Thursday, April 12, 2018
Thirty-five years ago, the striped bass population had bottomed out. Bass fishing had, too.
Along the entire Atlantic seaboard, anglers made only about 800,000 trips targeting stripers (compared to more than 4,500,000 last year and nearly 6,000,000 in 2016), and caught fewer than 700,000 fish (about 300,000 of which were kept).
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.
For nearly twenty-four years after that, the threat of a noncompliant state’s fishery being closed by the Secretary of Commerce kept the various jurisdictions in line, even when they didn’t like the ASMFC plan. Nineteen times, noncompliant states challenged ASMFC, and nineteen times, the Secretary of Commerce upheld ASMFC’s finding of noncompliance.
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.
It was the first time that a Secretary of Commerce ever failed to support ASMFC, and it immediately brought ASMFC’s authority to compel state compliance into question. As noted by Douglas Grout, then Chair of ASMFC,
“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.
Opportunistic local politicians have jumped on the noncompliance bandwagon, with Rep. Lee Zeldin (R-1st District) saying, while addressing a local rally,
“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.