IF THE CRITICS OF MRIP ARE RIGHT

Estimating recreational fishermen’s landings is hard.

Unlike commercial fishermen, recreational fishermen don’t have to report their landings, don’t offload their catch to licensed dealers who are also required to file their own reports, and aren’t concentrated in a relative handful of ports along the coast.  Instead, recreational fishermen are far more abundant than their commercial counterparts, and dock their boats not only at large marinas, but at smaller facilities or even in their own back yards.  There is also a large contingent of anglers who trailer their boats  and have no need of docking facilities at  all, along with another large contingent who eschew powerboats, and prefer to fish from shore or from kayaks and similar, hand-powered vessels.

The size and diversity of the recreational fishing community makes it impossible for fishery managers to contact each angler individually, in order to get an accurate estimate of recreational landings.  Instead, managers must try to gauge angler effort, catch and landings by means of a survey that samples only a very small proportion of anglers, who they hope are representative of the larger angling population.

The quality of the data produced depends on the quality of the survey used.  In the past, the surveys were not very good.  

Prior to the 1980s, there was no regular, formalized estimates of recreational fishing activity; the sampling that occurred was conducted under very lax standards that rendered it unreliable.  In 1979, the National Marine Fisheries Service adopted the Marine Recreational Fishing Statistical Survey, usually shortened to “MRFSS,” which was a substantial upgrade from the surveys conducted earlier, but still had many serious shortcomings.  MRFSS was frequently criticized by both managers and recreational fishermen, and a 2006 study by the National Academy of Sciences found that a complete overhaul of the survey was needed.

Thus, NMFS replaced MRFSS with a new Marine Recreational Information Program, or MRIP.  More than a decade of design, pilot projects, academic review and program upgrades passed before the new program became fully implemented.  However, the end result was a survey that used new methodologies to provide more accurate estimates of recreational effort, and so of anglers’ catch and landings.

Not surprisingly, the new, fully-implemented program, with its more accurate estimates, provided results different from those obtained through MRFSS or prior versions of MRIP.  That was particularly true with respect to angler effort, which was never adequately captured by earlier surveys.

Now, the vociferous critics of MRFSS and the early incarnations of MRIP, who had long claimed that fishery management decisions were based on inaccurate data, have a problem.  NMFS has developed a recreational fishing survey that, according to a National Academy of Sciences study released in 2017, is fundamentally sound, and seemed to address most of the previous criticisms.

The only problem was that the new, more accurate survey methodology showed that anglers were catching and killing a lot more fish than anyone had previously believed.  So the critics, almost all of whom claimed that recreational landings were being overestimated and that regulations were thus too restrictive, found themselves on the horns of a dilemma:  They got the more accurate survey that they asked for, but it was giving them answers that were just the opposite of what they had wanted.

Far from revealing that anglers were really catching fewer fish, and sol leading to more relaxed regulations, the fully-implemented MRIP revealed that they were really catching more.

A lot more.

That wasn’t, in itself, a bad thing, because the fact that more fish were being caught also meant that in order to support such higher levels of landings, the fish stocks had to be larger and/or more productive than managers had previously believed.  As Meredith Moore, writing for the Ocean Conservancy, explained,

“Taken at face value, these numbers are going to come as a bit of a shock to many recreational fishermen.  The new surveys will likely show that the amount of fishing from the recreational sector (for instance, the number of trips they take, or the number of hours that they spend out on the water)—known as their effort—is three to five time higher then that old surveys indicated.  This is likely to translate into higher catch levels as well.

“…All of the new MRIP calibrations will need to be run through individual stock assessments for each fish stock before we understand how these changes will impact our integrated system of fisheries science and management.  And you can get some unintuitive results.  For instance, it’s easy to imagine that higher recreational catch means they were catching far too much—if you compare revised catch levels to their old catch limits, it will certainly look that way.  But higher catch levels, combined with our independent understanding that the stocks have been getting healthier, could mean that there were more fish out there than we thought, or that the fish were more productive (better at reproducing) than we understood.  So, while we definitely could get some bad news out of individual stock assessments, jumping to conclusions now is premature.  It will take a couple of years of number crunching (stock assessments can take a while) to figure out which stocks may need more attention, and which are still doing fine.”

