For conservation advocates along the coast, it was a
welcome, if not entirely expected, decision that will help to preserve the
integrity of inshore ecosystems between Florida and Maine.
Reduction harvest in
Chesapeake Bay has been capped since 2005; between 2005 and today, the cap has decreased
from well over 100,000 metric tons to the 87,216 metric ton cap that was in
place immediately prior to Amendment 3’s adoption.
The reduction fishery is not permitted to operate in Maryland’s
section of Chesapeake Bay, so all of the menhaden caught in the bay by the reduction fleet must are caught in Virginia waters. In Virginia, menhaden remain the only species
of salt water fish managed by the state legislature, rather than by the
Virginia Marine Resources Commission.
The Virginia legislature adopted an 87,216 metric ton bay cap by
statute, and must pass a new bill in order to reduce that cap to the 51,000
metric ton level established by Amendment 3.
The entire Atlatnic menhaden reduction fishery is prosecuted by a single company, Omega Protein Corporation, a U.S. subsidiary of the Canadian
aquaculture conglomerate Cooke Inc.
Omega Protein’s Atlantic menhaden reduction operations are based in the
town of Reedsville, Virginia, where the company is an important employer. That, coupled with other traditional political
tactics such as strategic
campaign contributions, give Omega’s lobbyists some real leverage in the
Virginia legislature. Omega
was opposed to the 51,000 metric ton bay cap, and apparently convinced legislators not to put such harvest reduction in place.
Virginia’s failure to adopt the 51,000 metric ton cap
constituted technical non-compliance with the ASMFC’s menhaden management plan,
and put the ASMFC in an uncomfortable and seemingly no-win position.
“Within 30 days after receiving a notification from the Commission…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 comply with the relevant 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. [some internal formatting deleted]”
If the answer to both questions is yes,
“the Secretary shall declare a moratorium on fishing in the
fishery in question within the waters of the noncompliant State. The Secretary shall specify the moratorium’s
effective date, which shall be any date within 6 months after declaration of
the moratorium.”
That all sounds good.
But in
2017, New Jersey adopted recreational summer flounder regulations that did not
comply with the ASMFC’s summer flounder management plan, and the Secretary
decided to overturn the ASMFC noncompliance finding, doing so without evenconsulting those persons within the National Marine Fisheries Service who hadthe most knowledge about the fishery. It
seemed to be a purely political decision.
The Secretary made such decision despite the fact that the
ASMFC found New Jersey out of compliance after receiving clear scientific
advice from the its Summer Flounder Technical Committee, which advised that
management measures proposed by New Jersey did not meet the conservation goals
of the summer flounder management plan.
No other ASMFC state supported New Jersey’s position.
The Chesapeake Bay menhaden reduction cap isn’t on such
solid scientific ground. Amendment 3
noted that
“The intent of the Chesapeake Bay Menhaden Reduction Fishery Cap
is to ensure protection of an important nursery ground for menhaden. This protection helps support menhaden
recruitment in the Bay and protects a forage base for predators such as striped
bass.
“The Chesapeake Bay Menhaden Reduction Fishery Cap was
originally implemented in 2005 to prevent the localized depletion of
menhaden. Given the concentrated harvest
of menhaden within the Chesapeake Bay, there was concern that localized
depletion could be occurring within the Bay.
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.’
“While the AMRP peer review 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.”
Omega focused on that language when opposing the Chesapeake
cap, as it certainly cast doubt on the question of whether such cap was “necessary
for the conservation of the [menhaden] fishery.”
As a result, the Management Board tried to avoid a compliance
showdown with Virginia, fearing that any noncompliance finding would again be overturned. It repeatedly deferred action on a
noncompliance motion until, at its February 2019 meeting, it formally recognized
the fact that while Virginia had not adopted the reduction fishery cap, the fishery had landed far less than 51,000 metric tons of menhaden from the Bay in
recent years, and voted to indefinitely postpone a vote on noncompliance unless
and until Virginia’s annual Chesapeake Bay reduction landings exceeded that
amount.
And so, of course, that’s just what happened later in the year. On
September 12, Omega announced that it would exceed the ASMFC’s 51,000 metric
ton bay cap, which it referred to as “arbitrarily low” and “unscientific.” That announcement, and later confirmation
that the cap had, in fact, been exceeded, triggered a series of unexpected and,
in some cases, unlikely events that ultimately resulted in Omega shooting
itself in the foot and the Secretary of Commerce announcing that a moratorium
on Virginia menhaden harvest will be imposed next spring.
