REBUILDING BLUEFISH: ADVERSITY SPAWNS OPPORTUNITY

The bluefish stock is overfished, and has been for at least the past five years.  The Mid-Atlantic Fishery Management Council has now begun working on a rebuilding plan, which must be in place for the 2022 season.  Part of the process of drafting that plan involves a series of scoping hearings that will be held between February 13 and March 4 of this year, and provide stakeholders with opportunities to comment on possible management measures.


The scoping hearings will address the pending Bluefish Allocation and Rebuilding Amendment to the Bluefish Fishery Management Plan.  That document began life about two years ago as the Bluefish Allocation Amendment, which threatened to permanently shift partof the recreational allocation to the commercial sector, but went through a metamorphosis a few months ago after an operational stock assessment found that recreational fishermen were killing far more bluefish than previously thought.  That finding pretty well killed any thoughts of a recreational/commercial reallocation, and made rebuilding the stock the Council’s primary objective.


Because the bluefish stock is overfished, the Amendment must include measures that rebuild the stock to the target level within ten years. However, just what such measures should be is still up for debate.  In addition, the scoping hearings for the Amendment will allow stakeholders to comment on a wide array of other issues related to the bluefish fishery, including the goals and objectives of the management plan.


In those goals and objectives, opportunity lies.


As the scoping document for the Amendment notes,

“The original [fishery management plan] (1990) contains the first set of goals and objectives.  The five goals of the FMP are the following:

1.       Increase understanding of the stock and the fishery.

2.       Provide the highest availability of bluefish to U.S. fishermen while maintaining, within limits, traditional uses of bluefish (defined as the commercial fishery not exceeding 20% of the total catch).

3.       Provide for cooperation among the coastal states, the various regional marine fishery management councils, and federal agencies involved along the coast to enhance the management of bluefish throughout its range.

4.       Promote compatible management regulations between State and Federal jurisdictions.

5.       Prevent recruitment overfishing.

6.       Reduce the waste in both the commercial and recreational fisheries.”

That wasn’t an unreasonable set of goals in the context of 1990, when more than two-thirds of all bluefish caught by anglers were landed, and less than one-third released.  But today’s fishery is very different.  In 2018, the trend was completely reversed, with only about one-third of all bluefish caught being landed, and two-thirds being released.


Thirty years have passed since the goals listed above were written, and it’s well past time for the Council to consider new goals and objectives that reflect the reality of today’s fishery, which is dominated by catch-and-release.  The trend toward catch and release becomes even more marked when one realizes that a very substantial majority of the bluefish retained by anglers in 2018 were taken in the so-called “snapper” fishery, which targets young-of-the-year bluefish less than 12 inches long.  While snappers also accounted for most of the landings in 1990, larger bluefish made up a bigger portion of the landings than they do today.


Given the shape of today’s fishery, it would be entirely appropriate and, I would argue, very desirable to add a goal stating something like

“Maintain bluefish level at a high level of abundance, that allows anglers to encounter such fish on frequent occasions and supports a primarily catch-and-release fishery.”

You rarely, if ever, see such language in federal fishery management plans, but it is entirely consistent with the language of the Magnuson-Stevens Fishery Conservation and Management Act, which esplicitly lists, as one of its purposes, 

“to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and release programs in recreational fishing.  [emphasis added]”

Unfortunately, despite that clear statement of federal fisheries policy, saltwater fisheries managers, unlike their inland counterparts, have yet to embrace the concept of catch-and-release.  Instead, they focus on landings, and construct management plans around maximizing sustainable yield.  As mentioned above, the current Amendment began as a pure allocation amendment, that considered reducing the recreational share of bluefish landings because managers thought that anglers consistently failed to utilize—that is, land—their full harvest limit.  


The thought that anglers could utilize fish not by killing them and taking them home, but by catching them and letting them go so that they could be caught—and so utilized—again was a very foreign idea.  Even the current management plan contains a provision allowing for some or all of the “unused” portion of the recreational allocation to be transferred to the commercial sector on a year-by-year basis.


Yet such transfers undercut the very reason that anglers want to release most of the bluefish they catch.  They want to release fish so that they can maintain bluefish abundance and provide better, more consistent fishing in the future.  They don’t release them merely so that they can be killed by commercial fishermen and increase commercial landings.


The ironic thing is that if today’s anglers behaved in the same way as anglers did thirty, forty or fifty years ago, killing most or all of the bluefish that they caught, just to dump many of them back into the bay, toss them into a dumpster, or feed them to the tomatoes and roses, there would have been no talk of reallocation; instead, anglers only risked losing a portion of their allocation when they became more conservation-minded and began releasing their catch.


The operational assessment, which found bluefish to be overfished may have ended any chance of reallocation, but it hasn’t necessarily changed managers’ minds about what constitutes “use” of the bluefish resource, and made them more receptive to the idea of managing the fishery for abundance and catch-and-release.


But at least now, they’re thinking about it.  Two of the “management considerations” listed in the scoping document for the Amendment are

“Economic and intrinsic value of recreationally released fish”

and

“Value of unharvested quota.”