And, so far, that’s how things have been working out.  While a benchmark stock assessment for striped bass, as well as an operational assessment of the bluefish stock, both of which incorporated the new recreational data, revealed that those stocks have become overfished, a benchmark assessment of the summer flounder stock, as well as operational assessments of scup and black sea bass, show both of those populations to be doing well.

Of course, that hasn’t quieted the critics, who are now intent on discrediting the new MRIP estimates, even if such assessments are accurate.  Some of the raving has only the most tenuous connection to reality; one Maryland party boat captain, for example, recently wrote that

“Recreational fishers are due a 31% cut in summer flounder/fluke quota in 2020.

“In the coming years its expected that commercial black sea bass quota will be increased upwards of 70% while recreational quota takes a 29% hit…

“Recreational scup quota will be cut 59% while Commercially [sic] allowed landings rise sharply.

“On & on…

“I’ve been trying to warn management for years.  Decades actually.

“What a mess.”

But the real mess lies in his misapprehension and/or miscommunication of what’s truly going on.

Presentations made at the October 2019 joint meeting of the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board show that the recreational summer flounder “quota” (actually the “recreational harvest limit”) for 2020 will be 7.69 million pounds, exactly what it was in 2019, with no “cut” made at all.

In the case of black sea bass, far from the “recreational quota tak[ing] a 29% hit” the 2020 recreational harvest limit, at 5.48 million pounds, will be nearly 50 percent higher than the 2019 harvest limit of 3.66 million pounds.  That hardly sounds like a problem.

And while scup have experienced below-average recruitment in 2016, 2017 and 2018, leading to a decline in biomass and a related decline in both commercial quota and the recreational harvest limit, the recreational limit will only drop from 7.37 million pounds in 2019 to 5.92 million pounds in 2020.  While that’s still about a 20 percent reduction, it falls far short of the hysterical claim that “recreational scup quota will be cut by 59%.”  (The claim that “Commercially allowed [scup] landings will rise is equally inaccurate, as the commercial scup quota will fall from 23.98 million pounds in 2019 to 20.11 million pounds—about 16 percent less—in 2020; “landings” may not change at all, as a lack of market demand has led to the commercial sector chronically underfishing its annual quota.)

Having said that, it’s true that the new data shows that recreational landings have been so much higher than managers thought that 2020 landings for black sea bass and scup would have to be reduced substantially in order to constrain anglers to or below the recreational harvest limit (updated recreational estimates for summer flounder came out nearly a year earlier, and thus were incorporated into 2019 regulations, which were no more restrictive than those in place for the 2018 season—there was no “cut” of any sort then or now).

But even those seemingly needed reductions were not adopted at the December joint meeting of the Council and Management Board, even though likely 2020 landings will probably exceed the recreational harvest limit for both species, and such landings will probably result in the overall commercial and recreational catch exceeding the acceptable biological catch for black sea bass.  It is not yet known whether NMFS will accept that action, or require that landings be constrained within the recreational catch limits, as federal law seems to require.

Whether or not landings reductions are ultimately imposed on the recreational scup and black sea bass fisheries, it’s clear that any such reductions will be due to anglers landing too many fish, and not to draconian cuts in the recreational harvest limit.  So we see the landings estimates challenged, with representatives of the recreational fishing industry calling them

“ludicrous”

and

“unbelievable,”

although such critics consistently present only opinion, and no hard and verifiable data, to support their remarks.

But, just for the sake of argument, let’s assume that the critics are right.  Let’s assume, despite all of the objective information to the contrary, that MRIP doesn’t work and severely overestimates recreational landings.

