STRIPED BASS RECOVERY: EVERYONE MUST DO THEIR SHARE

The current, depleted state of the striped bass stock helps no one. 

Anglers are finding fewer fish, and their prime fishing times, once measured in months are, on most parts of the coast, measured in the few meager weeks in late spring and fall when bass pass through on their annual coastwise migrations.

Commercial fishermen see their landings cut in order to stem overfishing, while for-hire boats find it increasingly difficult to put their customers on fish.  

Shore-bound and private boat anglers often think that the for-hire boats are still wading in bass, but some hard numbers show just how far their landings have fallen over the past few years.  Here in New York, for example, landings have been steadily declining, from nearly 120,000 fish landed in 2014 to just under 14,000 last year.

Addendum IV to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass dropped the coastal bag limit from two fish to one, so the decline in landings between 2014 and 2015 was predictable just on that basis.  However, the drop from a little over 72,000 fish in 2015 to less than 14,000 three years later—an 80 percent decline—occurred at a time when the rules remained constant, and only a dearth of striped bass could reasonably be the cause.

So yes, the collapse in the bass population hurts the charter folks, too.

The other side of that coin is that a rebuilt striped bass population would benefit everyone.  There would be more bass available for commercial fishermen and for shore-based, private-boat and for-hire fishermen as well.  Thus, it only makes sense that all sectors of the fishing community accept an equal share of the burdens of rebuilding the stock, so that they can equally share in the benefits once abundance is restored.

But that isn’t what a lot of folks want to see happen.

When the Draft Addendum VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass was put together, elements of the commercial fishery argued that because anglers were responsible for 90 percent of all striped bass fishing mortality, anglers should bear most of the responsibility for ending overfishing and rebuilding the stock. 

Requiring both sectors to reduce landings by the same amount—18 percent, in the Draft Addendum VI—would place the onus of rebuilding on the recreational sector which, because it was responsible for 90 percent of the landings, would have to forego landing nine times as many fish as the commercial sector (to illustrate, if anglers originally caught 90 fish and commercials caught 10, applying an 18 percent reduction to both sectors would mean that anglers would have to catch 16.2 fewer fish to meet the reduction, while commercials would only have to reduce their landings by 1.8 bass—the fractional fish being theoretical, of course).

But, somehow, that wasn’t enough for some in the commercial fleet.  They felt that because they were responsible for only 10 percent of the fishing mortality, they should only be required to reduce landings by 10 percent of the 18 percent.  Under such a scenario, the recreational sector would have to cut their landings by 20 percent, while commercial fishermen would cut by a mere 1.8 percent (under this scenario, if anglers originally caught 90 bass and commercial fishermen 10, anglers would have to reduce their landings by 18 bass, while commercial fishermen would give up just 0.18 fish).

That would place 99 percent of the conservation burden on a sector that is responsible for only 90 percent of the mortality, which doesn’t seem right.

Some commercial fishermen try to justify such a disproportionate burden by arguing that their catch is constrained by a fixed quota, which they didn’t exceed, while anglers face no such firm constraints.  That argument might seem superficially appealing to some, but the fact remains that anglers overfished while remaining in compliance with regulations established under the striped bass management plan, and in that sense were no more at fault for the overfished stock than the commercials were (if the commercials want to argue that anglers, too, should be governed by a hard-poundage quota, they’ll get no fight from me, but that’s a discussion for another time).

But in the end, any discussion about “fault” is irrelevant.  We shouldn’t waste time placing blame.  Instead, we should be focused on revising the management plan to address the needs of the fish, because without a healthy bass population, we’ll all get hurt in the end.

The situation was summed up well in a recent opinion piece that appeared in the Cape Cod Times.  Written by the owner of an angling-related business on Martha’s Vineyard, it noted in part

“It is, however, glaringly apparent that there was a collective error in judgment in the late ‘90s shortly after the striped bass population rebounded when measures were taken over the preceding decade to rebuild stocks.  Regulations on commercial and recreational fishing started conservatively but got looser and looser, leading up to a point nearing 15 years ago when it became apparent that the number of fish was again dwindling.  Sadly, most state regulatory bodies and the Atlantic States Marine Fisheries Commission neglected to act.

“There’s plenty of blame to go around.  Initially, many assumed that commercial fishing was the culprit.  New data has emerged in recent years that seems to indicate that recreational fishing is responsible for the lion’s share of striped bass mortality.  It doesn’t matter.  The Atlantic striped bass stock is now once again overfished, and something needs to be done about it.”

And if you fish, recreationally or commercially, from boat or from shore, guided or on your own, you’re a part of the problem, and thus must be part of the solution.  No one should be permitted to contribute less than their full share to the striper's recovery.

Yet people will still want to try.  

There are persistent whisperings that the for-hire fleet will try to convince regulators to give them at least a partial bye on the harvest reductions, because they make us such a small part of the recreational sector.  Yet, while relatively few striped bass anglers venture out on for-hire trips—for the years 2014-2018 combined, for-hire trips constituted well under 2 percent of all striped bass trips made—the for-hire sector accounts for nearly 11 percent of all striped bass harvested; it is responsible for about the same level of removals as the commercial sector.

So if you allow the commercial sector to do less than its share, you probably have to let the for-hires off the hook, too.

And at that point, you’re exempting fishermen responsible for about 20 percent of all removals from needed conservation measures.  And that’s a big piece of the overall fishery—too big a piece to ignore.

Not to mention the fact that, if you start exempting sectors, why not start exempting states?  After all, while recreational fishermen harvested over 2.9 million striped bass in 2017, anglers in six different states—Connecticut, Delaware, Maine, New Hampshire, Rhode Island and Virginia—each accounted for well under 10 percent of overall landings.

