striped bass and the redfish, who don’t sell their tuna and are among what increasingly seems to be a minority, at least here in New York, who actually obey the law and don’t take short or over-limit fluke, black sea bass and porgy.  Conservation groups—both those focusing on ocean issues and those that generally advocate for clean air and water, and healthy, intact ecosystems—are on those anglers’ side, contributing their political savvy and advocacy networks to the fray.

Conservation advocates support the current version of the Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters.  

They argue that Magnuson-Stevens’ strict prohibition on overfishing, its requirement that fisheries managers establish strict annual catch limits, based on the best available science, and its mandate that overfished stocks be rebuilt in as short a time as possible has made it an extremely effective law that has reduced overfishing, completely rebuilt 41 once-overfished stocks and helps ensure that other stocks don’t fall into the “overfished” category.

The Center for Sportfishing Policy and its allies argue that, because of Magnuson-Stevens

“Thousands of businesses—from bait and tackle shops along the coast to retailers and manufacturers across the nation—suffer the consequences of the government’s folly.  With their time on the water choked by regulation, boaters and anglers are far less likely to purchase goods and services related to fishing.  This has a chilling impact on business.”

They also allege that

“Many of the problems plaguing saltwater recreational anglers stem from the Magnuson-Stevens Act, the 1976 law governing federal fisheries management.  Administered by the National Oceanic and Atmospheric Administration, Magnuson-Stevens does not distinguish well between recreational and commercial fishing, even though these are fundamentally different activities with vastly different economic footprints.

“That fatal flaw is evident in the law’s enforcement of ‘maximum sustainable yield’ and tonnage-based ‘annual catch limits,’ which are easily applied to the commercial sector but are impractical for the recreational sector…”

To illustrate how the Center would like to see managers address issues such as maximum sustainable yield and annual catch limits, Jeff Angers, its President, enthusiastically approved of the Commerce Department’s recent decision to extend the private-boat red snapper season in the Gulf of Mexico, a decision that the Department admits will cause recreational anglers to exceed their annual catch limit—and, by extension, the maximum sustainable yield for the stock—while delaying the stock’s rebuilding by as much as six years.

That makes it pretty clear that organizations like

the Center aren’t very concerned about science-based catch limits, overfishing or rebuilding overfished stocks, and explains why they have endorsed the management approach used by the Atlantic States Marine Fisheries Commission with respect to striped bass, where the law does not require managers to concern themselves with any of those issues.

The problem is that in the 17 years since this century began, the National Marine Fisheries Service, following the dictates of Magnuson-Stevens, has managed to rebuild 41 stocks, while ASMFC, using its more “flexible” management approach, hasn’t rebuilt any (note that menhaden may be listed as a “rebuilt” stock, but the change in status from “overfished” to “not overfished” resulted from a change in the methodology used to assess the stock in 2015 compared to the methodology used in earlier assessments, rather than from the efficacy of management measures).

At its annual meeting in October, ASMFC’s management approach will face its next test, as it decides on new management measures for tautog (also known as “blackfish”).

Tautog is a perfect test to determine whether an ASMFC-like management approach can successfully rebuild a recreational fishery; in 2015 (the last year for which commercial data is available), NMFS’ commercial landings data and recreational landings estimates show that close to 90% of the tautog landed are caught by recreational fishermen.

So far, the evidence doesn’t give the ASMFC approach much support.

ASMFC completed its first tautog management plan in 1996—21 years ago.  

In that plan, it acknowledged that tautog’s life history made the fish vulnerable to overfishing, that local overfishing was already taking place, that biologists lacked a lot of data needed to manage the species and that the fishery was largely unregulated by the states.  

It found that

“Tautog resources in the region from Massachusetts to New York are overexploited and at a low biomass level.  There has been an apparent increase in fishing mortality, and fishing mortality appears to be well above any candidate biological reference point for this long lived and slow growing species.”