Where are we then?

To start, we end up with a lot fewer fish in the ocean.  Black sea bass provide a good example.  The recent operational assessment indicated that black sea bass biomass, which peaked in 2014, stood at about 240 percent of the target level at the end of 2018; the stock is only expected to fall to about 160 percent of target by the end of 2021.  That’s a much more optimistic view than that put forward by the benchmark assessment released in early 2017, which estimated that biomass had peaked around 240 percent in 2014, and would fall to somewhere between 123 percent and 160 percent of target by the end of 2019.

One of the big differences between the estimates of black sea bass abundance in the benchmark and operational assessments was the higher recreational landings estimates, which led to the biomass estimate being revised upward.  Without the new recreational estimates, we’d be looking at a much smaller current biomass, and even with the lower landings estimate, would probably be looking at steadily tightening regulations as the spawning stock biomass continues to decline.

So at best, from a recreational regulations perspective, even if MRIP’s critics were right, we’d probably be in about the same place we are in today, because landings estimates and biomass estimates are inextricably linked.

From a biological perspective, things aren’t quite so benign.  

If MRIP’s critics are right—as unlikely as that possibility is, it still remains a possibility—the higher commercial quotas and recreational harvest limits would lead to overfishing on a large scale.  

That being the case, so long as fishery managers have any doubts at all about MRIP’s accuracy, they should err on the side of caution and assure that overall fishing mortality remains well within the acceptable biological catch, and maybe even increase the buffer between the ABC and overfishing limit a bit, to be sure.

Not that doing anything like that would silence the critics, who will continue to yowl so long as their catch is constrained. 

Back in 2009, the party boat captain I quoted above wrote

“Last year and the year before the Marine Recreational Fishing Statistics Survey—MRFSS—said that Maryland shore flounder fishers out-fished the party boat and charter boats 18 & 12 to one.

“How they can make that assertion and have it stick I have no idea.

“Now MRFSS has us to filling the recreational quotas for scup, summer flounder (fluke) & black sea bass for the entire coast:  Not just Maryland—everywhere.  There is the distinct possibility that these three fisheries will be closed for the rest of 2009 in the coming week…

“Numbers, numbers, numbers.  Management is looking at state by state//recreational-commercial [sic] numbers, the landings data.  And, great mercy, the recreational numbers are from MRFSS…”

So it’s pretty clear that when it came to MRFSS, he wasn’t a fan.

Yet toward the end of his generally fact-free rant about MRIP that I quoted before, he wrote

“Please write your DC reps and Fed/State Fisheries personnel (addresses far below) and ask that they reinstate MRFSS (NOAA’s old recreational catch estimating program) before MRIP disrupts ALL Marine Fisheries & perhaps quite soon, causes fish stocks to ,  up and down the Mid & North Atlantic.  [emphasis added]”

As I noted above, there is a chance that, if the MRIP critics are right, overfishing will result from the new biomass estimates, although even if that is the case, we can hope and expect managers to detect the downward trends in abundance before much is any crashing takes place.

Still, that writer's unexpected nostalgia for MRFSS doesn't mean that the critics off MRIP are right.  Instead, it's just evidences that fact that they criticize MRIP and its data solely because it doesn’t conform to their view of the world.

FISHERMEN DENY THE REALITY OF OVERFISHED STOCKS

It doesn’t really matter where you happen to be.  As soon as a stock assessment is released, that finds a particular stock to be overfished, fishermen will flock to the follow-on hearings, and offer varied and often creative theories to explain why the science is wrong, and fish stocks are as abundant as they ever were.

This week, some southern flounder news caught my eye.

Southern flounder support important commercial and recreational fisheries along the south Atlantic coast, but in recent years, the regulation of those fisheries hasn’t been able to constrain landings to sustainable levels.  As a result, the southern flounder stock suffered a precipitous decline.

