Thirty-five
years ago, the striped bass population had bottomed out. Bass fishing had, too.
Things had gotten so bad that one
group of anglers unsuccessfully tried to have striped bass listed under the
Endangered Species Act.
Fishery managers thought that they knew how to restore the
population. In 1981, the Atlantic
States Marine Fisheries Commission broke new ground when it released what it
designated “Fisheries Management Report No. 1,” the comprehensive, 300-page
document that constituted the Interstate
Fishery Management Plan for the Striped Bass.
The problem was that, even though ASMFC thought that it new
how to bring back striped bass abundance, it had no way to do so. Striped bass were managed by the states;
ASMFC served in a purely advisory role.
It had no way to enforce its recommended management measures.
And without a single, coastwide approach to striped bass
restoration, the effort was probably doomed.
Some states, including Connecticut,
Rhode Island, Maryland
and Virginia, instituted moratoriums on harvest, while others
failed to implement even the less-stringent management measures recommended by
ASMFC.
As a result of such checkerboard of state regulations, a
striped bass migrating from its summer feeding grounds off New England to
wintering areas off North Carolina swam through waters where it was completely
protected, and waters where it had no meaningful protection at all.
Heading north, a big female striper could safely pass
through the moratorium-bound waters of Connecticut and Rhode Island (and
New York, although the moratorium there was ostensibly based on PCBs contaminating
bass from the Hudson River, and not on the dire state of the stock), but would
be vulnerable once it reached Massachusetts, which kept its recreational and
commercial fisheries open. Heading
south, the same fish—assuming that it survived the summer—would cruise safely past
Maryland and Virginia, only to find itself in peril from trawls, gill nets and
haul seines as soon as it crossed the North Carolina line.
As a result, conservation measures imposed in one state were
merely keeping bass alive long enough for them to be killed somewhere
else. The stock as a whole showed no
sign of recovery.
In order to solve the problem, Congress
passed the Atlantic Striped Bass Conservation Act in 1984. That law contained a number of different
provisions, the most important of which gave ASMFC the authority to enforce its
striped bass management measures; should any state fail to fall into line with ASMFC’s
program, ASMFC was empowered to find that state out of compliance, and report
it to the Secretary of the Interior and Secretary of Commerce. If they agreed with the out-of-compliance
finding, they were required to impose a moratorium on the offending state’s
striped bass fishery, shutting down all landings until it adopted the ASMFC
management plan.
The law worked as intended.
ASMFC adopted tough rebuilding measures in its Amendment 3
to the Interstate Management Plan for Atlantic Striped Bass, measures
so restrictive that they effectively prohibited the harvest of all striped bass
spawned in and after 1982. Such measures
were successful—as strict measures usually are—and in 1995, the striped bass
stock was deemed fully recovered.
In fact, the
law worked so well that, in 1993, Congress passed the Atlantic
Coastal Fisheries Cooperative Management Act, which gave ASMFC similar authority
to enforce the provisions of all of the fishery management plans for all of the
species that it manages.
Unfortunately, while the enforcement provisions of the
Atlantic Coastal Fisheries Cooperative Management Act were similar to those of
the Atlantic Striped Bass Conservation Act, they were not identical, and last
year, that caused a problem.
“Upon receiving notice from the Commission…of a negative
determination regarding a coastal State, the Secretaries [of Commerce and the
Interior] shall determine jointly, within 30 days, whether that coastal state
is in compliance with the Plan and, if the State is not in compliance, the
Secretaries shall declare jointly a moratorium for fishing for Atlantic
striped bass within the coastal waters of that coastal State. In making such a determination, the
Secretaries shall carefully consider and review the comments of the Commission
and that coastal state in question.
[emphasis added]”
Pursuant to the striped bass act, the Secretaries have no
discretion; if a state is out of compliance, a moratorium must be declared.
That’s not the case with the Atlantic Coastal
Fisheries Cooperative Management Act, which provides that
“Within 30 days after receiving a notice from the Commission
[that a state is not in compliance] and after review of the Commission’s determination
of noncompliance, the Secretary [of Commerce] shall make a finding on—
(1) whether the state in question has failed to
carry out its responsibility under [the relevant fishery management plan]; and
(2) if
so, whether the measures that the State has failed to implement and enforce are
necessary for he conservation of the fishery in question.
…Upon making a finding…that a State has failed to carry out
its responsibility under [the relevant fishery management plan] and
that the measures it failed to implement and enforce are necessary for conservation,
the Secretary shall declare a moratorium on fishing in the fishery in question
within the waters of the noncomplying State…
[emphasis added]”
In other words, pursuant to the Atlantic Coastal Fisheries
Cooperative Management Act, mere noncompliance with an ASMFC management plan is
not enough to trigger a moratorium; the law allows the Secretary of Commerce to
substitute his/her own judgement for that of the fishery managers at ASMFC, and
excuse a state’s noncompliance if, in the Secretary’s view, such noncompliance
doesn’t threaten the health of the stock of fish in question.
Unfortunately, the Secretary isn’t required to consider whether
excusing noncompliance threatens the health of the entire cooperative
interstate management system. That
became apparent last July, when Commerce Secretary Wilbur Ross sided with the
State of New Jersey, allowing it to maintain a recreational summer flounder
fishery governed by regulations that weren’t up to the ASMFC standard by
finding that the New Jersey regulations adequately conserved the summer
flounder stock.