ASMFC determined that the fishing mortality rate had to be sharply reduced, and set the target at F=0.15.

Despite the poor health of the stock, ASMFC, not bound by Magnuson-Stevens’ mandates to end overfishing and timely rebuild overfished stocks, did not immediately require the states to reduce fishing mortality to the 0.15 target.  

Instead, because fishing mortality at the time was so high—one survey estimated it at 0.58 for the entire New York-Massachusetts region, another reported that it was 0.71 in Rhode Island, while a third estimate, performed by the Stock Assessment Review Committee, set it at 0.79—and a very large reduction in landings would be needed to achieve the target mortality rate, ASMFC was more “flexible” than Magnuson-Stevens would allow,

“taking an initial reduction for two years to a target of F=0.24.  Although the specific landings reductions in each state may vary, on a coastwide average, this step requires a 55 percent reduction in fishing mortality…Under the plan, states are allowed the flexibility to develop a management scheme that will meet the needs of their particular fishery and produce the necessary reductions.”

After that,

“stock status and abundance will be evaluated, and the steps needed to reduce fishing mortality to the F=0.15 target will be identified.”

Without the incentives of annual catch limits and accountability measures for states that filed to achieve the needed reductions, the process was doomed from the start. 

In 1997, ASMFC’s Tautog Management Board adopted an addendum to the management plan which gave the states two years just to reduce fishing mortality to 0.24, and allowed them to fish at that rate for another two years before reducing fishing mortality to the target F=0.15, allowing overfishing to occur for four years rather than two.

In 1999, the Management Board punted again, approving a new addendum that allowed overfishing to continue through 2002.

That sort of thing just may not happen under Magnuson-Stevens, but at ASMFC, it is just fine.

In 2002, the Management Board adopted a third addendum.  

The states hadn’t come close to achieving even the interim fishing mortality rate of 0.24, much less the F=0.15 target.  

According to a new stock assessment, fishing mortality was still very high, estimated at 0.41.  However, the same stock assessment also suggested that the target fishing mortality rate could be raised to F=0.30.  Even though the stock was still in poor shape, that became the new target, and states were instructed to adopt regulations to achieve it.

Five years later, in 2007—eleven years after the initial management plan was completed, and one year past the point where the tautog stock, if managed under Magnuson-Stevens, might have recovered—tautog still weren’t doing too well.  In what had become the fourth addendum to the management plan, ASMFC acknowledged that

“The trend in total stock biomass and spawning stock biomass has been generally flat and at low levels since 1994.”

Recognizing that the increase in the target fishing mortality rate wasn’t going to rebuild the stock, the Management Board backtracked a bit and set a new target at F=0.20.

Flexible management continued.  It still didn’t work.  Without any sort of annual catch limits or accountability measures, the states just had no incentive to impose what would clearly be unpopular harvest restrictions, so they gamed the system to concoct regulations that looked good on paper, but failed in the real world.

In Addendum VI to the Interstate Fishery Management Plan for Tautog, issued in 2011—now fifteen years after ASMFC first tried to rebuild the stock—ASMFC admitted that

“Tautog harvest is controlled through state regulations that are designed to restrain F at or below the F_target.  States must implement regulations to achieve the F_target but are allowed to select seasons, bag limits, quotas, etc., to achieve the target as best meets their individual needs.  An SSB_target was established in Addendum IV as a metric to evaluate the tautog population and the effectiveness of management measures…

“[T]he 2011 stock assessment update found that the stock continues to be overfished (SSB₂₀₀₉=10,553 mt versus SSB_target=26,800 mt), with overfishing occurring (F=0.38 versus F_target=0.20).”

By then, the message seemed pretty clear:  No annual catch limits plus no accountability measures equals no management discipline and no recovery.

Things came full circle in 2015, when a new benchmark stock assessment determined that the fishing mortality rate really should be 0.15, the same mortality rate suggested in the first management plan, completed nineteen years before.  However, even though they had nineteen years to get there, the states hadn’t reduced fishing mortality to anything close to that figure.  Coastwide, F=0.28.