A southern flounder stock assessment released by the State of North Carolina in January 2019 stated that

“The fishing mortality reference points and the values of F that are compared to them represent numbers-weighted values for ages 2 to 4.  The ASAP model estimated a value of 0.35 for F_35% (fishing mortality target) and a value of 0.53 for F_25% (fishing mortality threshold).  The estimate of F in 2017 is 0.91, which is above the threshold (F_25%=0.53) and suggests overfishing is currently occurring.  The probability the 2017 fishing mortality is above the threshold value of 0.53 is 96%.

“The stock size threshold and target (SSB25% and SSB35%, respectively) were estimated using a projection-based approach implemented in the AgePro software.  The estimate of SSB35% (target) was 5,452 [metric tons] and the estimate of SSB25% (threshold) was 3,900 mt.  The ASAP model of SSB in 2017 was 1,031 mt, which is below the threshold and suggests the stock is currently overfished.  The probability that the 2017 estimate of SSB is below the threshold value of 3,900 mt is 100%.”

Thus, the stock assessment demonstrated that the summer flounder stock was badly overfished and experiencing severe overfishing.

North Carolina is planning to take meaningful action to end overfishing and rebuild the summer flounder stock.  In order to do that, 2019 landings had to be reduced by 52 percent, and landings in 2020 will have to be cut further, to achieve a 72 percent reduction.  North Carolina shut down the 2019 fishery on September 4, although it reopened the commercial season for a short period later during the fall, with the length of that season differing from region to region.  The commercial and recreational seasons will also reopen in 2020, although the lengths of such seasons are not yet known.

Predictably, people who profit from the summer flounder fishery aren’t happy with the current and pending southern flounder regulations.  They’re challenging the conclusions of the stock assessment, and questioning the validity of the data that led to those conclusions.  And predictably, they have no valid, countervailing data on which to base such challenges.  Instead, they’re falling back on the same sort of claims and arguments that one always hears, every time a stock is declared overfished or more restrictive regulations are proposed.

The Island Free Press, which covers stories that affect the North Carolina coast, reported that at least one fisherman made the inevitable comment that

“I’ve been fishing for 50 years, so I should know a little bit about it.  The [flounder fishing this year] was the best I’ve seen,”

thus suggesting that the assessment was wrong and that no further restrictions were needed.  Such claim is reminiscent of the sort of thing heard up in New England, after a stock assessment revealed that cod stocks had crashed, perhaps as low as to just 4 percent of the target biomass, but fishermen still tried to convince managers that

“Cod are everywhere, we can’t avoid them.”

Because if fishermen actually admitted that fish were having a problem, that would justify managers’ efforts to fix things.  

And that would mean new regulations.

Another fishermen made the argument that the North Carolina stock assessment was probably wrong, for the simple reason that fishermen weren’t willing to believe that the southern flounder stock was facing a problem.  He said

“It really feels like there is a fact gap here…how could everyone [here] be so wrong?  It’s difficult to measure a shifting [flounder population] with environmental factors, hurricanes, [etc.]  Don’t disregard hundreds of years of fishing experience that says the data doesn’t sound right.

“Have you been persuaded after listening [to the people here] to keep an open mind to the question of ‘Could the conclusion that we’ve been overfished be overestimated or incorrect?’”

To him, peer-reviewed data was far less reliable than fishermen’s opinions. 

That’s not a rare sentiment. 

Other fishermen are willing to admit that fish have become a little scarce, but aren’t willing to admit that fishing is a part of the problem.  In the North Carolina southern flounder debate, that took the form of blaming weather events, such as hurricanes, impacting environmental conditions along the coast, and leading to problems caused by storm-related debris or pollution runoff from pig farms.  Others argued that North Carolina’s problems were caused, in part, by fishing in other states’ waters, and couldn’t be fixed by North Carolina alone.  

Once again, the suggestion was that North Carolina shouldn’t further restrict fishermen’s landings

Again, such views are echoed in other fisheries management debates. 