These are issues that the Council should examine very closely as they move forward with the Amendment.  Once again, Magnuson-Stevens shows the way.  National Standard 1 states that

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.”

Fisheries managers generally interpret that language to mean that they should manage for the highest yield that a stock can safely produce, but the definition of “optimum” yield suggests that such interpretation is not completely accurate.  The definition reads

“The term ‘optimum,’ with respect to the yield from a fishery, means the amount of fish which—

(A)     will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems;

(B)    is prescribed as such on the basis of maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and

(C)    in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield from such fishery.  [emphasis added]”

Given that definition, it’s not difficult to argue that setting the optimum yield for bluefish well below maximum sustainable yield, in order to provide greater abundance, would increase recreational opportunities, and that the benefit provided by such recreational opportunities would offset the loss of food production, since bluefish command relatively low price on the market—generally well under $1 per pound—and are usually released by anglers. 

It is also easy to argue that social and economic factors argue for greater bluefish abundance.  Anglers like to catch fish, and being able to engage in an active catch-and-release fishery for bluefish, that sees anglers frequently encountering fish, leads to more enjoyment, and encourages anglers to fish more often.  That can be seen in the data from the past five years (2014-2018), which shows that the number of fishing trips primarily targeting bluefish fell by 45% over that period, as bluefish abundance steadily declined.

Ironically, the economic losses from a decline in abundance hit the for-hire sector, which tends to harvest a higher proportion of its catch and frequently opposes efforts to conserve and rebuild the stock, particularly hard.  During the same 5-year period, the number of charter boat trips on the Atlantic Coast primarily targeting bluefish fell by 63%, while the number of party boat trips targeting bluefish nosedived by 93%, even though the bluefish regulations were unchanged throughout those years.  

Yet it is a pretty good bet that some for-hire operators will be stridently contesting the need for rebuilding when the scoping hearings are held.

The data clearly demonstrates that an abundance of bluefish benefits everyone.

Thus, it is in everyone’s interest to get out to the scoping hearings when they are held, and encourage the Mid-Atlantic Council to embrace a new management paradigm that seeks to ensure that an abundance of bluefish remain in the ocean, and deemphasizes the number of bluefish that lie dead on the dock.

NEW RESEARCH CONFIRMS THAT FISHERIES MANAGEMENT WORKS

It’s impossible to go to a fisheries meeting and not hear people disparage fisheries science and the effectiveness of fisheries management.  


When fish become less abundant, and managers propose regulations to rebuild fish stocks, fishermen invariably push back, arguing that the fish aren't in any trouble, but 1) have just gone elsewhere (bluefish to Africa and striped bass somewhere offshore are currently popular), 2) remain as abundant as ever, though most people, and particular scientists, don’t know where to find them, 3) are governed by unexplained “cycles” in which abundance waxes and wanes for reasons unrelated to fishing pressure or management efforts, or 4) don’t need management because, the fishermen aver without supporting data, the science is just plain “wrong.”


I was at a meeting of New York’s Marine Resources Advisory Council last Tuesday, and heard all of those opinions voiced over the course of just one four-hour session.


Fisheries management often isn’t very popular with fishermen, because fishermen often feel entitled to access resources without any restrictions, and restrictions lie at the heart of successful management efforts.


For many years, scientists have accepted the idea that managing fisheries is both a necessary and a desirable thing to do, but have always had some difficulty in articulating a clearly defined “why” that was true.  But a paper published in the Proceedings of the National Academy of Sciences of the United States of America on January 13, titled “Effective fisheries management instrumental in improving fish stock status” demonstrates through peer-reviewed analysis what we intuitively knew to be the case.


Fisheries management works.


The paper reflects the work of 23 scientists; the primary author, Dr. Ray Hilborn, is a respected and very well known professor employed by the University of Washington’s School of Aquatic and Fishery Sciences in Seattle.  In an introductory paragraph describing the significance of the paper, the authors claim

“This article compiles estimates of fish stocks from all available scientific assessments, comprising roughly half of the world’s fish catch, and shows that, on average, fish stocks are increasing where they are assessed.  We pair this with surveys of the nature and extent of fisheries management systems, and demonstrate that where fisheries are intensively managed, the stocks are above target levels or rebuilding.  Where fisheries management is less intense, stock status and trends are worse.  We review evidence on the half of world fisheries that are not assessed or intensively managed and suggest their status is much worse than where fisheries are intensively managed.  [emphasis added]”

In other words, the folks who keep arguing that fishery management isn’t needed, that “fish come and go,” or that when stocks decline, “it’s just the cycle” and there’s no need for management measures, don’t have scientific support for their claims.


That becomes clear after reading the paper, which draws from data containing biomass trends for the stocks responsible for 49% of reported global landings between the years of 1990 and 2005; such data included most of the catch from North and South America, Europe, Japan, Russia, Northwest Africa, South Africa, Australia, New Zealand and the regional fishery management organizations responsible for managing various tuna fisheries.