Now, ASMFC is gearing up for another try.  The Tautog Management Board is debating a new Amendment 1, the first full amendment to the management plan.

Tautog don’t migrate much, so this time, managers are setting up four different management regimes for four different regions, to match the conditions that exist in different places along the coast.  Different biomass and fishery management targets would be set for each region.

It turns out that twenty years’ delay in rebuilding tautog stocks did particular harm in Long Island Sound, where a 47% reduction in harvest would be required to have even a 50% chance of achieving Ftarget by 2021.  For recreational fishermen in New York, that would mean cutting the bag limit from 4 fish to 1.

That’s a big cut, and the suggestion didn’t go over well.  

When ASMFC held a meeting in New York to obtain comments on the new Amendment, the attendees formed an unruly mob that showed no respect for the ASMFC and New York State staffers attending, nor for the process itself.  Like spoiled children, they merely wanted to get their way, without any discussion and without thought for the consequences.

Yet the tactic seems to have worked, because at ASMFC’s October meeting, a decision on Long Island Sound regulations wasn’t made, and proposals have since been put on the table for landings reductions that wouldn't even have a 50-50 chance of achieving the target mortality rate.

Under Magnuson-Stevens, that couldn’t happen; whatever measures adopted would have had to have at least an even chance of rebuilding the population within ten years.

But at ASMFC, it’s 1996 all over again.  Managers seemingly still haven’t learned that you can’t overfish a population back to health. 

But without rebuilding deadlines, annual catch limits, accountability measures or any legal requirement that requires rebuilding plans to actually succeed, they will probably try, and kick the tautog can down the road for another few years, in the hope that a big year class of fish—which even a small population can sometimes produce—might bail them out for a while.

And that is the test that tautog will give ASMFC.

Will they do the right thing to rebuild the stock, after 21 years of abject failure?  Or will they dither again, embracing half-measures that aren’t effective, but also aren’t so controversial?

In the end, that is the test that tautog will give all of us, 

particularly our lawmakers in Washington.

Do we want our fish managed under a law that prevents overfishing, and has successfully rebuilt more than forty once-overfished populations?

Or do we want them all managed like tautog?

LOOKING BACKWARD ON MAGNUSON-STEVENS

It’s impossible to successfully argue against the fact that the Magnuson-Stevens Fishery Conservation and Management Act is, at this very moment, the most successful large-scale fishery management law in the world.

When this century dawned, 92 fish stock were overfished, and 72 were experiencing overfishing.  Thanks to Magnuson-Stevens, the number of both overfished stocks and stocks experiencing overfishing has since dropped sharply.  At the end of 2016, just 30 stocks were experiencing overfishing, and only 38 were still overfished.  41 once-overfished stocks have been completely rebuilt.

That’s what success looks like.  No other fishery management approach, in the United States or elsewhere, can claim anywhere near that level of positive outcomes.

Even so, there are people who want to weaken Magnuson-Stevens.  Many are affiliated with various anglers’ rights groups, such as the Recreational Fishing Alliance and the similar, if larger, Coastal Conservation Association, which want their members to be able to kill more fish when they venture out, even if biologists believe that landings are already at or above prudent levels. 

Others, such as the American Sportfishing Association, which represents the fishing tackle industry, and the National Marine Manufacturers’ Association, sell their products to anglers, and argue that a weakened Magnuson-Stevens that allows anglers to kill (although they seem to prefer the euphemism “access”) more fish will lead to greater economic returns.

Since such organizations can’t deny the law’s current success, they have to make “softer” arguments that appeal to legislators’ and others’ emotions, rather than to their intellect.

One of their favorite pitches is to toss salt water recreational fishermen into a bigger pot that holds sportsmen of every stripe, and then argue that sportsmen are “the original conservationists.”  That story line was on exhibit recently, in testimony provided at a hearing held by the Senate Committee on Science, Commerce, & Transportation’s Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard, which considered Magnuson-Stevens.