A recent operational stock assessment found that bluefish has become overfished.  Yet down in New Jersey, a party boat captain casually rejected that finding, saying

“I don’t think they’re really overfished.  Up until [Hurricane] Sandy they used to stay in the area of the Mud Buoy.  After Sandy, they’ve been coming in and leaving.”

The captain was convinced that the population was still healthy and that the fish were just moving around, “coming in and leaving;” the possibility that the fish were no longer reliably available on traditional fishing grounds, because fish numbers were down, apparently never entered his mind.

Because, once again, if the fish were really overfished, managers would be justified in doing something about it.

There is also the ages old notion that bluefish, more than any other fish, are subject to some wort of mysterious “cycle” in which they suddenly disappear, for no clear reason, before returning to abundance, with no need for management intervention, at some point years in the future.

Comments made at a series of meetings held in 2018, in connection with a proposed amendment to the fishery management plan include the thoughts of a New York party boat captain, who was also a devotee of the “cycle” hypothesis and said that

“Just as a historical point of view, bluefish has gone in cycles.  I remember my father telling me, he started in the bluefish fishery in 1955 and it was robust, and then 1959 and all of a sudden there were none.  It went for a 3-4-year period with none.  You would have a small fishery in the fall and the same in the spring.  Suddenly, in the beginning of the 1960s it changed, the only time you caught any fish is when you were in deep-water and offshore, and when they were plentiful in shore [sic] they were never seen offshore.  The bluefish do not stay in a certain place any given time.  You can go by past performance to predict future performance, but it is very difficult to do.  Taking this into consideration, I think everything should remain status quo.  This is not an emergency, and historically it shows that this is not an emergency fishery.  You have ebbs and flows and that is how the fishery goes.”

S. Kip Farrington, in his classic book Atlantic Game Fishing, argued that the bluefish population waxed and waned in an eleven- to thirteen-year cycle;  at  a  recent meeting called by the New York Department of Environmental Conservation to discuss commercial quotas, a number of fishermen maintained that bluefish populations fluctuate on a shorter, 10-year cycle. 

However, such regularly-occurring patterns are recognized  in  neither the  latest  benchmark  stock assessment nor in the operational assessment released in 2019.

Instead, the operational assessment, which incorporates the most recent data, shows that the bluefish population has been suffering from overfishing since at least 1985, and that, probably in response to such unsustainable levels of fishing mortality, the population quickly declined from relatively high levels in the mid-1980s, and since then has fluctuated just above and below the threshold that defines an overfished stock.  

The stock first became overfished in 1989, then apparently benefitted from Amendment 1 to the rebuilding plan, which cut harvest, combined with improved recruitment in the early 2000s to rise just above the threshold, and became overfished again in 2014 after s a long-period of below-average recruitment began.

The biomass data shows no wide swings of abundance and scarcity that suggest that the much-referenced “cycle” is real, although bluefish abundance, like the abundance of most animals, demonstrated variations in year-to-year numbers. 

Yet many fishermen still insist that “the cycle,” rather than overfishing, is the cause of low bluefish abundance.

Fishermen are also very fond of arguing that bluefish, along with other species, are still perfectly abundant, but just went somewhere else.  That’s suggested in the party boat captain’s comments quoted earlier, which assume that the bluefish that used to be abundant in the Mud Buoy area are not “coming in and leaving,” although he seems at a loss to identify the places where the bluefish are coming from or leaving to.

It also emerges as a popular theme in the 2018 meeting comments.

Another representative of the New York party boat fleet first admits that

“We do not have bluefish in New York and New Jersey anymore the way we used to.  Warmer waters and changing habitat have altered prey availability and thus, bluefish abundance.  After traveling 35 miles of ocean at night, we at times, do not see any bluefish.  This is unheard of in relation to past years.”