One could say that it all came down to something we learn at some point in
a junior high math class: When you
multiply two negative values together, the result is positive.
In this case, the first negative was Omega's arrogance.
The company could have harvested a full 51,000 metric tons of
menhaden from Chesapeake Bay, not exceeded the cap, and not triggered a vote on
Virginia noncompliance. The Management
Board would have continued to avoid confrontation, and ignore the fact that the
Virginia legislature had not yet adopted the new bay reduction cap.
Instead of that sort of measured behavior, Omega
not only blew through the cap with landings that might, finally, approach
67,000 metric tons, but it issued a defiant press release that effectively taunted
the ASMFC and challenged it to take any action in response, saying, in part,
that
“Omega Protein strictly complies with Virginia law,
and strives to comply with all recommendations of
the Atlantic States Marine Fisheries Commission, [emphasis added]”
making it clear that Omega felt that the ASMFC’s management
plans did not dictate the company’s actions.
Omega then went on to term the cap
“a political compromise, and not…a scientific necessity,”
and offered up words of praise for the Virginia legislators’
inaction while again condemning the ASMFC, saying
“Given that the Atlantic menhaden stock remains healthy and
robust, the Virginia General Assembly did not codify the ASMFC’s 2017 decision
to slash the Bay cap over 41 percent to 51,000 mt, an arbitrary figure that was
not scientifically derived.”
But such action, which was strongly supported by
conservationists and recreational fishing, might have had no more success than
the New Jersey finding of two years before, had the second negative not been a factor.
That second negative was the influence of commercial
interests, and commercial lobbyists, on American politics. Few people outside of the corporate sphere
would deem such influence to be a good thing, but in this case, it really helped
the menhaden.
Back
in 2017, a number of organizations connected with the fishing tackle and
boatbuilding industries, along with some affiliated “anglers’ rights” groups, convinced the
Secretary of Commerce to extend the recreational red snapper season in the Gulf
of Mexico, in violation of federal law, presumably because the
scientifically-determined season severely limited the amount of time when
people could fish for red snapper, and so also limited the potential for
short-term industry profits. The
Secretary was sued as a result, and ultimately compromised with the plaintiffs
in order to avoid losing the case in court.
Thia time hings worked out differently for menhaden, because the
ASMFC wasn’t attempting to restrict recreational landings; had that been the issue, it’s pretty likely that groups such as the American Sportfishing
Association would either have not gotten involved, or would have actively opposed
the action. Instead, the ASMFC was
seeking to restrict a fishery that might negatively impact the recreational
fishing and boating industry if it did cause localized depletion of menhaden, or
deprived recreationally-important species of needed forage.
In addition, even if a greater abundance of menhaden didn’t
lead to a greater overall abundance of sport fish—and, as mentioned earlier,
the jury’s still out on that—the presence of menhaden schools makes sport fish a
lot easier to catch, and thus encourage anglers to go fishing--and to buy more gear. As anyone
familiar with the “snag-and-drop” fishery for striped bass knows, the presence
of plenty of menhaden can turn a raw and inexperienced angler into an overnight
“expert,” simply because the menhaden schools make it so much easier for
anyone, regardless of experience, to catch fish. One Rhode Island charter boat captain has even admittedin print that
“Snag and drop isn’t brain surgery.”
That made a big difference, because before they showed up,
most of those fighting for menhaden represented various conservation groups, and the current
administration in Washington views conservation groups in about the same
way that a resident of Manhattan’s Trump Tower might view a pile of dog crap
sitting on the sidewalk right outside his building’s door: He’ll seek to avoid it by the widest berth
possible in the short term, before eventually asking someone to have it swept
cleanly away.
Once the fishing and boatbuilding industries became involved, the conflict was no longer about troublesome conservationists trying to harass and hamper
a valued corporate citizen. It became a battle of corporate interests, with most of
the profits, most of the influence, and most of the potential political grease
coming down on the menhaden’s side.
And so a big conservation positive was created, and so an
impending moratorium was born.
The question is, what will Omega do next?
It doesn’t appear that the company with challenge the
Secretary’s decision in court. After the Secretary’s
decision was released, Omega issued its own release which retained its earlier
defiant tone, saying
“This is the first time that a moratorium has been placed on
a fishery that is not overfished and is healthy by every measure. Omega Protein has historically supported the
Commission process and respected the decisions of the ASMFC. However, the company remains firm in its
belief that fishery management should be based on science, not on politics.”