It was most developed in the testimony of Chris Horton, the Fisheries Program Director of the Congressional Sportsmen’s Foundation.  The Foundation is a member of the Center for Sportfishing Policy, an umbrella organization composed of various anglers’ rights and industry trade associations that is focused on weakening Magnuson-Stevens (and Jeff Angers, the President of the Center for Sportfishing Policy, sits on the Foundation’s board, creating an incestuous relationship with the potential to give birth to true monstrosities). 

In his testimony, Horton declared that

“Around the turn of the last century…[s]tates began establishing natural resource agencies to help recover and manage fish and game populations for the benefit of the public.  However, it soon became clear that license fees alone were not enough to fund habitat restoration and management efforts…In 1950, the Federal Aid in Sport Fish Restoration Act…implemented a new 10% excise tax on fishing rods, reels, related components and fishing tackle.  In 1984, [an] amendment to the Act, again led by anglers and the sportfishing and boating industries, expanded the list of taxable items to include marine electronics, trolling motors, import duties on fishing tackle, yachts and pleasure boats, and also added a motor boats fuels tax, significantly expanding the revenues apportioned back to the states for fisheries and aquatic conservation.”

That’s all true, but it’s probably worthwhile to note that the initial law that created the excise tax on fishing tackle was passed in 1950—67 years ago, and well before most of today’s salt water anglers was born—which makes it difficult to rationally attribute the conservation impulses of the folks who fought for the law with the people affected by Magnuson-Stevens today.  Even the last amendment to the law, made in 1984, was adopted more than 30 years ago. 

So it’s difficult to connect the adoption of the excise taxes on various items purchased by recreational fishermen with salt water anglers’ current attitudes.

More recently, when states asked their salt water anglers to pitch in and help fund conservation efforts by buying a salt water fishing license, the fishermen’s response was not one of universal enthusiasm.  While some anglers, in some states, recognized the benefits a license could bring, there was also substantial opposition.

In New Jersey, Jim Donofrio was (and still is) Executive Director of the Recreational Fishing Alliance, a group long opposed to the conservation provisions of Magnuson-Stevens.  When New Jersey considered adopting a salt water fishing license about ten years ago, Donofrio—and RFA—were strongly opposed to that, too.  A New Jersey fishing club reported at the time that

“Anglers should fight a saltwater fishing license because the money raised will not be used to help recreational fishing.

“That was the gist of a speech Saturday afternoon by Executive Director Jim Donofrio of the Galloway Township-based Recreational Fishing Alliance, or RFA.

“Donofrio, speaking to the Strathmere Fishing & Environmental Club at its annual legislative meeting here at the Strathmere Firehouse, promoted a state lottery once a month to raise money for marine conservation and possibly a special license plate that would feature a striped bass to raise money.

“Donofrio warned the group that a plan to create a state saltwater fishing license to gather more fishery data is really just a way to raise funds.  Donofrio said better data is needed but it can be gathered at no cost to the anglers.”

No fee-based registration was ever adopted in New Jersey.

In my home state of New York, there was also resistance to a salt water fishing license.  Anglers who understood the need for adequate agency funding generally supported the idea, but it ran into stiff opposition from the state’s RFA chapter, as well as from many tackle dealers, who feared that license fees would cut into sales.  The state actually did implement a license for a brief time, but it was quickly repealed.  The primary proponent of the repeal legislation, State Senator (now Congressman) Lee Zeldin celebrated the license’s demise, saying on his website

“In recent days, during the Budget negotiations, there have been productive discussions between leaders from the Senate, Assembly and Governor’s office with regards to the repeal of the Saltwater Fishing License Fee…

“This is a piece of legislation that is very important to the needs of my district.  I am very pleased to announce that there is a negotiated three-way agreement to replace the Saltwater Fishing License Fee with a free registry…

“I would like to thank not only my Senate and Assembly colleagues who spent hours listening to me and working with me, but I would also like to thank the thousands of fishermen, including the Recreational Fishing Alliance, who called, wrote, faxed and signed our petition…

“I cannot think of a better way to start the new fishing season off than with this great news.  It’s a bright, sunny day for saltwater fishermen.”