“The Commission is deeply concerned about the near-term impact
on our ability to end overfishing on the summer flounder stock as well as the
longer-term ability for the Commission to effectively conserve numerous other
Atlantic coastal shared resources…
“We are very much concerned about the short and long-term
implications of the Secretary’s decision on interstate fisheries
management. Our focus moving forward
will be to preserve the integrity of the Commission’s process, as established
by the Atlantic Coastal Act, whereby, the states comply with the management
measures we collectively agree upon…”
It didn’t take long for the negative consequences of Ross’
decision to appear in the management process.
In November, ASMFC debated Amendment
3 to the Interstate Fishery Management Plan for Atlantic Menhaden. Going into the meeting, there was a lot of public
support—it would not be an exaggeration to say overwhelming public support—for interim ecological reference points
that would consider menhaden’s role as a forage species when setting annual
quotas. There
was also substantial support for setting the 2018 menhaden quota at the same
level set for 2017, even though a big Virginia-based industrial harvester wanted
to see a substantial increase. All
indications were that ASMFC’s menhaden management board was going to vote for the
interim reference points, and probably against any change in the overall quota.
To the surprise and dismay of just about everyone except
Virginia and the industrial fishery, just the opposite happened. There were a lot of reasons things didn’t go
as expected, including a last-minute science update that added a lot of
uncertainty into the decision. However, Ross’
support for a noncompliant New Jersey certainly played a role. As described by someone who sits on the management
board,
“…given the most recent and ‘best’ available science—a single-species
stock assessment that doesn’t account for predator needs in the slightest, and
that indicates the board could increase the quota by up to 40% without ‘overfishing’—we
stood little chance of achieving that goal.
Particularly in light of the fact that the state of VA was threatening
to go out of compliance (i.e. disregard an ASMFC agreed-upon quota) if
we didn’t increase the quota. Whether or
not VA was bluffing, who’s to say
[emphasis added].”
Even a bluff that Virginia might go out of compliance was
enough to intimidate a number of management board members, because if the
Secretary supported another out-of-compliance state, which very well might have
happened, ASMFC would have been rendered effectively toothless, and the
cooperative interstate management system that had worked for more than two
decades would have lost any effectiveness that it might still retain.
Yet the possibility of Virginia going out of compliance
remains. At
the November meeting, the menhaden management board did lower the cap on the
reduction fleet’s harvest in Chesapeake Bay by more than 40%; Virginia’s
legislature, which is solely responsible for managing the state’s menhaden
fishery, refused to incorporate such reduction into the state’s laws, setting
up a possible noncompliance situation that the management board will
have to address when it meets again on May 2nd.
Although nothing is certain, there are a lot of rumors going
around that the management board, again afraid of a reversal by Commerce, is
trying to avoid a confrontation with Virginia.
And that’s not the only noncompliance situation that ASMFC
may be facing.
After ASMFC made some unfortunate decisions on black sea
bass allocation and management last February, decisions based largely on
politics and voting power rather than on the current distribution and abundance
of the black sea bass stock, the four northern states—New York, Connecticut,
Rhode Island and Massachusetts—will be forced to reduce their recreational
landings by nearly 12%.
No one in the four states is happy with that outcome, and
the states are going to appeal the Summer Flounder, Scup and Black Sea Bass
Management Board’s decision to ASMFC’s entire policy board. However, while the three New England states
seem reluctantly willing to abide by the policy board’s decision, a
small but belligerent component of New York’s recreational fishing community is
demanding that the state go out of compliance with ASMFC’s management plan.
“Going into non-compliance is never the first option, but it
may be the only one in taking a stand for New York anglers who year after year
continue to get screwed…
“Tri-state parity is so important, and New York needs to take
an immediate stand against the unfair black sea bass allocation and set its own
fair and equitable quota and going into what is formally known as ‘non-compliance…’”
“The people of the marine district of NY will not accept or
endorse any options with a cut to our sea bass regulations in 2018. If nothing can be worked out with the
Atlantic States Marine Fish [sic]
Commission, we demand that our state goes out of compliance, and take the case
all the way to the Secretary of Commerce, Wilbur Ross…”
Because based on what happened last year, there is a real
expectation that Ross would again ignore ASMFC and its scientists’ findings,
and endorse a state’s noncompliance.
Based on Ross’ comments at last month’s Recreational
Fisheries Summit, held outside of Washington, where he listed siding with a
defiant New Jersey as one of the accomplishments of his administration, such
expectations may very well reflect reality.
I don’t really expect New York to go out of compliance on black sea bass; its
fishery management folks know better than that.
But they don’t make the ultimate call, and when fisheries issues abandon
the realm of science and begin encroaching on politics, anything can happen, particularly
in an election year.
Should Ross overrule ASMFC once again, whether with respect
to black sea bass, menhaden or some other disputed stock, the future of
cooperative interstate fishery management would be extremely bleak. It might be more accurate to say that such
cooperative management had no future at all.
That would be bad.
Unlike a lot of people walking around and complaining about interstate
management today, I was alive and full-grown in 1983. I remember what fisheries management was like
when each state struck out on its own, doing what it thought best for its residents,
regardless of how that affected other states, and the overall health of fish
stocks.
I saw enough to know that the Atlantic Striped Bass Conservation
Act and the Atlantic Coastal Fisheries Cooperative Management Act weren’t
adopted at some congressman’s whim; they were signed into law to address a real
and critical need to coordinate management measures across a fish stock’s
entire range, in order to best conserve and manage each species.
No, ASMFC isn’t perfect.
I frequently criticize its lack of enforceable management standards, which
often leads to science being subordinated to economic concerns. But I also vehemently support ASMFC as an
interstate body that brings all fishery managers onto the same page, to manage
and conserve migratory fish stocks.
While its decision-making process needs to be improved, it
should never be ignored.
Because when that starts happening, we’ll be right back in
1983.
I lived through that once, and don’t care to do it again.
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