At the same time, the company stated that
“Omega Protein will work with both the ASMFC and the
Commonwealth of Virginia to lift the moratorium and bring the fishery back into
compliance. The company looks forward to
working with the commission in the coming months as we move toward
ecosystem-based measures, and will continue to support science-based fishery
management and a healthy menhaden fishery.”
What does all that mean?,
Probably that Omega is taking the long view,
having decided that it isn’t worth investing the money and effort that it
would take to challenge the Secretary’s decision in court, even though there is
a decent chance that Omega would ultimately win. Instead, Omega is most likely working on a
strategy that would relieve it of regulatory burdens, while remaining a part of the ASMFC process.
Omega’s reference to “ecosystem-based measures” is probably
the key to its plans.
For a number of years, the conservation community has been
arguing that forage fish shouldn’t be managed simply for sustainable harvest;
forage fish management should also assure that there are enough baitfish left
in the water to fulfill their role in the coastal food web. One
of the ASMFC’s purposes, in adopting Amendment 3, was to pursue the development
of menhaden-specific “ecological reference points” that might further that sort
of forage fish management.
Such ecological
reference points are expected to be included in a stock assessment that will be
presented to the Management Board at its February 2020 meeting, The stock assessment process is conducted out in
the open, with the public allowed to monitor its progress. While I have not been following the discussions,
and will await the assessment’s release, I would be shocked if Omega didn’t
have a representative present, or at least listening in, at every public
session.
And given how sanguine Omega seems to be about ASMFC “mov[ing]
toward ecosystem-based measures,” it’s a good bet that any ecological
reference points that emerge will not significantly constrain the reduction
fleet’s landings. Rumors I’ve heard support that assumption.
On the other hand, any ecosystem-based reference points will
be calculated on a coastwide basis; there are no specific reference points for
Chesapeake Bay. That being the case, I
wouldn’t be surprised to see Omega support the inclusion of ecosystem-based
reference points in any amendment or addendum that arises out of the upcoming
stock assessment, ostensibly showing its willingness to work with the ASMFC and
the conservation community, while at the same time noting that because such reference
points have no Chesapeake-specific component, the Bay reduction cap must be removed from the management plan.
Of course, that wouldn’t address the 51,000 metric ton bay cap
that Virginia would have put in place by then, to comply with the ASMFC’s
management plan. Thus, Omega will also
have to have an effective legislative strategy.
“This bill does harm industry and it does risk jobs,”
although it doesn’t make sense that a bill that would hand
over management of a fishery to professional fishery managers would harm anyone
at all—unless the industry and jobs in question were dependent upon landing more
fish than good science would allow.
So expect Omega to fight to limit any Virginia legislation
to reducing the bay reduction cap, and to continue to oppose
transferring management authority to the Marine Resources Commission.
And don’t be surprised if Omega goes farther than that. If I were in Omega’s place, I would try to
include a two- or three-year “sunset” provision in any reduction cap bill. That way, Virginia will come into short-term
compliance with the management plan, but if the ASMFC drops the bay reduction
cap from the management plan, the cap would also disappear fromr Virginia law, after a few years, with no legislative
action needed. And if the ASMFC retained
the cap, Virginia law could easily be amended to remove, or merely extend, the sunset provision.
I suspect that some folks will be annoyed that I mentioned
such things in print, and will claim that I’m giving Omega ideas. But that company has been around for more
than a century, while it watched all of its competitors either become a part of
Omega or go out of business. Omega didn't become the sole survivor in its industry by being stupid, or by not being
politically astute. If I could think of
such things, we can rest assured that Omega has thought of them, too.
In the meantime, there is no doubt that the ASMFC, the
menhaden, and the conservation community scored a good win this week. At the least, the Secretary of Commerce didn’t
further undermine the ASMFC’s authority by again overturning a noncompliance
finding. At best, the Secretary
established a new standard for fishery conservation at the ASMFC, which
considers a species’ role in the ecosystem, and not merely sustainable landings
when evaluating management measures, while better assuring that localized
menhaden depletion, even if transitory, won’t occur in Chesapeake Bay.
It’s a good win, but it’s one that will have to be defended,
for the fight over menhaden management is still far from done.
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