There was very little or no data from South or Southeast Asia, China, the Middle East, Central America or Central and East Africa.  

The conclusions that could be drawn from such data were clear.


First, fisheries management is effective at rebuilding species within a relatively short, 10-year time period, provided that managers don’t allow abundance to drop too low.  If abundance drops to half of the target level, defined as the biomass needed to produce maximum sustainable yield, rebuilding a stock within ten years is generally possible.  


That’s good news for United States fishermen, as most federal fisheries management plans, particularly those prepared by the New England and the Mid-Atlantic Fishery Management Councils, define the target biomass as the abundance of fish needed to produce maximum sustainable yield, and define the threshold biomass, which is the point where a stock is considered overfished and a rebuilding plan must be put in place, as one-half the target level.


Thus, provided that managers act promptly and effectively, most overfished stocks can probably be rebuilt within a relatively short time.


On the other hand, if a stock is allowed to collapse, defined as a biomass no more than 20% of the target level, the time it will take to rebuild such stock will be longer, and much more uncertain.  That could explain why efforts to rebuild stocks of cod, Atlantic halibut and some other species have had such limited success.


The data considered in the paper shows that, through 1995, average fishing pressure increased and average stock biomass declined.  Fishing pressure began to decline in 1995, and by 2005—just 10 years later—the average stock biomass was increasing.  


It’s impossible not to note that the Sustainable Fisheries Act of 1996, which first required federal fishery managers to end overfishing and rebuild overfished stocks within ten years if possible, was enacted near the beginning of that period, something that the authors of the paper recognized, or that the court’s decision in Natural Resources Defense Council v. Daley, which required federal fishery management plans to have at least a 50% probability of achieving their objectives, was handed down during that period as well.


Other nations also tightened their laws during the 1990s and early 2000s, although not all experienced the same level of success; while the reasons for that aren't clear, collapsed stocks (e.g., Newfoundland cod) and a lack of enforcement (as in the Mediterranean Sea) could well be factors.


Biologists involved with fisheries management issues have created a fishery management index, which scores management efforts based on a combination of management and enforcement factors.  Regions given higher scores, meaning that stocks were actively managed and management measures were actively enforced, generally had lower fishing effort (compared to the effort that produces maximum sustainable yield) and average biomass that was much higher (again compared to the biomass needed to produce MSY).


So active management and enforcement clearly benefits fish stocks.  What too many fishermen often ignore is that such active management and enforcement ultimately benefits fishermen, too.


When fish stocks are depleted, fishermen can’t catch as many fish.  That’s true if they are commercial fishermen, who are focused on maximizing landings, or recreational fishermen, who are often more focused on encountering and catching fish, but not necessarily landing them.  

The paper focuses on landings— on yield—and estimates how much yield fishermen lose by management that fails to end overfishing and/or rebuild overfished stocks.


It estimates that, on average, fishermen targeting the stocks for which data was available lose between 3% and 5% of their potential yield to excess fishing pressure, and a very significant 24% to 28% of potential yield to stocks that have not been restored to the target biomass level (assuming that B_target=B_msy, which is generally true for federally managed stocks in the United States, but may not be the case elsewhere).


That being the case, it’s time for fishermen, whether recreational or commercial, to stop trying to derail the fisheries management process, and instead embrace it with open arms.  Even though it may lead to restrictive management measures in the short term, active and effective fisheries management, and equally active and effective enforcement, are probably the most effective guarantors of fishermen’s futures.


Without it, those futures will likely be bleak.  And perhaps very short, as well.

THE SILENT THREAT TO THE STRIPED BASS STOCK

Fish need water to live, and striped bass are no exception.

And most of our striped bass are spawned in Chesapeake Bay, a region that is under a new assault from a legion of polluters aided and abetted by the Trump administration.

Geologically speaking, the Chesapeake Bay is the ria, or partially submerged valley, of the Susquehanna River, a 444-mile waterway that is the longest river on the East Coast of the United States.  The Susquehanna’s source lies near Cooperstown, New York, its mouth at Havre de Grace, Maryland.  Along the way, it drains 27,500 square miles of land, including about half of Pennsylvania and smaller portions of New York and Maryland, and provides about 50 percent of the fresh water that enters Chesapeake Bay.

The problem is that much of the water flowing into the Susquehanna, and into other tributaries of the Chesapeake Bay, is far from pristine.  Much of it comes from agricultural regions, and carries loads of excess fertilizers, pesticides and manure.  Some constitutes urban and suburban runoff, contaminated with spilled oil, gasoline and other hydrocarbons, along with various lawn foods, human and pet waste and the turbidity from construction projects.  And as the Susquehanna flows toward the Bay, its own waters are fouled from the same things, and from sewage plants built on its shores.

By the time the river flows into Chesapeake Bay, it brings not only the lifegiving fresh water that makes the Bay the most important spawning and nursery ground for striped bass on the entire coast, but also a host of pollutants that make it more difficult for those striped bass to survive until they are large enough to escape to the sea and join the coastwise migration.