So whatever anglers might have thought back in 1950, or even in 1984, it seems that a significant number of today’s anglers, at least in some parts of the country, are not quite as willing to pitch in and support conservation as Chris Horton suggests.

In his testimony, Horton noted that

“Recreational anglers have long recognized that to have healthy fish populations to afford numerous encounters with fish and an enjoyable day on the water with family and friends, it is essential to properly manage and conserve the resource, not just for sustainability, but for abundance.”

His comment about the need for abundance is completely correct.  But then he delves into the past again, saying

“That is why we have willingly invested, both money and time, in fisheries conservation for nearly a century.”

I wasn’t around a century ago, so I can’t speak about that.  I was around in the late 1970s and early 1980s when the striped bass stock collapsed, and I saw anglers come together back then to conserve the resource.  And we don’t even have to go back that far.  I was around about ten years ago, when Pat Murray, then Vice President of the Coastal Conservation Association, and now its President, penned an essay called “The Last Fish,” in which he wrote

“The ‘resource first’ ethic that drove the early saltwater conservation movement is slowly being corrupted by a doctrine of ‘fishermen first.’  It is hard to imagine that we have come so far in marine conservation and this thinking is still such a seductive part of the fishing ethic of some recreational anglers…

“Some of the very people who helped push the ‘resource first’ ethic are now arguing for greater poundage and more liberal limits, even in the face of troubling stock assessments.  They cry that it will limit anglers’ interest and may damage the industry, but won’t killing the last fish not decisively kill the industry?

“…Among many of the seemingly theoretical scientific, political and managerial complexities, there are many parts of modern day fisheries management that involve making decisions on the economic livelihood of real people.  Real jobs and real paychecks can hang in the balance.  But if the resource is not put first, the outcome will always be wrong.  No matter how politically and emotionally appealing it is to assume the ‘fisherman first’ ethic in a tough fisheries decision, the problem invariably comes back, and when it does, it usually has bigger horns and sharper teeth.

“…I do not believe that we have an ethical crisis in recreational fishing.   There are many more examples of good conservation ethic over a destructive consumption ethic, but we have to remember that the unselfish spirit that started this conservation movement is one of the keys to its success…

“Do we want the last fish for ourselves, or do we want to conserve it to make a future for generations to come?”

 Pat Murray was dead on target when he wrote those words, which seem to clearly support Chris Horton’s position.

But, again, he wrote them ten years ago, and there is more than a little bitter irony in the fact that times have changed.

Just two months ago, Murray heralded the introduction of legislation that would weaken the conservation and stock rebuilding provisions of Magnuson-Stevens, in order to allow anglers to escape the strictures of science-based annual catch limits and prompt stock rebuilding times, the very essence of elevating a consumption ethic above the health of the resource.

And the organization that he leads, the Coastal Conservation Association, hailed the Commerce department decision to reopen the private-boat red snapper season in the Gulf of Mexico, even though the National Marine Fisheries Service admitted that, because of such opening “the private recreational sector will substantially exceed its annual catch limit,” and the “approach may delay the ultimate rebuilding of the stock by as many as 6 years.”

So Chris Horton is probably right, and anglers probably were active conservationists, back in the 1900s.  And judging from Pat Murray’s work, “The Last Fish,” most might have been conservationists ten years ago—but things were already beginning to change.

Now, there are still many anglers who believe in conservation.  I include myself in their number. 

But we are kidding ourselves if we believe that there aren’t a lot of anglers more interested in killing fish now than in leaving a few for the future.  Inspired by the kind of rhetoric issuing out of groups like the Center for Sportfishing Policy, they are willing to set aside science-based management in favor of a bigger kill.