Using the same logic being put forward by the commercials and some of the for-hires, is it fair to force anglers in Maine or Delaware, who landed about 22,000 and 28,000 striped bass, respectively—each less than 1 percent of overall landings—to cut back as much as anglers in Maryland, who harvested over 1,000,000 fish? 

If that argument was taken to its most absurd extreme, the burden of conserving the striped bass stock should be placed solely on the shoulders of surf and private boat anglers who fish in Maryland, Massachusetts, New York and New Jersey, while everyone else receives a reprieve.

Sounds pretty ridiculous, doesn’t it?

Yet, if it’s acceptable to exempt the commercial fleet, which is responsible for 10 percent of the mortality, or the for-hire fleet, which is responsible for about the same number of dead fish, why isn’t it just as acceptable to exempt other identifiable groups of fishermen who are responsible for less than 10 percent of the kill?

When you start asking questions like that, you begin to realize that it’s impossible to justify exempting anyone from the responsibilities inherent in conserving and managing the striped bass stock.

If they want to share in the benefits of an abundant striped bass population, they must share in the costs of nursing that stock back to health.

STRIPED BASS DEMONSTRATE THE NEED TO HOLD FISHERMEN ACCOUNTABLE

Actions have consequences.

At least they should. If someone does something that is contrary to the public interest, they ought to pay an appropriate price for the harm that they do. But when it comes to fisheries management, things don’t always work out that way.

For a very long time, fishermen were allowed to overfish, and to deplete fish populations, without any consequences at all. Although the law now known as the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) was originally passed by Congress in 1976, overfishing still continued for many years. It took another twenty years, and a continued decline in the nation’s fish stocks, to convince federal lawmakers to pass the Sustainable Fisheries Act of 1996 (SFA), which amended Magnuson-Stevens by prohibiting overfishing and requiring the prompt rebuilding of overfished stocks.

It was an important step forward, but overfishing remained a serious problem. In 2000, a federal appellate court found that in order to comply with the requirements of Magnuson-Stevens, any fishery management measure must have at least a 50% chance of achieving its desired goal; anything less would not provide the “fairly high level of confidence” that the law required.

In response, federal fishery management councils, which were dominated by fishermen who, prior to the passage of SFA, spent most of their time trying to avoid adopting any management measure that might meaningfully restrict either their landings or the associated income, did their best to adopt rules that barely met that minimum standard, and had no more—but also no less—than a 50% chance of preventing overfishing or rebuilding an overfished stock within the legally-required 10-year timeframe.

As a practical matter, that sort of precision was impossible to achieve, as there is always uncertainty in scientific calculations. Add the management uncertainty that arises out of landings estimates, the future behavior of fishermen and a host of other factors, and it quickly became clear that management measures drafted with just a 50% probability of success were likely to miss their mark in one direction or another.

When such plans led to lower than expected landings, little harm was done. While leaving a few extra fish in the ocean did have mildly negative economic implications in the short term, it still helped to assure a healthy stock, and healthy fisheries, in the future. But when management plans weren’t restrictive enough to end overfishing or rebuild overfished stocks, opportunities for both commercial and recreational fishermen were diminished, and such fisheries’ futures were dimmed.

The fate of the formerly abundant New England cod stocks is probably the best example of how fisheries fail when overfishing continues for years.

Yet, so long as a fishery management measure met the 50% probability standard, and fishermen complied with such measure, such fishermen faced no consequences, even if overfishing continued to occur and fish stocks, rather than rebuilding, continued to decline.

That all changed late in 2006, when Magnuson-Stevens was reauthorized, for the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Reauthorization Act) contained two key provisions.

One such provision required every regional fishery management council to “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established [elsewhere in the law].” That provision effectively took away councils’ ability to mechanically adopt a 50% probability of success for every management measure. Instead, each council’s scientific and statistical committee was empowered to consider the nature and extent of the uncertainty that surrounded each management plan, and recommend fishing levels that took such uncertainty into account.

Still, a council’s scientific and statistical committee was not legally bound to incorporate uncertainty into every fishing level recommendation. Such committee could, if it wished, still recommend fishing levels that merely had a 50% chance of success. In some councils, such recommendations were frequently made.

But the Reauthorization Act included a second provision that helped to safeguard fish stocks from less risk-averse management plans. It required that all fishery management plans “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level that overfishing does not occur in the fishery, including measures to ensure accountability. [emphasis added]”

Hard-poundage catch limits, coupled with accountability measures, were a game-changer. It was no longer enough for a regional fishery management council to adopt measures such as seasons, gear restrictions, or size and bag limits, and then merely shrug if such measures did not, in the end, prevent overfishing. For the first time, each council was required to set a defined limit for annual landings. And for the first time, fishermen would face real consequences for exceeding that limit, even if they strictly complied with every management measure that the councils imposed.

Many fishermen were critical of such changes. The changes were particularly unpopular in places such as New England, where the New England Fishery Management Council had done away with annual quotas in 1982, in the forlorn hope that the fisheries would become self-regulating. Instead of regulating themselves, fisheries became free-for-alls that the council later tried to rein in with so-called “input measures” such as trip limits and limits on the number of days that a vessel could fish; still, the council eschewed annual quotas, which had become anathema to the region’s commercial fishermen.

Without such quotas, efforts to halt the decline of cod and some other groundfish stocks proved to be impossible.

