COD: IT HAS COME DOWN TO THIS

If you didn’t start fishing for cod fifty years ago, it’s probably hard to understand what codfishing was like back then.

It was far from perfect; the bloom had long before fallen from the rose, which probably isn’t surprising for a fishery that had already been exploited by commercial fleets for nearly five hundred years, and was pounded by fleets of foreign factory trawlers for the past twenty.

Even so, in the 1960s and even in the opening years of the 1970s, codfishing was still good enough to suport fleets of party and charter boats in ports extending from New Jersey to Maine, boats that regularly targeted cod either seasonally or throughout the year.  

While the New York Metro angling press might have referred to cod as the “winter king,” and boats filled with anglers might have sailed out of New York and New Jersey ports during the coldest months of the year, anglers who knew how to find and fish offshore wrecks, sailing out of the same ports, found plenty of quality cod during the height of the summer.

I hooked my first cod in August 1960, a few days after my sixth birthday, while fishing on a tourist-focused half-day boat out of Provincetown, Mass.  For the next few years, our August vacations followed the same pattern, always ending with a cod trip out of somewhere, eventually moving from Provincetown's half-day boats to full-day operations out of other New England ports.  

We caught fish, even though we fished largely nearshore waters on boats catering to largely inexperienced anglers.

I finally graduated to the big leagues at the age of 13, joining my father and two of his friends on late May trip out of Galilee, Rhode Island.  There, we boarded the, Sea Squirrel, a 65-foot party boat that began life, I was told, as a World War II sub chaser, to make the rolling, 2 ½-hour trip out to Cox’s Ledge.  

Cox’s, in those days, was the promised land for codfishermen in southern New England.  Its cold water, rock/gravel bottom and abundant baitfish held cod throughout the year, and my first visit to the place was no exception.  Although the fish ran small that day—my father and another fishermen split the pool with a pair of 35 pound cod—our baits rarely sat on the bottom for more than a couple of minutes before attracting attention.  By the end of the day, my left hand was blistered from the hard wood grip of my old-fashioned boat rod, while my right index finger was raw and bleeding from constantly cranking the reel, but I was a happy and dedicated codfisherman from that day forth.

Or at least I was, until the fish disappeared.

The big foreign factory ships continued to hammer all of the New England groundfish, working constantly without any regard for the size or number of fish being killed.  In 1976, Congress finally passed the Fishery Conservation and Management Act, which pushed the foreign boats 200 miles offshore, but also gave domestic fishermen strong economic incentives to upgrade and expand their fleet and take up where the foreign boats left off.

Fishing remained half-decent throughout the ‘70s.  It was good enough in the fall of ’75 for me to lead three friends from college down to Galilee on a windy October Friday night, without any thought to what fishing might be like, and putting three cod on ice, including a 26 and a 31, despite fairly awful conditions (we’ll leave the details about cleaning those fish inside a college dorm, and the panicked reaction of an already drunken janitor when he saw a bloody cod eye staring out through the clear garbage bag when he emptied the men’s room trash on Monday morning, for another time).

But by the end of the decade, you could feel the continuing decline.

Some good fish were still being caught.  You could still ride a party boat out to Cox’s Ledge during the middle of summer, and expect the pool fish to break 40 pounds, and maybe top 50 as well.  But the absolute number of fish, and to some extent their size, was headed downhill. 

It seems that pushing the foreign boats offshore didn’t solve the problem, for as Discover magazine explained,

“Fishermen had lobbied Congress hard to have the foreign trawlers kicked out, and they expected a bonanza.  Between 1977 and 1983, the number of boats fishing out of New England increased from 825 to 1,423.  The new boats were bigger and equipped with the latest electronic fish-finding equipment.  The fish never had a chance.  The cod catch on Georges Bank alone peaked in 1982 at more than 53,000 tons.  Then it started to decline.  As the stock declined, the mortality inflicted by fishing rose, just as it did in Newfoundland [before cod stocks collapsed there].  The difference is that in New England, fisheries biologists knew it was happening all along, and said so.”