The Chesapeake’s problems are nothing new.  The striped bass stock collapsed in the late 1970s.  In response, the Atlantic States Marine Fisheries Commission released its first striped bass management plan, which noted that

“Striped bass require suitable levels of [dissolved oxygen], salinity and pH for successful spawning, egg development, and hatching and larval and juvenile development.  In addition to these regularly measured parameters of the natural environment, the species requires an environment relatively free of chemical substances which either alter these critical parameters or interfere with the organism’s physiological processes.  Although concentrations on introduced chemicals may be relatively low in the water, these substances can be biomagnified to harmful levels in the striped bass from uptake through the gills or ingestion of contaminated prey.

“Spawning and early life stages occur in watersheds bordered by agricultural areas, urban development or industry.  Point and non-point source pollution by a variety of metals and organic and inorganic chemicals are the result of this development.”

Biologists ultimately determined that such pollution wasn’t the primary cause of the striped bass stock collapse.  However, the Chesapeake Bay Office of the National Oceanographic and Atmospheric Administration notes that

“Overfishing and poor environmental conditions led to the collapse of the fishery in the 1980s, [emphasis added]”

and states that

“A number of environmental challenges in the Chesapeake Bay threaten striped bass, including habitat loss, lack of prey, pollution, hypoxia (low oxygen conditions resulting from warm waters and high nutrient levels), and disease…

“Other threats to striped bass are loss of high-quality habitat areas, poor water quality from urban development and farming in the watershed, and hypoxia.  Striped bass populations respond to a complex interaction of these multiple environmental stresses…”

Hypoxia is mentioned twice in the above quote, and that’s not without reason.  Nutrient runoff, mostly nitrogen and phosphorus that flows downstream from agricultural sources, has literally sucked the air out of the Chesapeake Bay by nurturing huge phytoplankton blooms; each summer, as Bay waters warm and the plankton dies off, large “dead zones” appear, which contain too little oxygen to sustain the fish and other animals that would otherwise thrive in the area.

In 2010, in an effort to reduce and, in time, hopefully eliminate the problem, the U.S. Environmental Protection Agency promulgated regulations that, as the agency wrote at the time,

“established the Chesapeake Bay Total Maximum Daily Load (TMDL), a historic and comprehensive ‘pollution diet’ with rigorous accountability measures to initiate sweeping actions to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers.”

Naturally, the folks who firmly believe that they’re entitled to let their excess manure and such just wash into ditches, and eventually into the rivers and Bay, didn’t care for the EPA’s actions.  In January 2011, the American Farm bureau Federation sued the ePA, in an effort to protect farmers’ ability to dump crap into ditches and seasonal streams and, ultimately, on anyone and anything that was unfortunate enough to be living downstream.  Builders’ associations, golf courses and other conservation-averse business groups supported the Farm Bureau suit.

The polluters lost in the trial court and also on appeal; their litigation came to an end early in 2016, when the Supreme Court chose not to accept the matter.

However, recent events show that, in the end, the manure dumpers and their allies will probably prevail.  At least for now.

Despite the EPA’s original optimistic language about “a comprehensive ‘pollution diet’ with rigorous accountability measures,” recently released news revealed that neither Pennsylvania nor New York has met its pollution-abatement targets.  In late December, the Bay Journal reported that

“The U.S. Environmental Protection Agency confirmed on Thursday that plans produced by Pennsylvania and New York fall far short of meeting Chesapeake Bay cleanup goals.

“But the agency did not call for any new actions against the states, although their shortfalls—especially Pennsylvania’s huge gap—means the region would miss its 2025 deadline to put in place all actions needed to achieve the Bay’s clean water goals.”

In early January, the EPA seemed to minimize the importance of the states’ failures, when Dana Aunkst, the head of the agency’s Chesapeake Bay Program, dismissed the goals set in 2010 as merely

“an aspiration,”

a statement that seems very much at odds with the EPA’s earlier assurance that there would be “rigorous accountability measures” to assure that states met their pollution abatement goals. 

Lisa Feldt, speaking for the Chesapeake Bay Foundation, observed that the “aspiration” comment was

“a significant step back from the responsibilities of the EPA.  It builds on continuing rollbacks of federal regulations that effect the Chesapeake Bay.”

And it looks like even more, and even bigger, rollbacks are on the way.  President Trump has announced that his administration will repeal another regulation that protected the health and integrity of America’s rivers—and of the Chesapeake Bay—known as the “Waters of the United States rule.”  The New York Times quotes Trump calling the rule, which would prohibit landowners from allowing pollutants to flow off their properties and into public waterways,

“horrible”

and

“destructive.”

In a recent speech to the very same American Farm Bureau Federation that sued in an effort to block rules limiting the flow of pollutants into the Chesapeake Bay, Trump said

“I terminated one of the most ridiculous regulations of all:  the last administration’s disastrous Waters of the United States rule.

“It was a rule that basically took your property away from you.”