Although his comments about prey availability fail to explain why the vast menhaden schools in New York Bight, which are large enough to support substantial numbers of humpback whales during the spring, summer and fall, are not adequate to support bluefish, he does at least admit that the bluefish are not there.  But then, he argues that

“The for-hire fishermen…should not have the quota taken away because there are no fish in the ocean.  It is not true; the bluefish are no longer here.  Migratory patterns have changed, and bluefish are now further offshore being caught in 700 feet of water.”

Another fisherman, who may have also been associated with the for-hire industry, made a similar argument, saying

“Assessments need to be reevaluated because we are now finding bluefish way offshore.  They are being caught on tilefish trips in 900 feet of water.”

At a subsequent meeting, a New Jersey gillnetter agreed that the bluefish were offshore, but disagreed about the abundance of prey in inshore waters, with a summary of his comments noting

“Something inshore is happening that shifts bluefish all offshore.  Beach replenishment is an issue that could be moving the fish offshore.  He also noted that prey are booming recently but there are no predators…”

Other people also made comments suggesting the bluefish were really offshore, and not overfished, and even the operational assessment suggested that “anecdotal evidence”—that is, fishermen’s reports—suggested that abundance had shifted at certain times.  

And there is no doubt that bluefish are really out there.  I remember fishermen trolling for tuna in Hudson Canyon—more than 70 miles offshore—and catching bluefish that far offshoree as long ago as the mid-1980s, and I’ve caught plenty of bluefish trolling for tuna and chumming for sharks more than 40 miles off the beach.

The last benchmark stock assessment clearly states that

“Bluefish, Pomatomus saltatrix, is a coastal, pelagic species found in temperate and tropical marine waters throughout the world an inhabits both inshore and offshore waters along the east coast of the United States.  [emphasis added]”

So the comments that bluefish are offshore are hardly new or surprising.  But they run into trouble when they suggest that finding bluefish offshore is something driven by recently changing conditions, or suggest that the stock is healthy because the stock has recently shifted offshore.

A few--but not all--of the bluefish have always been there.

But then, a few striped bass have always wandered offshore on occasion, too, but that didn’t stop Rep. Lee Zeldin (R-NY) from criticizing the latest benchmark striped bass stock assessment, claiming that

“New York area fishermen faced a major blow this season due to ASMFC’s decision to cut the Atlantic Striped Bass fishery by up to 17% next year and recommend maintaining the current ban on striped bass fishing in the Block Island Sound Transit Zone.  Rather than rooting these decisions in local stock assessments, ASMFC uses flawed data that measures the Atlantic Striped Bass stock based on the entire eastern seaboard.  However, it fails to account for Atlantic Striped Bass outside of the 3-mile fishing area, assuming fish abide by arbitrary bureaucratic boundaries.  Alternative data that shows the Striped Bass stock is in a better place outside the 3-mile limit was not only thrown out by the Commission, but the Commission also moved to no longer perform data collection in those waters, virtually ensuring that any future decision regarding the Striped Bass Fishery will be based on flawed data in perpetuity.  [emphasis added]”

Again, the findings of the benchmark stock assessment, that the striped bass was both overfished and experiencing overfishing, was challenged on the basis of “flawed data” and the bass being somewhere in the vast waters offshore, with only “alternative data”—a term that pretty well translates into made up, imaginary or statistically-invalid data—telling the supposed truth that the stock was, in fact, OK.

It's all just part of a venerable pattern.

As is the final leg of the “they’re not overfished” platform.  

Along with “the data is bad,” “it’s the cycle,” and “they’re just somewhere else,” you can depend on someone arguing that “it’s not the fishermen that caused the stock to decline; something else is eating them.”