But those biologists were all ignored.

By the early 1980s, my wife and I moved to the South Shore of Long Island, New York, and my days of driving up to the Rhode Island party boats was over.  There just weren’t enough fish to justify the trip.  I jumped on a couple of boats sailing out of Captree State Park during the winter, but Long Island’s winter fishery was already on the skids.  The boats still caught a few good fish, usually early in the season (the Friday after Thanksgiving often produced), but they talked a far better game than the fishing deserved. 

I still recall taking one trip that produced four small cod for the entire boat—two of them caught on hooks that the boat’s mates attached to the weights on the buoys they used to help them anchor over the wrecks—and learning that we had done better than any other boat in the fleet.  And how one of the other boats reported to a local paper, which duly printed the report, that it had caught close to twenty fish up to 35 pounds on that same day, just to keep their business going just a little bit longer.  

Some anglers doubtless believed that report, because such catches had often been made just a few years before, but the days of good local codfishing were over.

But my appetite for cod continued, so I booked with Montauk’s Viking Fleet, which specialized in making long-range trips to distant grounds where cod were still reportedly big and abundant.  Again, there were good days, but the hype overran reality.  I remember thinking, at the close of a three-day “Whale Cod” trip out to Georges Bank, that I had to run 13 hours, on a fast, modern boat, and spent parts of three days fishing, to catch fewer, and no larger, fish than I had caught on that first day trip to Cox’s Ledge, aboard a slow, converted sub chaser, twenty years before.

And things ran downhill from there.

As Discover magazine reported,

“the National Marine Fisheries Service is charged with assessing the status of fish stocks and with overseeing their management.  But recommendations as to what restrictions, if any, to place on fishing are left to regional councils composed of mostly fishing industry representatives—fish processors, fishermen’s association leaders, and fishermen themselves.

“During the 1980s the New England Council proved itself unwilling to control fishing.  Indeed, one of its early actions, in 1982, was to eliminate catch quotas.  Its goal, it said, was a simpler system that would allow the fishery to operate in response to its own internal forces.  As the decade progressed, the fishery did just that—and as NMFS scientists warned of declining stocks of cod, haddock, and yellowtail flounder, the council dithered…”

Cod and other New England groundfish continued to decline as a result.  

I reluctantly stopped fishing for them, as numbers fell lower, although I still took the occasional winter trip out of Captree for old times’ sake.  Things finally got bad enough that Congress passed the Sustainable Fisheries Act of 1996, which amended the 1976 Act, now called the Magnuson-Stevens Fishery Conservation and Management Act after its primary sponsors, to require that local councils end overfishing and rebuild overfished stocks in no more than ten years, if it was biologically possible to do so. 

Although many fishermen up in New England originally supported the 1996 law, as they knew that fish stocks were collapsing, they didn't like the idea of the new law capping their landings.  Thus, the New England Fishery Management Council became very adept at drafting management measures that would, on paper, satisfy the letter of the law, while evading its purpose.  The New England Council still avoided hard quotas at any cost, and tried to satisfy their legal obligations by limiting a boat’s days at sea, imposing trip limits, etc.

It didn’t work, and overfishing continued.  Cod continued to decline.

So the Magnuson-Stevens Fishery Conservation and ManagementReauthorization Act of 2006 imposed new requirements, mandating that hardquotas, deemed “annual catch limits,” be imposed for just about every managedstock.  It also required that fishermenwho exceed such limits be held accountable.  But that hasn’t helped the cod, either.

Maybe it came too late, or maybe fishermen are just finding ways to evade the law.  There is someevidence suggesting that the latter is true, and that fishermen are dumping manyof the cod that they catch back into the ocean, dead, in order to avoid exceedingtheir quota and triggering accountability measures, which would include not only paybacks, but shutting down fisheries for more abundant groundfish in order to avoid killing more cod as unintended bycatch.