Because as we all know, if you can’t let pesticides, fertilizer and manure flow off your land, or clog rivers with sediment from land development projects, there’s no point to own land at all…

As the Times reports,

“The new water rule will remove federal protections from more than half the nation’s wetlands, and hundreds of thousands of small waterways.  That would for the first time in decades allow landowners and property developers to dump pollutants such as pesticides and fertilizers directly into many of those waterways, and to destroy or fill in wetlands for construction projects…

”That could open millions of acres of pristine wetlands to pollution or destruction, and allow chemicals and other pollutants to be discharged into headland waters that eventually drain into larger water bodies, experts in water management said.  Wetlands play key roles in filtering surface water and protecting against floods, while also protecting wildlife habitat.”

Wildlife habitat for, say, newly hatched striped bass, and for juvenile striped bass spending their first year in the Chesapeake Bay, along with the menhaden, river herring and bay anchovies on which bass feed, none of which can survive in hypoxic dead zones.  

As I’ve noted before, it all flows downstream, so when pollutants end up in tiny headwaters, in seasonal streams, or even in man-made drainage ditches that lead into flowing waters, it’s only a matter of time before those pollutants end up in major waterways, where they will impact natural resources that belong to everyone.

They will impact striped bass.

The small bit of good news is that the fight isn’t quite over.  Now it moves to the courts.  The New York Times reported that

“The E.P.A.’s Scientific Advisory Board, a panel of 41 scientists responsible for evaluating the scientific integrity of the agency’s regulations, concluded that the new Trump water rule ignores science by ‘failing to acknowledge watershed systems.’  They found ‘no scientific justification’ for excluding certain bodies of water from protection under the new regulations, concluding that pollutants from those smaller and seasonal bodies of water can still have a significant impact on the health of larger water systems.”

Larger water systems like Chesapeake Bay.  Where most our striped bass are spawned.

So we still can have some hope that the courts will find Trump’s new water pollution rule to be “arbitrary and capricious” and thus invalid.  And if the litigation runs long enough, which it should, we can hope that a new administration, that is willing to act as a steward, rather than as a vandal, of America’s natural resources, will enter the White House, reverse the Trump rule, and protect our fragile waterways.

We don't think of nitrogen fertilizers, or cattle manure, or urban runoff too much when we think about striped bass management.

We should.

Because we can adopt all the fishery management rules that we’d like, and even completely shut down the striped bass fishery for a few years, but if the bass lack clean water where they can spawn, feed and grow, it's all just a waste of time.

STRIPED BASS:: THE DEVIL WENT DOWN TO JERSEY

The Devil went down to Jersey, he was looking for some bass to steal.

He was in a bind because the stock declined,

and he was willing to make a deal. 

He came across some fishermen,

whining that their quota was cut.

So the devil cried "You're upset but"

“You might have never thought it, but I’m a fish hog, too.

I love killing all those striped bass; I’m the same as you.”

“Let’s kill all the spawning stock, for photos on the tackle shop wall,

Then we’lll knock off all of the little ones, and not save any at all!”

The folks down in New Jersey.

Said “It might be a sin, but we’ll sell our souls to kill more bass.

You can count us in.”     

                                   --with apologies to Charlie Daniels, and

                                          “The Devil Went Down to Georgia”

I'll say I'm sorry in advance to anyone who might think that, in writing the above, I might be taking the whole striped bass situation too lightly, but there’s a lot of truth in the old saying that, in some cases, you can either laugh or cry, and I prefer the former.

Then, too, I don’t know how many of you listened in on last week’s Atlantic Striped Bass Technical Committee meeting, and the supposedly “conservation equivalent” striped bass regulations that New Jersey has proposed, but if you did, and you heard what New Jersey was proposing, you’d understand why diabolical intervention might be as good an explanation for what they want as anything else.

Maybe it’s best to provide a little background.

As everyone knows by now, the striped bass stock is overfished.  A lot of that is due to overfishing, but below average recruitment between 2004 and 2010 also played a role.  The below-average recruitment also led to a stock structure which includes a relative abundance of older fish from the big 2003 year class, and even some spawned earlier than that, quite a few (but fewer than originally expected) young females from the large 2011 year class, and a lot of immature bass spawned in 2014 and 2015.  What we might refer to as middle-aged females, which usually comprise much of the spawning stock, are relatively scarce.

That being the case, in order to halt the decline in the striped bass stock, a two-pronged strategy might be in order.  One prong would protect the big females from the 1996, 2001 and 2003 year classes, which are capable of producing large numbers of viable eggs, in order to maximize current spawning potential; the second prong would protect the successful 2011, 2014 and 2015 year classes, which represent the future of the striped bass stock. 

Many anglers, including myself, believed that a 35-inch minimum size was the best way to do that, even though it protected the young fish at the expense of the biggest females.  The Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board felt that a 28 to 35-inch slot limit, which would reduce coastwide harvest by 18 percent, was a better approach.  The slot would protect both the big females and the still-immature 2014s and 2015s, although it would focus most of the fishing effort on the already fished-down 2011 year class, and make the 2014s and 2015s vulnerable to harvest as soon as they were recruited into the spawning stock.