Annual catch limits proved to be anathema to many recreational fishermen, too, who had long overfished popular species such as summer flounder and red snapper, and didn’t want to be held accountable for their excesses. With respect to summer flounder, one perennial critic of Magnuson-Stevens complained, “As long as we have these annual catch limits in our management plan, whenever [the recreational landings estimate] bumps into it, the recreational sector is going to lose. That’s why we need a full reauthorization of the Magnuson-Stevens Act.”

He clearly hoped that any such reauthorization would rescind the catch limit requirement.

But it was Gulf of Mexico red snapper anglers who expressed the loudest opposition to both annual catch limits, and to being held accountable when they overfished—as they chronically did. Their discontent gave rise to the so-called “Modern Fish Act” in the last session of Congress. That act, in its original form, would have allowed federal recreational fisheries to be managed with “alternative” measures that did not include annual catch limits, and would largely allow anglers to escape any form of accountability, should they overfish.

Despite federal fishery managers’ success in ending overfishing and rebuilding overfished stocks, Modern Fish Act proponents proposed that, when managing recreational fisheries, regulators should abandon their current approach, and instead emulate state fishery managers, who do not impose annual catch limits and don’t hold anglers responsible for their overages.

They suggested that

The [National Marine Fisheries Service] should manage recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas. This strategy has been successfully used by fishery managers in the Atlantic striped bass fishery, which is the most sought-after saltwater recreational fishery in the nation. By managing the recreational sector based on harvest rate as opposed to a poundage-based quota, managers have been able to provide predictability in regulations while also sustaining a healthy population.

That would have been a convincing argument, if only it had been true. But the truth tells a very different story.

The Atlantic striped bass stock is overfished, and is experiencing overfishing. Both problems have continued for a number of years. In 2011, a stock assessment update informed fisheries managers that the stock would become overfished by 2017, but those managers declined to take any action to reduce harvest, even though they knew that the stock continued to dwindle.

They finally tried to reduce landings in 2014, after a new stock assessment found that the female spawning stock biomass was well below the target level, and that the fishing mortality rate had been exceeding the target for years. But even then, while they took steps to end overfishing, they took no decisive action to rebuild the overfished stock, even though the management plan required that they do so.

And when anglers in Chesapeake Bay failed to make the required 20.5% reduction in fishing mortality, and instead caused such mortality to increase by 58%, fishery managers did nothing to hold the anglers accountable in any way for their actions, and instead allowed them to continue overfishing.

Far from being a success, as Magnuson-Stevens’ critics have claimed, Atlantic striped bass management is a study in failure. Fisheries managers allowed the stock to collapse in the late 1970s, when there was no fishery management plan, brought it back to a full recovery during the late 1980s and early 1990s, and saw it increase to a near-term peak just fifteen years ago. But after that, they allowed the stock to decline and become overfished once again, by stubbornly clinging to long-term removal rates, that weren’t adjusted even after the stock fell into a deep, long-term decline.

And then, when managers finally imposed modest restrictions on the fishery, they failed to hold Chesapeake Bay anglers accountable after they increased their catch, at a time when they were supposed to be reducing fishing mortality.

So the striped bass stock is again in a bad place. Because actions have consequences.

If anglers are not held accountable, and made to face the consequences of their actions when they overfish, then those consequences will be borne by the fish stock itself.

And, as the striped bass has taught us, those consequences, for the stock, will not be good.

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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/

CHESAPEAKE BAY: MICROCOSM ON THE STRIPED BASS DEBATE

Chesapeake Bay is the most important spawning and nursery area for Atlantic striped bass.  

Although both the Hudson River and Delaware River make meaningful contributions to the coastal migratory stock, which even contains some fish from the more sedentary Albemarle/Roanoke (North Carolina) population, the effects of low recruitment in Chesapeake Bay will eventually be felt along the entire coast, from Maine to North Carolina.

It’s probably appropriate, then, that at this time, when the striped bass stock is again overfished and subject to overfishing, that the two Chesapeake Bay states, Virginia and Maryland, have placed themselves on opposite sides of the striped bass debate, and that all of the arguments for and against striped bass conservation can be heard on the shores of Chesapeake Bay.

Virginia has emerged as one of the leaders in the effort to end overfishing and rebuild the striped bass population.  

Although the Atlantic States Marine Fisheries Commission is already working on Addendum VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which if adopted as currently written will reduce fishing mortality by 18 percent and hopefully reduce such mortality to the target level in the 2020 fishing year, Virginia decided to act on its own, reduce fishing mortality this year, and not wait for ASMFC to decide on new management measures.

Last April, the Virginia Marine Resources Commission voted 7-0 to cancel the state’s so-called spring “trophy” striped bass season, which would have allowed anglers to retain striped bass measuring more than 36 inches in length.  Virginia anglers were still permitted to retain no more than two striped bass per day during a season that ran from May 16 through June 15, provided that such bass measured between 20 and 28 inches in length.

The spring trophy season was closed to preserve older, larger females in the spawning stock biomass, which are important to the future of the stock.  Virginia’s recreational striped bass landings have fallen precipitously over the past decade, dropping from 368,000 fish in 2010 to just 52,000 in 2018.  Facing such a decline, the state’s fishery managers realized that it was time to take action to rebuild the stock, with Marine Resources Commissioner Steven Bowman saying,

“Virginia has always been a conservation leader, and this is a time to step up.”

In August, Virginia announced additional emergency regulations that would further restrict both anglers and commercial fishermen.