Still, many fishermen continue to focus on cod concentrations when they can find them.  About a decade ago, an unexpected increase in cod abundance in the Block Island, Rhode Island/Cox’s Ledge area caught their attention.  The fish were small by the standards of forty or fifty years ago—far more pool fish were under 20 than over 30—but the commercial and for-hire fleets swarmed the fish while they could find them, enjoying the chance to make a little money in what had come to be their barren winter season.

Faced with such fishing pressure, the abundance soon declined to more typical modern levels. 

Concentrating such high levels of fishing pressure on those cod may have doomed the last best chance of seeing cod return, in numbers, to the waters east of Long Island.  A 2014 paper, “Stock identification of Atlantic cod (Gadus morhua) in US waters; an interdisciplinary approach,” published in the ICES Journal of Marine Science, notes that cod off southern New England, on Cox’s Ledge and in the Mid-Atlantic spawn between December and April, meaning that the fishery was probably targeting spawning aggregations.

The paper also noted that

“Several studies indicate that cod exhibit spawning site fidelity and return to the same places to spawn each season…

“Once a spawning site has lost its resident population, it may remain barren even when cod are present on neighboring grounds…”

So fishermen may very well have shot themselves in the foot—again—on that one.

The bottom line is that cod stocks remain deeply distressed, with no sign of improvement on the horizon.

Cod are in such serious trouble that one marine conservation group with a long history of work on New England issues, the Conservation Law Foundation, has now petitioned the National Marine Fisheries Service, requesting that the directed cod fishery be closed.  In a statement that is sadly all too accurate, it declared,

“After decades of reckless decision-making, Atlantic cod populations are now in crisis.  To give this iconic species a chance of survival and recovery, the federal government must take the strongest possible action today and temporarily prohibit further cod fishing.”

The petition also requests that NMFS require observers on all groundfish trips, to assure that there is a record of any cod that are incidentally caught and subsequently dumped, that important spawning and nursery areas are closed to fishing, and that action is taken to reduce cod bycatch in other fisheries.

New England fishermen will undoubtedly be hostile to the petition; many believe that there is still blood to be squeezed from this particularly dry and crumbling stone.  But it has come down to this:  NMFS must adopt whatever measures may be necessary and appropriate to conserve and rebuild northeastern cod stocks, or it must be willing to take full responsibility if, because of inadequate management action, fish stocks that once fed much of western Europe and eastern North America for centuries collapse, and never recover again.

ASMFC STRIPED BASS MEETING DEMONSTRATES NEED FOR REFORMS

The first question set the tone of the meeting.

In October, 2019, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board (Management Board) adopted Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan (Addendum VI), which was intended to end overfishing and reduce fishing mortality by 18 percent, and so return it to a sustainable level. In order to achieve that goal, Addendum VI set a one fish per day bag limit for recreational fishermen, who would be permitted to keep only those bass that fell within a 28 to 35-inch “slot limit” if caught on the coast, or were no less than 18 inches long if caught in Chesapeake Bay.

Addendum VI also permitted states to propose alternative regulations to those adopted in Addendum VI, provided that those regulations achieved an 18 percent reduction in that state’s striped bass fishing mortality, so on February 4, 2020, the Management Board met again to review all such state proposals.

That’s when Capt. John McMurray, a Management Board member from New York, asked the Atlantic Striped Bass Technical Committee (Technical Committee) what the coastwide fishing mortality would be if all of the state proposals were approved.

And that’s when the Technical Committee admitted that it could not give him an answer.

It wasn’t the Technical Committee’s fault. The fourteen states that participate in the striped bass fishery had presented forty-nine different sets of alternative proposals, which could be mixed and matched in so many different ways that it just wasn’t reasonable for the Technical Committee to analyze every possible combination.