But few management measures are perfect.  While the slot wasn’t my first choice, it seemed to be a measure that might work.

That is, it did before conservation equivalency came into the picture.

“Conservation equivalency” is an ASMFC policy that allows states to adopt management measures that are different from those adopted by the management board but, at least on paper, will have the same conservation impact.  As described in the ASMFC’s conservation equivalency policy, it actually makes quite a bit of sense, as it should be the result of reasoned deliberation, that determines whether it is appropriate in the circumstances (including whether it is appropriate for an overfished stock), must be subject to regular review, and should not be maintained indefinitely.

But in the real world, the ASMFC seldom if ever follows its own policies.

To set the stage for what happened in the case of striped bass, I’ll quote from the December 2019 newsletter of the Jersey Coast Anglers’ Association, in which Tom Fote, a long-time JCAA spokesman and New Jersey’s Governor’s Appointee on the Atlantic Striped Bass Management Board, spells things out pretty well.

“There was a major shift at the Striped Bass Board Meeting.  We realized that by using a slot fish without conservation equivalency would put undue hardship on some of the states.  New Hampshire would have an 88% reduction, New Jersey would have an over 40% reduction and Massachusetts would also have an over 40% reduction.  The Striped Bass Board did pass the slot limit that allowed the states to take an 18% reduction on the 2017 catch figures.  This will give us a broader set of options.  As I pointed out before, that slot limit was the worst management tool for protecting the 2011 and 2015 year classes.  It would do just the opposite of what we did when we rebuilt the stock by not directing any fishing on the 82 year class until 95% of the females had spawned at least once.  I am hoping New Jersey implements an option that will spread the catch over many year classes.”

As noted in the JCAA newsletter, the proposed slot limit would impact each state differently.  Some, like Connecticut, would take a very small reduction.  Others would take a much greater one.  But when all states’ reductions were averaged out, coastwide mortality reductions would equal 18 percent, which is the mortality cut needed to have a 50% probability of achieving the target fishing mortality rate.

That might not seem fair to states that had to take a greater cut, and probably seemed more than fair to states that had to take a lesser one.  Be that as it may, most states took the responsible path and accepted the mandated reduction.  

For example, even though New Hampshire was facing an 88 percent reduction, probably the largest proposed cut of all, Dennis Abbott, the state’s Legislative Proxy, made an ultimately unsuccessful motion, at the august 2019 Management Board meeting, to prohibit the use of conservation equivalency for so long as the striped bass stock was overfished or experiencing overfishing.

Massachusetts voted against that motion, but ultimately submitted no conservation equivalency proposals.  Its anglers will fish under the 28 to 35-inch slot, and apparently face a 40 percent reduction, this year.

Because that’s what responsible fishery managers do when an overfished stock needs help; they place the long-term health of the fish above short-term concerns about the “fairness” of harvest cuts.

But that’s not what happens in New Jersey, where a more diabolical form of fisheries management has long had its home.  There, the goal is always killing as many and as small a fish as possible, over the longest possible season, and the impact on the stock, or on other states, be damned.

So it’s hardly surprising that when the Management Board voted on final management measures in October 2019, Adam Nowalsky, New Jersey’s Legislative Proxy, in harsh contrast to his counterpart from New Hampshire at the previous meeting, focused on conservation equivalency above all else, at one point even trying to hold up discussions on management measures in order to give the equivalency decision priority.  In the end, he convinced the Management Board to allow states, as Fote reported, to adopt alternative measures that only reduced landings by 18 percent, the coastwide reduction, instead of by the reduction each state would have actually experienced if they adopted the slot.

As a result, instead of being compelled to adopt regulations that reduced its fishing mortality rate by 40 percent, as the slot would have, New Jersey only had to reduce mortality by 18 percent, less than half of that figure.  And when the state with the highest coastwide landings does that, it means that the fishery management plan, which depends on achieving a coastwide reduction, is also likely to fail.

Yes, that’s a bad thing.  But in the overall scheme of things, it’s the sort of bad thing that might be worthy of an Alastor or Mammon or Zepar, or some other member of the hateful demon horde, but not of Old Scratch himself.  To reach the truly diabolical, New Jersey would have to do more than that.

And, in the end, it did.

At last week’s Technical Committee meeting, a slide appeared on the screen that set out New Jersey’s proposed conservation equivalency measures.  There were six, presented as alternative proposals.  Both include New Jersey’s regular recreational landings, plus the so-called “bonus fish” that represent recreational landings taken out of the state’s unused commercial quota.

As you can see from the screenshot, if you click on the above link, the New Jersey proposals are grouped in two sets of three, one based on a regular season slot of 24 to 28 inches, the other on a 24 to 29-inch slot.  

Yes, you read that right.  New Jersey wants to reject the ASMFC’s 28 to 35-inch slot, which will at least let most of the females mature and hopefully spawn before they recruit into the fishery, with a 24 to 28- or 29-inch slot, which will directly target the 2014 and 2015 year classes, on which the future health of the fishery probably depends, and remove them from the water before they have a chance to spawn even once.