In the case of bluefish, that “something else” is apparently mako sharks.  In the course of the 2018 bluefish meetings, a Massachusetts charter boat captain tried to convince fishery managers that

“Abundances of (mako) sharks have a significant impact on bluefish populations.  This is very important to take into account when looking at ecosystem-based management.”

while a New York party boat operator gave a more colorful account, including a photo, of an alleged

“650 lb mako shark, this shark at the time had 9 bluefish between 10-15 lbs in its stomach, and not a tooth mark in the bluefish.  And this would happen every night.  The blues would come in first, and then the sharks would come in after that and then everything would clear out.  Now since we’ve pretty much ended recreational mako shark fishing by making the limit larger than most sharks that are in near shore waters we have unleashed this species of shark that goes across the ocean, same as the bluefish.  They follow bluefish across the ocean and harvest them, daily.”

While makos do like to eat bluefish, the mako population is in far worse shape that the bluefish population is, both overfished and experiencing overfishing, and even with the most conservative management measures—which have not yet been imposed—unlikely to recover for at least 50 years.  

So blaming the mako for the bluefish’s decline just isn’t credible.

But it’s not about credibility; it’s about finding a way to deny that a species is overfished.  Thus, a Cape Cod fisherman is more than willing to blame seals for the decline of winter flounder, American eels and striped bass, and say that

“If we didn’t have any seals these fish would return,”

even though, looking at the problems besetting those species, it’s clear that isn’t true. 

In the same way, fishermen blame cormorants for the lack of winter flounder, and blame gray seals off Cape  Cod for depressed  herring and cod populations. 

Because it’s always easier to blame a shark, or a bird, or a seal, or to claim that the data is bad, the fish are offshore, or there’s some sort of immutable cycle, than it is to accept the truth that a stock’s overfished.

Because once you admit that a stock is overfished, you then need to do something about it.

And that’s when the hard work begins.

COMMERCE SECRETARY SUPPORTS ASMFC'S VIRGINIA MENHADEN NONCOMPLIANCE FINDING. WHAT'S NEXT?

Last Thursday, the Secretary of Commerce upheld the Atlantic States Marine Fisheries Commission’s finding that the Commonwealth of Virginia was out of compliance with a provision of the ASMFC’s Interstate Fishery Management Plan for Atlantic Menhaden.  As a result of the Secretary’s actions, a complete moratorium on menhaden fishing in Virginia waters will be imposed, beginning on June 17,2020.  Such moratorium shall remain in place until such time as Virginia comes into compliance with the management plan.

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.

Amendment 3 to that management plan established a 51,000 metric ton harvest limit for the so-called “reduction fishery” in Chesapeake Bay (the reduction fishery is an industrial-scale fishery that employs large purse seines that capture many tons of menhaden in a single set; such menhaden are then delivered to a shoreside plant that "reduces” the fish into oil and solids that are used in the production of products that range from paints and linoleum to animal feeds an human nutritional supplements).  

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.

The Atlantic Coastal Fisheries Cooperative Management Act provides that

“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.”  

Comments by counsel for the National Oceanic and Atmospheric Administration, NMFS’ parent agency, at the August 2018 meeting of ASMFC’s Atlantic Menhaden Management Board cast further doubt on whether the Secretary of Commerce would uphold any ASMFC finding that Virginia was out of compliance for not adopting the 51,000 metric ton bay cap.

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.”

That was a step too far, which Management Board members could not ignore.  Fed up with Omega’s arrogant intransigence, Management Board voted, with no dissent, to find Virginia out of compliance.  Even Virginia itself not only supported, but called for, such action.

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.”

So it was in the interest of organizations such as the American Sportfishing Association, National Marine Manufacturers Association and Coastal Conservation Association to ride to the menhaden’s rescue, and bring their political influence with them. 

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.

The right thing for the Virginia legislature to do is to cede sole management authority over menhaden, and allow the Marine Resources Commission to manage the species in the same way that it manages all other species.  Bills to do that have been filed, and defeated, in Virginia before, but the only reason to keep all of the management authority in the legislature is to allow Omega to impact the process to a degree that it couldn’t achieve with an MRC-managed species.  That’s why anglers and other conservationists want to see a bill giving the MRC management authority signed into law, and why Omega has opposes such a bill, saying in the past that

“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.