The recreational changes would mirror those made in the spring; in the past, Virginia anglers were allowed to keep two striped bass per day during the fall season, one between 20 and 28 inches, and one at least 20 inches long, with no maximum size.  The emergency regulations, if they are confirmed in a permanent rule, would prohibit the harvest of bass more than 28 inches long.  On the commercial side, gill netters would, for the first time, face maximum mesh-size restrictions, with an upper limit of 9-inch mesh on the coast and 7-inch mesh in Chesapeake Bay.

Not everyone was happy with the emergency regulations.  They were particularly disliked by tournament and charter boat operators, who feel that that harvest of large bass is an essential part of their businesses.  However, even some of the charter boat operators understood the need for the rules, with one reportedly saying,

“This is a bitter pill to swallow.  What would be worse for captains would be no rockfish.”

Matthew Strickler, Virginia’s Secretary of Natural Resources, effectively endorsed that sentiment when he observed

“Poor management of striped bass over the past decade has caused significant economic harm to Virginians who depend on healthy fisheries for their livelihoods and has reduced opportunities for recreational anglers.”

He then added

“We need other states to follow our example and help rebuild the striped bass population starting immediately.  Delay is unacceptable and the Atlantic States Marine Fisheries Commission must take decisive action that will restore restoration of this fishery up and down the coast.”

But if Mr. Strickler was including neighboring Maryland in the list of “other states” that he expected to help, he’s going to be disappointed, because in Maryland, the overfished striped bass stock is not viewed as a critical issue.

In Maryland, Michael Luisi, a long-time biologist with the Department of Natural Resources, seems much less concerned about the striped bass’ problems.

“Some people are reacting to this as if the sky is falling.  We do understand the need for change.  We have the trend of a decade-long decline we have to turn around.

“We’re not in panic mode.  We believe that we’re still okay.  We know we have the ability to correct for the problem that we see.”

The problem is, Maryland doesn’t seem to be doing too much to correct anything.

In 2014, ASMFC adopted Addendum IV to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass.  It required fishing mortality to be reduced by 25% on the coast, and by 20.5% in the Chesapeake Bay.  Commercial fishermen, both on the coast and in the Bay, achieved the required reductions.  So did coastal anglers.  But anglers in Chesapeake Bay not only failed to reduce landings by 20.5%, they actually increased their contribution to fishing mortality by about 58%.

Despite that fact, the State of Maryland did nothing to reduce recreational fishing mortality and made no further attempt to meet its obligations under Addendum IV.  In fact, when the issue arose at the October 2016 Atlantic Striped Bass Management Board Meeting, Mr. Luisi showed no remorse for his state’s overharvest, and instead blustered that all was fine, saying

“When we see numbers, an increase in harvest of 58.4 percent in the Chesapeake Bay, it kind of leads I think, board members to believe that Maryland and Virginia, Potomac River may not have contributed to the successful management.  I stress the word success.”

Later in the meeting, he expanded on that theme, and tried to justify Maryland’s overharvest by pointing out that

“The actual written report that we have in our briefing materials speaks to the emergence of the 2011 year class.  It reads that ‘the harvest in the Bay in 2015 was undoubtedly lower than it would have been, had regulations remained status quo.’  I just wanted to make that comment, because I believe it strengthens what was reported as kind of a likely reduction.”

But he was just blowing smoke in what turned out to be a successful attempt to conceal the real issue.  For Addendum IV didn’t merely require Maryland, and the rest of the Chesapeake Bay fishery, to reduce recreational landings below what they “would have been, had regulations remained status quo.”  Maryland and the other Chesapeake jurisdictions were obligated to reduce fishing mortality by 20.5% compared to what it was in 2012.

And that, Maryland completely failed to do.  In 2015, and again in 2016, 2017, and 2018, Maryland’s recreational landings were at least 150%, and in at least one year more than 200%, of what they should have been should the state have met its obligation to reduce recreational fishing mortality by 20.5%.

And still, Maryland shows no remorse.

Mr. Luisi was still reiterating his position at the Management Board’s February 2018 meeting, saying

“I don’t think it was ever anybody’s expectation that we would maintain some form of a constant harvest strategy; while we have the influence of year class strengths that we do.  It would suggest to me that this conversation about finding or maintaining a harvest level at or below the 2012 harvest, it wasn’t something that was going to happen.  We had a 2011 year class expanding into the Bay to the degree that it did.  While we may not have met the letter of the Plan, I believe that our potential harvest was reduced dramatically, as a result of those increases that we took.  I think that we all made a really solid good faith effort in putting together the regulations that we did as a result of Addendum IV, and I’ll leave it at that Mr. Chairman, thanks.”

Given that it’s a basic tenet of statutory or regulatory construction that you look first to the plain language of the law or regulation, and if the plain language is clear and unambiguous, it should be interpreted to mean exactly what it says, the argument that on one really expected Maryland anglers to reduce their harvest below that of 2012 is ludicrous on its face.  After all, the commercial fishermen in the Bay managed to deal with the 2011 year class and still meet their mandated reductions.  The recreational fishermen could have done the same, if Maryland really wanted them to do so. 

Cutting the bag limit from two fish to one, and closing the Bay season during mid-summer, when release mortality soars—as Virginia has already done—are just two approaches that come to mind.

But Maryland was already getting away with piscine murder, and apparently saw no reason to change.  At the April 2019 Management Board meeting, Mr. Luisi made his strongest pitch yet for increasing the harvest and permanently decreasing the size of the spawning stock, when he said

“We’ve had concerns over the reference points for quite some time.  In our mind they’re a bit too high.  I think they provide for an unrealistic expectation to the public that we’re going to be able to achieve that level.