And that’s why we need a strong Magnuson-Stevens.  To address conditions in today’s fishery, not yesterday’s.  To be sure that the last fish is never at risk of capture, and to leave future generations with fish stocks at least as healthy as those we have known.

IMPOSING REAL BOUNDS ON THE PARTY BOAT FLEET

Ten or twelve years ago, I was down in Islamorada, and jumped aboard a local party boat for the day.

It wasn’t peak season.  

On the plus side, that meant that there weren’t many people on board the boat, and we didn’t have to jostle for a favored stern spot.  On the downside, one of the reason that there weren’t many anglers was that there weren’t too many fish, at least compared to other times of the year, and while the fishing was great, the catching was a little slow.

The boat anchored uptide of a patch reef, and tossed over a few balls of chum.  It wasn’t long before the water a few dozen yards astern began to take on a shimmering, golden hue as a swarm of yellowtail snapper, responding to the chum, rose up off the bottom.

They weren’t big fish.  Patch-reef yellowtail, living on pieces of bottom near popular ports, are fished pretty hard.  “Flag” yellowtail, as the big fish are called, are almost impossible to find there; most are a couple of inches above or below the minimum legal size.

Considering the conditions, we started out OK.  The first yellowtail of the morning are always naïve, and I was able to put a couple of half-decent fish on ice before the panicked struggles of our hooked snapper started making the rest of the school spooky.  Cero mackerel passed by, and some of them came aboard.  But as the morning wore on, the fishing inevitably slowed.

And what happened then was, perhaps, inevitable as well.

A tourist in the starboard stern corner caught an undersized yellowtail snapper.

That, in itself, was nothing new; we had been catching shorts all morning, and had been quickly dropping them back over the side.  But the tourist wasn’t following the program.  Instead of releasing his fish, he was walking it over to the cooler.

And that’s when the captain of the boat got involved.

“Where are you going with that fish?  It’s too small.  Put it back.”

That didn’t go over too well with the tourist, who responded, in the unmistakable accent of the New York Metro region,

“It’s my fish, and I can do what I want with it.”

The fact that keeping the fish was illegal seemed to be lost on the tourist, but not on the captain, who was beginning to get a little annoyed.

“I’m not going to lose my license over your fish.  Put it back in the water.”

Which led to the immediate response of

“I paid to be on this boat, and I can do what I want with my fish.”

At that point, the captain pulled out his wallet, took out the amount of the tourist’s fare, and said

“Here’s your money.  Get off the deck.  Go sit in the cabin, and never come out on this boat again.”

Because that’s how they do it down South.  I’ve fished for snapper on various party boats in the Keys and the Gulf of Mexico, and have found that the captains and mates down there take pains to obey the laws, largely because the boat can be in legal jeopardy if they do not.  And the snapper-grouper management plans don’t permit fish to be filleted at sea; nothing gets cut until it’s back at the dock, making undersized fish a lot easier for law enforcement officers to find.

It’s a little different up here.

That was illustrated recently when enforcement officers from the New York State Department of Environmental Conservation boarded the party boat Fin Chaser at the dock at Star Island Marina in Montauk.

According to a report by Capt. Gene Kelly, who maintains a website dedicated to Montauk fishing,

“One of Montauk’s headboats pulled into the slip on Thursday to be greeted by a couple of guys in the green uniforms of the DEC.  They boarded the boat and started to inspect the anglers’ coolers, finding that the first one had 96 seabass, which is 93 over the legal limit.  As they continued the inspection on the starboard side, there was a massive fish kill on the port side, with dead seabass floating all over the place, and anglers who had not caught anything during the trip filing off.  After the dust cleared, there were over a dozen coolers left with no owners that held over a thousand seabass.  Since no one claimed them, ownership appeared to belong to the captain and owner of the boat.  Stay tuned.”