Fote’s JCAA newsletter piece emphasized the need to protect the young fish until they spawn at least once, so it will be interesting to see whether the JCAA actively opposes these proposed regulations, or whether Fote himself speaks against them, for targeting the young fish, when the Management Board meets in February to consider every state’s conservation equivalency proposals. 

Given what’s said in the newsletter piece, doing otherwise could hint of alliance with the Prince of Lies.

But killing off young fish before they can spawn is only half of New Jersey’s proposal.  They want to kill off the big females, too.

In order to do that, they have to change their “bonus fish” program.  In recent years, anglers obtaining free bonus tags were allowed to take immature, 24 to 28-inch fish during the fall run.  Supposedly, few fish were actually landed that way—only about 3% of the quota—but that figure assumes that all fish were tagged and reported, even if no enforcement agents were around to enforce the rule.  Whether you believe that or not depends on your views of human nature. 

With 24 to 28 inches the regular size limit, angling effort will be focused on the immature females,  and a lot of those little fish will be killed, whether or not they were killed under the bonus program before—if the Management Board approves New Jersey’s proposal.

As far as the bonus fish goes, two of New Jersey’s six proposals would keep the 24 to 28-inch slot, and would wipe out more of the future spawners, but would at least protect the oldest, largest, most fecund members of the spawning stock.  But the other four proposals would kill those, too, and establish a minimum size of either 35 or 43 inches for “bonus” striper.  At that size, it’s not hard to believe that anglers wouldn’t just kill 3 percent of the fish available to the program, but instead would land, or even exceed, the entire bonus quota, which is expected to be somewhere around 175,000 pounds.

What they actually tag and report, there’s no way to tell.

Thus, the proposed conservation equivalency measures presented to the Technical Committee would not only mean that, because of New Jersey, managers’ efforts to reduce fishing mortality to the target level are likely to fail, it also means that New Jersey anglers would be targeting the very fish—the big, fecund females and the immature bass spawned in 2014 and 2015—needed to assure the striper’s future.

It’s hard to understand how any angler who still owned his own soul could agree to that.

It’s difficult to understand how the ASMFC could agree to that, either.  We can still hope that the Management Board demurs.

But that’s the sort of thing that conservation equivalency can lead to, and it’s hard not to believe that it will move forward.  Instead of a higher minimum size, that lets the smaller fish recruit into the spawning stock and spawn a few times before becoming a part of the fishery, or instead of a slot limit, that protects whatever big females manage to live long enough to survive the slot, conservation equivalency is likely to give us a mishmash of coastal regulations that, in the end, gives no member of the spawning stock complete protection as it migrates along the coast .

The immature fish would be vulnerable in New Jersey as soon as they hit 24 inches, probably two years before they would spawn for the first time.  They would escape the New Jersey slot at 28 (or 29) inches, but at that point they would be vulnerable in Massachusetts, Virginia and North Carolina, and perhaps other states that adopt the ASMFC’s preferred slot.  At 30 inches, if New York, Connecticut and Rhode Island agree on a joint measure, they will become vulnerable there, and then just as they finally reach what should have been safety—at 35 inches in some states, and maybe 40 inches in others—they become “bonus fish” to be killed in New Jersey again.

It’s hard to believe in a system that allows such a thing that to happen.

For it’s a system that has lost its soul.

THE FISHERIES MANAGEMENT PROBLEM THAT NO LAW CAN FIX

A few days ago, I read an article on The Fisherman’s website which reported that the Connecticut Department of Energy and Environmental Protection is supporting legislation that would allow striped bass poachers to face less serious charges than they do today.

While that sounds like a bad idea on its face, it may ultimately be a good thing, due to a pernicious problem that plagues fisheries enforcement not only in Connecticut, but here in New York and elsewhere along the coast.

Currently, any violation of Connecticut’s striped bass laws constitutes a misdemeanor.  That sets striped bass poaching apart from poaching any other marine species, where penalties begin with infractions that can be addressed with a ticket similar to a traffic ticket.  Penalties for infractions are less than those that can be levied for misdemeanor violations, and the judicial process initiated when a ticket is issued is much simpler than the process initiated by a misdemeanor summons.

I practiced law in Connecticut many years ago..  While some of the details have probably changed since then, I suspect that the basics of criminal law there remain the same.

When a ticket is issued for an infraction, the fine for such infraction is noted on the ticket, and the accused can dispose of the matter by merely mailing in a check for such fine and any associated fees before a specified answer date.  Or, if the accused believes that the ticket was wrongfully issued, such accused may mail in a “not guilty” plea, and then have the matter decided in a criminal court.

However, while infractions are legal offenses, and guilt is decided in a criminal court, infractions are not considered crimes under Connecticut law.  As a result, the accused is not entitled to a jury trial, and any conviction need not be mentioned if the violator is ever required to disclose whether he or she has ever been accused or convicted of committing a crime.