“You know, currently the threshold reference point is 91,000 metric tons and 125 percent of that puts us at a target value, and when you look at the estimates of spawning stock biomass that came out of the benchmark.  We have never achieved the target in all of that time as we’re evaluating that.”

Of course, what he doesn’t mention is that, “in all of that time,” managers have never reduced fishing mortality to the target, either, and doing so is a prerequisite for achieving and maintaining the target biomass.

He also doesn’t mention that allowing Maryland anglers to overfish doesn’t help rebuild the biomass to the target—or even to the threshold.

On the other hand, a lot of Maryland anglers seem to have a better picture of what’s going on.  Long-time charter boat captain Ken Jeffries noted that

“The way the Department [of Natural Resources] has been making adjustments over the years has not been good for fishing itself, for the fish,”

making it clear that he understands that what’s good for the fish is also, in the long term, good for his fishing business.  

He observed, with respect to Maryland’s spring trophy season, that

“When you go a whole entire month and a whole fleet doesn’t catch a fish, that’s not good.  It was bad, bad.”

And that’s from an experienced charter boat captain.  Ordinary fishermen, casting from shore, have it even worse.  One such angler reportedly said that

“Early on it was pretty poor, if not terrible.  I just think the biomass is depleted.  There’s a lot of overfishing.”

So fishermen in Maryland get it, even if some of those who are supposedly representing their interests don’t.

But, in the end, that’s the striped bass debate in a nutshell.  Many fishermen, responsible for-hire captains and concerned fishery managers are working to end overfishing and, in time, recover the stock. 

On the other side stand those who are more concerned with larger harvests in the short term, and feel no strong compulsion to build the stock back to a point where the public can enjoy its true potential.

The two sides face off over Chesapeake Bay, and elsewhere along the coast.

We can only hope that the right side prevails.

                                                                                                                                

iT'S COMPLICATED: MENHADEN HARVEST EXCEEDS ASMFC CAP IN THE CHESAPEAKE BAY

A week or so ago, East Coast anglers and conservation advocates were outraged when they learned that Virginia-based Omega Protein, a United States subsidiary of Cooke Inc., the big Canadian aquaculture company would, for the first time in years, harvest more than 51,000 metric tons of menhaden from Chesapeake Bay.  Because of Omega’s actions, Virgina’s 2019 menhaden landings from Chesapeake Bay will exceed the 51,000 metric ton cap for so-called “reduction fleet” landings established in Amendment 3 to the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Plan for Atlantic Menhaden, and set the stage for attempts at remedial action.

The question is, what sort of remedial actions, if any, will be taken, and will any of those actions do any good in the end?

The answers to that question are anything but clear.

Anyone unfamiliar with how ASMFC works, or the application of its management plans, might think that the answers are simple, and that the mere fact that Virginia’s 2019 menhaden reduction landings exceeded the Bay cap will lead to consequences that include corrective actions.  

Unfortunately, the ASMFC doesn’t work quite that way.

The ASMFC itself is not a rulemaking body.  It is an interstate compact of states, joined by a few other entities including Washington, D.C. the Potomac River Fisheries Commission, the United States Fish and Wildlife Service, and the National Marine Fisheries Service, which have joined together to conserve and manage coastal marine resources.

Thanks to the Atlantic Coastal Fisheries Cooperative Management Act, which became law in 1993, when the ASMFC adopts a fishery management plan for any species, it may require its member jurisdictions to

“implement and enforce the measures of such plan within the timeframe established in the plan.”

The problem is that, on occasion, states go rogue and refuse to adopt one or more provisions of an ASMFC management plan.  That’s exactly what happened in the case of menhaden.  

While there’s plenty of reason to believe that Virginia’s professional fishery managers would be willing to go along with the ASMFC’s management measures, menhaden happen to be the only Virginia saltwater fishery that is managed not by Natural Resources professionals, but by the Virginia legislature, which means that their management is based more on politics than on science.

So far, such political considerations have led the Virginia legislature to refuse to reduce the Bay Cap to 51,000 metric tons.  It remains at 87,216 metric tons, a level established by an earlier ASMFC action.  When Omega’s harvest exceeded51,000 metric tons earlier this year, the company wasn’t breaking any laws—a pointthat it repeatedly makes when it speaks to the press—and won’t be breakingVirginia law unless and until its harvest exceeds 87,216 metric tons.

Virginia, however, is in violation of its obligations to the ASMFC; by refusing to adopt the 51,000 metric ton Bay cap, the Virginia legislature placed Virginia out of compliance with the menhaden management plan.  And when that happens, the non-complying state will suffer consequences.

At least, that’s how things work in theory.

The same Atlantic Coastal Fisheries Act that empowered the ASMFC to adopt binding, cooperative management plans contains provisions for dealing with states that, for one reason or another, don’t want to cooperate on any management issue.  Once the ASMFC makes a formal finding of non-compliance, that finding is forwarded to the Secretary of Commerce who, after appropriate deliberation, may then impose a moratorium that shuts down the offending state’s entire fishery for the affected species, until such state decides to comply with the ASMFC’s management plan.

The law provides that

“Within 30 days after receiving a notification from the Commission [that a state is out of compliance] and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on whether the State in question has failed to carry out its responsibility [to implement and enforce a management plan’s provisions]; and if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question. [internal numbering and punctuation deleted]”

That provision worked well for many years, with various Secretaries of Commerce supporting the ASMFC’s findings and providing a stick that ultimately assured the compliance of any state that wasn’t willing to accept ASMFC’s cooperative management carrot. 

