Thursday, August 9, 2018


Although there were a number of items on the agenda, the meeting of ASMFC’s Atlantic Menhaden Management Board was probably viewed as the main event, with all of the other meetings forming a sort of undercard (in the end, that didn’t prove true, with some troubling news coming out of what had been expected to be an uneventful Atlantic Striped Bass Management Board meeting; that will be discussed here at some point next week).

Menhaden became a hot item after the Virginia legislature, which controls menhaden management in that state, refused to adopt the 51,000 metric ton cap on the large-scale “reduction” harvest of menhaden in Chesapeake Bay, which was included in the new Amendment 3 to ASMFC’s menhaden management plan.  Such refusal left an 87,216 metric ton cap in place, and put Virginia into technical noncompliance with ASMFC’s menhaden management plan.
As a result, at ASMFC’s Spring Meeting last May, the Atlantic Menhaden Management Board considered a motion that read

“Move that the Atlantic Menhaden Board recommend to the ISFMP Policy Board that the Commonwealth of Virginia be found out of compliance for not fully and effectively implementing and enforcing Amendment 3 to the Atlantic Menhaden Fishery Management Plan if the state does not implement the following measure from Section 4.3.7 (Chesapeake Bay Reduction Fishery Cap) of Amendment 3:  The annual total allowable harvest from the Chesapeake Bay by the reduction fishery is limited to no more than 51,000 mt.”

If the legislature failed to adopt the lower Bay Cap, as ultimately proved to be the case, by the August meeting, the Atlantic Menhaden Management Board could then find them out of compliance with the management plan, a which, if affirmed by ASMFC’s Policy Board and then by the Secretary of Commerce, could result in a total moratorium being placed on all of Virginia’s menhaden fisheries until the state adopted the lowered Bay Cap.

The Bay Cap was supported by a very broad array of anglers and conservation groups, who believed it was necessary to maintain the ecological health of Chesapeake Bay.  A grassroots appeal made by the Theodore Roosevelt Conservation Partnership provides a good summary of the pro-Cap side’s arguments.

“Menhaden, the small, oily baitfish also known as bunker or pogie, are well-deserving of their other nickname:  ‘the most important fish in the sea.’  They are a critical food source for many of the sportfish that we love to pursue and they filter gallons of water a minute to improve water quality where polluted runoff is a serious threat to habitat, like the Chesapeake Bay.
“For decades, the reduction fishing industry---which ‘reduces’ menhaden for feed and oil for use as pet food and agriculture feed—lobbied for higher and higher menhaden quotas.  Last year, anglers pushed back.  The Atlantic States Marine Fisheries Commission responded by voting to place a modest cap to conserve menhaden in the Chesapeake Bay and study methods of managing forage fish with their ecological importance in mind.
“But in Virginia, a single company representing a last harmful relic of past mismanagement may not comply with the cap.  It’s time for the Atlantic States Marine Fisheries Commission and the Secretary of Commerce to hold Omega Protein accountable and, if necessary, shut the reduction fishery down…”

The reduction fishery opposed the Bay Cap, arguing that no study had ever clearly established that predators were harmed by localized menhaden depletion in the Bay.  It found support in a statement in Amendment 3 itself, which said that

“In 2005, the Board established the Atlantic Menhaden Research Program (AMRP) to evaluate the possibility of localized depletion.  Results from the peer review report in 2009 were unable to conclude localized depletion was occurring in the Chesapeake Bay and noted that, given the high mobility of menhaden, the potential for localized depletion could only occur on a ‘relatively small scale for a relatively short time.’”

Thus, the battle lines for last Tuesday’s meeting were set.

The meeting opened with a substitute motion brought by Maryland, which would have found Virginia out of compliance only if the 51,000 metric ton Bay Cap was actually exceeded, and not merely because the legislature failed to act.  Such motion had the support of not only Maryland, but also of Virginia and the Potomac River Fisheries Commission, so every Chesapeake Bay jurisdiction with an interest in menhaden was on board.

Other Management Board members, however, had their doubts.

Robert Ballou, the proxy for Rhode Island’s marine fisheries director, was concerned that not finding Virginia out of compliance until it actually exceeded Amendment 3's Bay Cap would set a precedent that other states would use to avoid adopting needed regulations.  He feared that extending such an opportunity to Virginia would “tear at the fabric” of what ASMFC had done in the past.

A number of Management Board members expressed similar thoughts.  Some of them argued that it was a matter of principle, and that ASMFC should not allow Virginia to ignore the demands of the management plan, even though it was pretty certain that, as a practical matter, Virginia’s 2018 reduction harvest in Chesapeake Bay would fall far below 51,000 metric tons.

Others were not so sanguine.  

Jim Gilmore, the marine fisheries director from New York and also the current Chairman of ASMFC, reluctantly supported the substitute motion.  He admitted that

“We have two choices and neither of them is very good,”
which was a clear reference to the likelihood that the Secretary of Commerce would overturn any noncompliance finding, and so undercut the authority of future ASMFC actions.  

Undoubtedly for that reason, Mr. Gilmore noted that holding Virginia responsible for what he called “a technical noncompliance” might do more harm than good.  He recalled that when he first became involved in fisheries management, a mentor reminded him that

“What your job is, is to serve the resource,”
and said that

“My opinion is, to serve the resource right now,”
ASMFC should approve the substitute motion.

His position, too, garnered its share of support

Pat Kelliher, the fisheries director from Maine, reflected the dilemma the Management Board was in when he observed that

“Both sides of this issue are concerned with the fabric of the Commission.”
They just disagreed on what action was most likely to tear that fabric apart.

As the vote drew near, it wasn’t at all clear which side of the debate would prevail.

But that all changed when Chip Lynch, an attorney for the National Marine Fisheries Service, took the floor.  He said that ASMFC had to decide for itself what to do, but observed that if ASMFC found Virginia out of compliance, it would be the first time in more than 24 years that such noncompliance finding was applied to a species that was neither overfished nor subject to overfishing, and for which

“there is record evidence from the leadership of the Commission that the measure [giving rise to the noncompliance finding] is not related to conservation.”
That was a key point, because even if the Secretary of Commerce was inclined to support any such noncompliance finding (and his past actions suggest that he was probably not so inclined), his ability to do so was limited by the express terms of the Atlantic Coastal  Fisheries Cooperative Management Act, which states in relevant part that

“Within 30 days after receiving a notification from the Commission [that a state has been found out of compliance] and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on
1)      whether the State in question has failed to carry out its responsibility to [adopt and enforce the relevant provisions of an ASMFC management plan]; and
2)      if so whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.  [emphasis added]”
I’ve been an attorney for about 40 years and, based on the administrative record, there is no way that I would have been able to advise a client that Amendment 3’s Bay Cap was necessary to conserve the menhaden fishery.  Anyone listening to Mr. Lynch speak would have been just about sure that he couldn’t, in good faith, give such advice to his client, either.

That changed the tenor of the debate.

When a vote was taken, the substitute motion was voted down, but Virginia was not found out of compliance.

Instead, the Management Board again voted to postpone any action on the noncompliance motion, this time until its February 2019 meeting, to give everyone involved in the issue a chance to work it out; that’s particularly important for the Virginia legislature, which will meet over the winter.

While it wasn’t a satisfying outcome—most folks involved with the issue feel that Virginia’s failure to adopt the Bay Cap was inherently wrong—it was probably inevitable, for as Mr. Gilmore noted, the consequences of finding Virginia out of compliance could, and I believe would, have been worse.

In the meantime, hope remains that, before next February, people will come together in good faith to work out the issues, so that a vote on noncompliance will not be needed.

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