Those who kept up with the story soon discovered the critical nuance.  An article that appeared about a week after Capt. Kelly’s report, in the Easthampton Star, noted that

“The party boat’s customers were cited for possessing too many black sea bass and porgies, undersized black sea bass and summer flounder, and for failure to stop dumping [fish overboard] upon command.

“[The captain was] issued a violation for an incomplete trip report.  Seven other violations, each carrying a penalty of up to $250, were issued, as well as a misdemeanor charge of failure to stop dumping upon command, for which the penalty is up to $1,000 and imprisonment of up to one year.

“Environmental conservation law does not hold the owner or captain responsible for the actions of anglers on his vessel, the [Department of Environmental Conservation] spokesman said, unless officers witness them assisting with or taking responsibility for what is occurring.”

And that’s a problem, because as my story from Islamorada demonstrates, a conscientious captain is the fish’s first line of defense; he or she is the person best positioned to ensure that fishery laws are obeyed.

The problem is, the captain is always torn between conflicting motivations.  He may be a decent guy, who honestly doesn’t like to see fares poaching fish.  He may be perceptive enough to realize that overharvesting fish today may very well hurt his business in the future.  At the same time, there is a very good chance that if customers, such as the tourist and would-be poacher down in Islamorada, are told that they have to release a fish that they want to keep, they’re not going to come back on the boat any more.  And that’s a threat to future business, too.

Thus, you have the situation that a party boat mate out of Freeport, New York threw in my face one evening, when I questioned why he and the rest of his crew allowed passengers to chronically overfish the small bluefish that were than crowding into the bay.

“You think that I’m going to tell some [racial epithet deleted] that he can’t keep more than 10 fish?  That’s the difference between me making $20 and $200 in tips in a night!”

So it’s pretty clear that if regulators want the captains and crews to stop letting their passengers ignore the law, they’re going to have to give those folks some sort of incentive.

In California, for example, violations of recreational fishing regulations aboard party boats became so common that enforcement authorities conducted a year-long undercover operation targeting the captains who abetted and encouraged their passengers to violate the law.  According to the Los Angeles Times,

“Skipper Rick Powers was handcuffed by a phalanx of officers and charged with one count of felony conspiracy to violate Fish and Game laws and six misdemeanor infractions that include using illegal hooks, exceeding catch limits and keeping prohibited species…

“Later this week, state officials said, misdemeanor complaints will be filed against 13 other party boat skippers in nine counties…on a host of additional allegations that involve wounding pelicans and seals, fudging records to avoid catch limits and catching fish out of season.

“…’Wardens have been overwhelmed with complaints about party boats,’ said Warden Bob Aldrich, based in Bodega Bay.  ‘Guys who are over limit for fish get encouraged to continue fishing, and their catch is distributed to other passengers who were seasick’ or didn’t catch their limit, he said.

“No recreational anglers were targeted because they are often unaware of state regulations, officials said.  Instead, wardens went after the people who they believe should have known  better:  boat captains and crews.

“…The most troublesome violations, wardens say, include exceeding limits on the number of fish, catching undersized fish and then masking their size by filleting them before the boat returns to the dock; and [salmon-specific gear regulations].  [emphasis added]”

Some of those violations are unique to California and its particular mix of fish species, but plenty of them are going to be familiar to anyone who ever fishes from a party boat in New York or New Jersey, and some of them fit right in with the allegations arising out of the Fin Chaser incident.

If New York has a real desire to prevent such violations from occurring in its for-hire fleet, it should be making a serious effort to impose similar liability on for-hire vessels’ captains and crews.  Such liability shouldn’t be onerous—it’s practically impossible to prevent a passenger intent on poaching from secreting a couple of illegal fish into a lunch bag or other container—but if the number of illegal fish exceeds, for the sake of example, 20% of the overall catch, a presumption that the captain and crew are complicit is not unreasonable.  

After all, boats are required to submit accurate vessel trip reports for every trip made, so “I didn’t know what people caught” is not a viable excuse.