But then something changed.  Wilbur Ross became the Secretary of Commerce.  And unlike his predecessors, Wilbur Ross cared little for conservation.  Instead, he was, and is, all about monetizing fishery resources, pushing yields up to their maximum sustainable levels, and increasing fishery landings for both domestic consumption and for export.  He has not provided a sympathetic ear to the ASMFC, or to anyone else, who argued for precaution, or for elevating the long-term health of any fish stock over the possibility to turn a quick profit.

Thus, shortly after taking office in 2017, he became the first Secretary of Commerce in history to overturn an ASMFC non-compliance finding, allowing New Jersey to maintain recreational summer flounder regulations that didn’t meet the conservation and management standards of the ASMFC plan.  Secretary Ross didn’t even bother to consult with NMFS’ regional office, and the people who were most familiar with the fishery, before finding in New Jersey’s favor.

At about the same time, Secretary Ross also extended the recreational red snapper season in the Gulf of Mexico, knowing as he did so that such extension would lead to overfishing, and so be a violation of federal law.  Commerce Department emails, obtained in subsequent litigation, revealed that Secretary Ross went ahead with the illegal opening, which he knew would lead to overfishing, for no better reasons that it would let some industry folks make money—and because he thought that he could get away with it.

A June 1, 2017 email to the Secretary from Earl Comstock, then the Director of Commerce’s Office of Policy and Strategic Planning, noted that

“You have heard directly from a broad range of interests that this short season will have devastating impacts on the multi-billion dollar recreational sport fishing industry, and particularly on marinas, restaurants, boat dealers, boat builders, and tackle manufacturers that depend on the recreational anglers in the Gulf…

“An action to extend the summer season to 46 days (three days a week through June, July, and August with 4^th of July and Labor Day included) would be very well received…It would result in overfishing of the stock by six million pounds (40%), which will draw criticism from environmental groups and commercial fishermen…

“[However,] under the Magnuson-Stevens Act a court can’t issue a temporary restraining order, so your action would remain in effect for at least 45 days before a court could act…  [emphasis added]”

So it’s abundantly clear that given the choice between a little more economic activity or needed conservation measures, even legally-mandated conservation measures, Secretary Ross is going to rule against conservation whenever he has the opportunity to do so.

Thus, it’s not too hard to predict what he might do should the ASMFC declare Virginia out of compliance on menhaden.

That’s particularly true when one realizes that in both the case of Gulf red snapper and that of New Jersey summer flounder, the available science and law militated against Secretary Ross’ decisions, while in the case of Virginia menhaden, the science, as applied to current law, isn’t all that clear—and the Commerce Department is already sending strong hints on what it plans to do should the ASMFC forward the matter along.

The Bay cap on menhaden harvest was adopted to prevent localized depletion, a situation that some believe to occur when too many menhaden are removed from Chesapeake Bay, and not enough remain to provide an adequate forage base for local predators.  There has been at least one study that suggests that the health of Chesapeake Bay striped bass suffers when menhaden are scarce.  

Yet the most recent amendment to ASMFC’s menhaden management plan downplays the local depletion issue, saying

“In 2005, [ASMFC’s Atlantic Menhaden Management] 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 that 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.’

“While the AMRP peer review report was not able to provide conclusive evidence that localized depletion is occurring, maintenance of the Chesapeake Bay reduction fishery cap does provide a greater level of protection in the region than the [total allowable catch] alone.”

The Commerce Department is certainly focused on that language.  At the August 2018 meeting of ASMFC’s Atlantic Menhaden Management Board, Chip Lynch, an attorney for the National Oceanic and Atmospheric Administration’s Office of General Counsel, advised the Management Board that

“If you…vote for a noncompliance, the Federal Government will take it and we will analyze it according to our process set forth in the Atlantic Coastal Act.  But I want to underscore the issue that we will need to look at it through the lens of conservation.  That’s what Congress has dictated.

“Fortunately we’ll be able to look at the record that you all develop, because you have the same standard…under your own Commission ISFMP Charter says that you need to find that before sending any noncompliance over you need to discuss and make a finding that the measure in question that is not being followed, jeopardizes the conservation of the fishery in question.

“…I know from General Counsel’s point of view, I am interested in hearing you develop the record as to how this particular—the Bay Cap—failure to implement the Bay Cap will jeopardize the conservation of the resource.

“…There has been discussion that this particular situation is unique.  The idea that a noncompliance situation would occur, or has occurred because of an inability of a Legislature to implement a regulation is absolutely not unique…What is unique is that this would be the first time ever in the history of the Atlantic Coastal Act and the Striped Bass Act, which is really the genesis of this noncompliance provision in the Atlantic Coastal Act, it would be the first time ever that the Federal Government would receive a noncompliance referral for a fishery that is not overfished, overfishing is not occurring, and there is record evidence from the leadership of the Commission that the measure is not related to conservation.  That is unique.  [emphasis added]”

Although it’s easy to disagree with the statement that the Bay Cap isn’t linked to conservation—it is definitely linked to the conservation of striped bass and other predators that depend on menhaden for forage—that sort of conservation linkage isn’t addressed by the Atlantic Coastal Act, which states that the measure must be “necessary for the conservation of the fishery in question.”  And Amendment 3 made it clear that the Management Board wasn’t really convinced that localized depletion was a real problem.

Although he didn’t expressly say so, it was pretty clear from his comments that Mr. Lynch was telling the Management Board that if it found Virginia out of compliance, the Secretary of Commerce would overturn such finding.

That placed the ASMFC in a seemingly unresolvable quandary.  It could either forge ahead and find Virginia out of compliance, knowing that such finding would not be sustained by the Secretary, or it could do nothing, and effectively admit that, at least for the duration of the current conservation-hostile Administration, it was effectively a paper tiger unable to effectively enforce the provisions of its management plans.