Misdemeanors are different.  They are considered crimes, and there is no mail-in option.  

Instead, if a person is issued a misdemeanor summons, that person must appear (usually with an attorney) at the criminal court.  The accused, or their attorney, will usually speak with an assistant state’s attorney to try to reach a quick resolution prior to appearing before a judge.  Often, those talks result in some sort of plea bargain.  If they do not, the matter is set for trial.  The accused has the right to a trial by jury; if convicted, the fine (and in theory, if not in reality, prison sentence) is set by a judge.

Based just on those differences, it’s easy to believe that by deeming striped bass poaching a misdemeanor, Connecticut is giving the fish real and meaningful protection.  And there’s no reason to believe that, when it initially passed the relevant law, the Connecticut legislature didn't think that it was doing just that.

Unfortunately, good intentions don’t always translate into good results in the real world.

In the real world, state’s attorneys—the folks colloquially called “prosecutors” or “DAs”—and judges often don’t care very much about striped bass or any other fish.  They care about caseloads and clogged court dockets quite a bit more.

As a result, Connecticut’s strong striped bass laws actually ended up giving the bass less protection, not more, as state’s attorneys, which have very broad discretion over the matters they will pursue, usually opted not to prosecute striped bass-related misdemeanors.  Thus, poachers know that they were very unlikely to pay any meaningful penalty even if they get caught.

Connecticut fisheries regulators  hope that, by downgrading at least some striped bass offences to infractions (to the best of my knowledge, the bill has not been introduced yet, so it’s possible that more serious striped bass offenses could remain misdemeanors), more offenders might actually have to pay fines for poaching striped bass.  If that is the case, reducing the level of the offense to an infraction might well create greater deterrent effect than does its current status as a misdemeanor. 

Yet, while that may improve the situation somewhat, it doesn’t solve the underlying problem:  The tendency of judges and prosecuting attorneys to downplay the seriousness of fisheries offenses, and allowing poachers to escape with a mere slap on the wrist—if they face any penalty at all.  Currently, poachers are emboldened, and those who illegally commercialize fisheries resources can feel confident that they either will not be fined or, if by chance they are, such fines will be little more than another necessary and affordable cost of doing illicit business.

It’s not just a Connecticut problem.

Here in New York, fisheries offenses are often heard in local town and village “justice courts” that have jurisdiction over violations (like “infractions” in Connecticut, New York "violations" do not constitute crimes) and misdemeanors.  The justices who provide over criminal trials in such courts elected by local residents, are often not lawyers, and do not even need to have a legal degree.  

In that sort of environment, poachers are typically members, often respected members, of the local community, and enforcement agents can work long and hard to make a good case, only to see it dismissed on questionable grounds by a justice sympathetic to the poacher. 

Even in jurisdictions that have more stringent requirements for trial judges, fisheries cases don’t get the attention, and fisheries violators don’t receive the penalties, that they deserve.  Urban judges become jaded over time, presiding over a seemingly endless parade of cases involving robbery, rape, burglary, drugs and assault; they don’t see fisheries offenses rising to the same level of evil, and are quick to dismiss them or, at most, impose trivial penalties.

People often say that laws against poaching need to be tougher, but tough laws do no good if prosecuting attorneys don’t prosecute violations, and judges refuse to impose adequate penalties when poachers are convicted.

That’s a serious problem, and one that no law can really fix.

One answer, which might provide some relief, is to place more reliance on civil remedies, rather than criminal penalties.  However, measures such as license suspensions will have little impact on individual anglers, who can just keep on fishing without a license if they know that courts won’t impose meaningful penalties if they get caught doing so.  

Suspensions of commercial licenses, or the licenses of for-hire vessels caught clearly violating the law (e.g., illegally fishing for striped bass in federal waters, or taking customers out on “sushi cruises,” where undersized summer flounder are caught and eaten on board) would be more effective, but would only address a lesser part of the poaching problem.

Another possiblity is to supplement poaching fines with restitution payments intended to address the damage that poachers do to public resources.  While such restitution payments are most often seen for hunting violations, they can apply to fish poachers, too.  Texas advises that

“In addition to the criminal penalty for hunting and fishing violations, the department will seek the civil recover value for the loss or damage to wildlife resources…Hunting or fishing after failing or refusing to pay civil restitution is a Class A misdemeanor punishable by a $500-$4,000 fine, punishment in jail (not to exceed one year, or both.”

That’s a start.  It’s still not perfect, but it’s a start.

And we have to start doing something.  

Effectively addressing the poaching issue is going to take a change in attitude, not among anglers, who widely condemn such actions, nor among legislators, who try to give enforcement personnel the laws that they need to protect public marine resources.

The change must come among prosecuting attorneys, who must be willing to take poachers to trial, if necessary, to see that justice is done.  And it has to come among trial judges, who must treat fisheries crimes as harshly as they do other offenses.

That will be a hard thing to achieve.  But uness we achieve it, the best laws, the best enforcement people, and the best intentions won't get the job done.