And, looking at harvest estimates provided by the National Marine Fisheries Service, it seems that such a 20% figure might cause quite a bit of grief to folks who presently consider themselves above the law. 

Using 2016 as an example, about 40% of the black sea bass harvested and sampled on party boats were less than 15 inches long—which was and still is the size limit (note that NMFS gives the measurement in terms of “fork length” and black sea bass’ tails are not forked, so it’s possible that the 40% number is a little high, depending on how the fish are measured, but even half of that would hit the theoretical 20% minimum).

That number falls to a smaller, but still significant 27% of undersized summer flounder (the same caveat on fork length applies), but jumps to 47% of scup being less than 9 inches long (the size limit is 10 inches, but scup do have forked tails, so an allowance was made for that) and then goes back down to 20% of striped bass measuring less than 26 inches (the size limit is 28 inches, but again, a generous 2-inch allowance was made for the fork in the tail, and assure that I wasn't overstating the scope of the illegal harvest).

So yes, party boats take a lot of short fish—and one has to remember that the numbers above probably reflect the minimum level of lawlessness, as anglers don’t have to let NMFS samplers measure their undersized fish, and black sea bass and scup, at least, can still be legally filleted at sea, to hide the number of illegal fish actually taken.

So making boat crews responsible for illegal activity on their vessels is a needed first step, but it is only the first one.  Requiring crews to retain the “racks,” the intact heads, tails and skeleton of filleted fish, is a good next step, to reduce the number of undersized fish filleted at sea; in New York, such rack retention is already required for striped bass and summer flounder.  Requiring all fish to be filleted on shore is an even more effective measure, that prevents racks from a previous trip to be retained to cover the inevitable shorts kept by passengers (a practice that is currently illegal but, reportedly, far from unknown).

Even so, none of the measures restricting filleting at sea would have prevented the Fin Chaser incident, as many of the illegal fish landed were still intact.  Thus, it falls back on the need to adopt rules that make violating the law too painful for the vessel and crew to risk.

Fines alone won’t do that, and in the real world, no judge is going to impose jail time for some undersized or over-limit fish, absent a long history of egregious violations.  

In the over-all scheme of things, when overworked and understaffed law enforcement agencies have difficulty covering all of the docks were violations might occur, the odds of being caught and fined are fairly remote.  That makes even a $1,000 fine just another cost of doing business.

Take the Fin Chaser as an example.  An article on the incident published in Newsday states that the boat can carry ‘more than 50 passengers” and charges each one $90 for a porgy and black sea bass trip; it was allegedly carrying 46 passengers on the day that the enforcement agents came aboard. 

But even if it only carried 40 passengers each day, the fares collected would equal $3,600—a significant sum.

Far from all of that is profit.  The boat must pay for fuel and bait, dock space, insurance and maintenance of the boat and fishing gear.  The deck crew largely works for tips, but probably also receives some fixed income to keep the boat from losing them if weather prevents sailing for a few days in a row  Even so, $1,000 spread out across the entire season—even a few fines of that size—don’t amount to much of a deterrent.

And as I note earlier, jail isn’t a realistic option .

So what is needed is a sanction that will have some teeth, and can realistically be imposed.  The answer is something that we see used far too seldom in the for-hire world, the imposition of administrative sanctions.  That basically means that, after providing the operator an opportunity to be heard, either NMFS or the State of New York—preferably both—suspend the permits the boat needs to operate for an appropriate period of time.

While a $1,000 fine might not mean very much, being tied up to the dock for two weeks during the peak of the season is going to hurt, when no income is coming in but the fixed expenses for dockage, insurance and crew are still piling up.

And the boat lying empty at the pier would provide a good example to other captains and crews thinking about crossing the line, reminding them why countenancing illegality is just not a good idea.

Right now, there’s just too much illegality going on.  It’s time for NMFS and the states to take meaningful action to get it to stop.