Ultimately, the Management Board tried to find a middle way.

Because Virginia hadn’t come close to harvesting 51,000 metric tons of menhaden in the Bay for a number of years, making the noncompliance issue more of an academic issue than a threat to either the Bay ecosystem or the menhaden themselves, it proposed a motion that would only find Virginia out of compliance if its harvest in Chesapeake Bay exceeded 51,000 metric tons.

That motion failed, and action on the motion was postponed until the February 2019 Management Board meeting, with the hope that the Virginia legislature might see the light and lower the Bay cap by then.  It never happened.  Thus, knowing it was firmly locked into a no-win situation, the Management Board finally passed a motion that read

“Move to postpone indefinitely a recommendation to the ISFMP Policy Board to find the Commonwealth of Virginia out of compliance with Amendment 3 of the Atlantic Menhaden FMP for failure to implement a reduced cap on harvest from the Chesapeake Bay provided the annual catch from the Chesapeake Bay reduction fishery does not exceed that established by Amendment 3.  The Board will consider action to modify the Bay Cap after it completes action on ecological-based reference points.  [emphasis added]”

It seemed like a safe move at the time, since it had been years since the reduction fishery harvested 51,000 metric tons in the Bay, and ecological-based reference points may well give rise to a new amendment in which everything, including the Bay cap, will be reconsidered.

Yet fish have a way of confounding everyone’s schedules, and Omega’s unexpectedly high harvest has again thrust the ASMFC into the same no-win situation.  It’s the same situation that ASMFC faced last year, where it can find Virginia out of compliance, and have that finding overturned by a conservation-averse Wilbur Ross, or do nothing, and still appear impotent.

It's not unlikely that the Management Board will do the same thing that it did last year, and postpone any action until February.  But this time, there is hope that things will turn out differently.

The ultimate answer to resolving the menhaden issue probably doesn’t reside in any bureaucrat’s hands, but rather in the ballot box.  Right now, pro-Omega legislators narrowly control both houses of the Virginia legislature, but that could change soon.  Voters will get an opportunity to replace Omega's supporters this November, when flipping just four seats—two in the Senate, two in the House of Delegates—could change party control of both houses, change the legislature’s stance from pro-Omega to pro-conservation, and align the legislature with the views of an already pro-conservation governor and natural resources department.

It could happen.

If it doesn’t, the ballot box might still offer a solution in 2020, when the nation will decide whether folks who think like Wilbur Ross should be in charge of our fisheries and other public trust resources, or whether it's time for a change.

STATE-BASED FISHERY MANAGEMENT PROGRAMS AGAIN FAIL FISH, FISHERMEN

The great debate over the so-called “Modern Fish Act” ended nearly a year ago, and the arguments made by that bill’s supporters have largely faded into the past.  Even so, the law that was finally adopted byCongress was so watered-down and weakened, compared to what it’s proponentsoriginally wanted, that we can expect the same issues to crop up again as soon as an opportunity arises.

In fact, they have already returned to Congress as part of H.R. 3697, the latest iteration of the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, a perennial effort to weaken federal fisheries laws and create loopholes in the current law that could delay the rebuilding of overfished stocks, allow overfishing to continue, and dilute the science used to drive fishery management decisions.

The good news is that H.R 3697 has little or no chance of being passed, or even considered, in the current Congress, and that so long as control of the House of Representatives doesn’t shift in the 2020 elections, it’s not likely to be passed or considered (because it or something very like it will almost certainly be introduced again) in the next Congress, either.

Thus, the angling-industry groups and anglers’ rights organizations that aggressively promoted H.R. 200, last Congress’ near-identical counterpart to H.R. 3697, over the course of the past year have not been very eager to support the current bill.  Out of all of the angling groups that supported H.R. 200 last year, only the Recreational Fishing Alliance, a small New Jersey-based group that often places itself at the extreme, anti-regulatory fringe of the angling community, appears to support H.R. 3697, although the bill has found somewhat broader support among the commercial fishing industry.

Nonetheless, the industry/anglers’ rights cabal that conceived of and promoted the Modern Fish Act aren’t going to abandon their agenda.  From what I’m hearing, their representatives still speak to politicians and fishing clubs, and still try to convince their audience that anglers should be relieved of some of the regulatory responsibility for conserving and effectively managing fish stocks.  

Because current federal fisheries law does not allow anyone to escape their share of the regulatory burden, industry/anglers’ rights organizations have often advocated taking management responsibility over recreational fisheries away from the National Marine Fisheries Service, and turning it over to the states, which for the most part are not legally bound to end overfishing or rebuild depleted fish populations.

That position was spelled out in a 2014 report issued under the aegis of the Theodore Roosevelt Conservation Partnership, titled A Vision for Managing America’s Saltwater Recreational Fisheries, which stated, in part

“Many state natural resources agencies, especially in the South, recognize the benefits of a vibrant recreational fishing community and have managed to promote it while conserving their saltwater resources.  Striped bass, red drum, black drum, summer flounder, sheepshead, snook, spotted seatrout and tarpon are examples of successfully managed state fisheries that sufficiently meet the needs of recreational anglers while providing extensive economic benefits to their state and the national economies.”

The only problem with that statement, both when it was made and continuing on to today, is that it’s not true.  Besides one obvious misstatement—summer flounder, at least for purposes of preventing overfishing, rebuilding an overfished stock, establishing annual catch limits and holding fishermen accountable for their overages, is a federally-managed fishery—data shows that some of the listed species are not doing very well at all.

For example, the report states that

“The NMFS should manage recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas.  This strategy has been successfully used by managers in the Atlantic striped bass fishery, which is the most sought-after saltwater recreational fishery in the nation.  By managing the recreational sector based on harvest rate rather as opposed to a poundage-based quota, managers have been able to provide predictability in regulations while also sustaining a healthy population.  [emphasis added]”

Of course, as we now know, the striped bass population is not healthy at all..  It is both overfished and experiencing overfishing, and has been for quite some time, although without annual catch limits that are adjusted each year to account for changes in stock size, it took managers a number of years to recognize and address the problem.  Even after a stock assessment update warned, in 2011, that the population would be overfished by 2017 if nothing was done, they elevated consistent landings and "predictability in regulations" over the long-term health of the stock, and decided to defer needed management action.

Thus, state fishery managers, assembled as the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board, actually failed to sustain a healthy population, even though they were warned well ahead of time that problems were on the way.

Now, they have to deal with the consequences of their inaction and failure; we can only hope that lessons were learned.

But striped bass weren’t the only fish named in the “Vision” report that have fallen on hard times.

Down in Louisiana, speckled trout (more properly, “spotted seatrout”) are not doing well.  The state has been aware of the problem for years, but delayed taking action until things got bad, reluctant to cut the 25-fish bag limit—yes, you’re reading that right—or raise the 12-inch minimum size.

I first wrote about the issue in 2016, by which time the spawning potential ratio of Louisiana’s speckled trout population had fallen to just 10%, a little over half the 18% level that biologists believe necessary to support a healthy stock in the long term.  A state biologist justified taking no action to build up the stock because

“The current limits, biologically speaking, are designed to maximize angler yield while not putting the stock into a condition where we may see recruitment overfishing.”

In other words, putting a lot of trout in folks’ coolers took priority over keeping a lot of trout in Louisiana’s bayous.  

That was apparently want many Louisiana anglers wanted, although others complained about the fish’s dwindling size; some guides noted that the were releasing 50 to 150 undersized fish every time that they went out, and believed that most of the fish were being removed from the population as soon as they exceeded the 12-inch size limit.

A couple of years ago, I was invited to join a panel discussion sponsored by the Rhode Island Saltwater Anglers Association; the topic was federal fisheries management, and the changes sought by supporters of the Modern Fish Act.  It happened that one of the other panelists was the Marine Fisheries Director for the Theodore Roosevelt Conservation Partnership.  I presented my case that the Magnuson-Stevens Fishery Conservation and Management Act, with its strong conservation provisions, benefitted anglers in the long run, and that the Modern Fish Act threatened those provisions, and could result in long-term harm.

Naturally, the TRCP representative took the opposite tack, as the organization was a strong supporter of the Modern Fish Act.  It also happened that the TRCP rep grew up and still lived in Louisiana, so I used the speckled trout situation as an example of flawed state fisheries management, and argued that under Magnuson-Stevens, the situation would have been remedied years ago, and might not even have arisen in the first place, since overfishing wouldn’t have been tolerated for as long as it was. 

My fellow panel member was quick to aver that there was nothing wrong with Louisiana’s speckled trout population, and argued that it was better to try to change fishermen’s “culture” than to reduce the 25-fish bag.

Now, it seems that Louisiana, at least, is taking a new look at the problem.  A recent article in The Advocate, a popular southern Louisiana news outlet, noted that

“After studying speckled trout for several months, Department of Wildlife and Fisheries’ marine biologists came up with several startling statistics.  To wit:

·         The stock has been overfished since 2014;

·         Overfishing has occurred in six of the past 10 years;

·         The spawning stock biomass and proportion of age-3-and-older female speckled trout in the population are at the lowest levels in the biologists’ data base;

·         Recreational landings are at the lowest levels since 1990;

·         and, fishing effort continues to increase.”

It’s hard to understand why the author of the article found most of those conclusions “startling,” given that the problem had already been identified, and reported in local papers, years ago.  

The author even wrote another article last March that foreshadowed the more recent announcement.  On the other hand, that March article did provide one big reason why the stock was allowed to fall so low, when it quoted a state fishery manager, who said

“I think everyone knows that we’re reluctant to change regulations.”

The folks who people ASMFC's Atlantic Striped Bass Management Board voiced a similar reluctance to "overmanage" the stock in 2011, when there was still a chance to halt its decline short of the overfishing threshold.

For when all is said and done, changing fisheries regulations is always a difficult thing for state managers to do, at least when the regulations are being made more restrictive.  Some elements of the fishing community will always be opposed to any reductions in harvest, with industry folks claiming that they’ll lose too much business, and some anglers complaining that their “right” to fish is being infringed.

When that happens, fishery management becomes more a political process than a scientific one.  Needed changes supported by the professional fishery managers are often abandoned when politicians intervene; no matter how badly such measures are needed, managers know that they will end up in a bitter fight, not only with elements of the public, but often with higher-ups in their own department and in the governor’s office, before such rules are adopted.

Faced with that reality, state managers are often loath to propose harvest restrictions, and delay far too long, to the detriment of fish stocks, before putting them in place.

That doesn’t happen under the federal system.  There, the law requires that managers end overfishing, and compels them to promptly rebuild overfished stocks, thus relieving managers of both the option of doing nothing and the political exposure that would otherwise result if they made a politically unpopular, but biologically necessary, decision.

That, in the end, is one of the foremost strengths of Magnuson-Stevens, and one of the biggest weaknesses of the ASMFC and state management systems, where bad politics can, and often does, trump good science.