So, as the Management Board began its deliberations, it found itself in a difficult situation. Addendum VI, which it had passed less than four months before, called for an 18 percent reduction in striped bass fishing mortality. Now, it was asked to approve proposed state regulations, but had no way to know whether those regulations, if adopted, would achieve that needed reduction.

A few more comments and questions made it clear that if the state proposals failed to achieve the fishing mortality reduction contemplated in Addendum VI, there would be no accountability for such failure on either a state or coastwide level.

One Management Board member, New Jersey’s Adam Nowalsky, even admitted that “We’ve got a level of confidence here that when we put all the [state] proposals [together], the number will be less than 18 percent,” but he thought that falling short was OK, because the Management Board “shouldn’t quibble” about whether the reduction didn’t quite meet Addendum VI’s target. He guessed that any shortfall would be minor.

And that sort of attitude, shared by too many Management Board members, is why the Atlantic States Marine Fisheries Commission’s (ASMFC) management process is in desperate need of reform.

Fisheries management is a very demanding and difficult discipline. As a Massachusetts fisheries official once quipped, “Managing a fishery is like managing a forest, except it’s always night and the trees move.” So asking the Management Board to make decisions on state regulatory proposals, when they don’t even know what the effects of such proposals would be, is very unwise. That is particularly true when, if a state’s proposal failed to adequately reduce fishing mortality once put in place, there was no way to impose remedial measures that might repair the harm done to the striped bass stock.

Yet the ASMFC frequently allows states to take such questionable actions, and rarely if ever holds them accountable for the result.

After the Management Board passed Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan (Addendum IV) in 2014, recreational fishermen in Chesapeake Bay were required to reduce fishing mortality by 20.5 percent, compared to what it was in 2012. Yet after an ASMFC study revealed that those anglers not only failed to achieve such reduction, but instead increased fishing mortality by more than 50 percent, the Management Board allowed them to maintain such increased levels of fishing mortality through the 2019 season.

They were not held accountable in any way.

That’s not surprising, because the ASMFC has historically reacted to recreational accountability measures in about the same way that vampires react to holy water. At the February Management Board meeting, Pat Kelliher, a Maine fisheries manager, made a motion directed at states that adopted alternative management measures. It would have required such states to adopt more restrictive regulations if, and only if, their preferred alternative measures failed to achieve the needed reduction in fishing mortality.

While that might seem reasonable to anyone concerned with the health of the striped bass stock, the motion immediately ran into strong opposition.

Not surprisingly, the most strident criticism came from Maryland and New Jersey, states which had adopted controversial and, at least in the case of Maryland, unsuccessful alternative measures in response to Addendum IV, and were now planning to adopt management measures that could undermine the goals of Addendum VI. Michael Luisi, a Maryland fishery manager, managed to convince the Management Board to postpone any action on the motion until the May Management Board meeting.

As is often the case, the objections to holding states accountable for not meeting Addendum VI’s target reduction were based on both the timing and the perceived accuracy the recreational catch data provided by the Marine Recreational Information Program (MRIP). From one perspective, the objections are justified. The National Marine Fisheries Service (NMFS) advises that “The more samples you draw, the more precise your estimate,” so the precision of landings estimates provided for a single state will never be as good as the precision of coastwide estimates.

Still, the relative imprecision of state-level catch estimates doesn’t deter states from using such MRIP data when they’re trying to convince the Technical Committee and Management Board to approve alternative regulations that would allow them to enjoy a more liberal bag limit, lower minimum size or longer season. The percent standard error, something that NMFS says “is similar to the margin of error used in polling,” for estimates of striped bass caught in Maryland during March and April is 36.5. That’s far from precise. Yet that data was used to justify a substantial component of Maryland’s 2020 striped bass regulations.

Using the same data to hold states accountable when their alternative regulations fail to adequately protect the striped bass stock, on the other hand, remains clearly anathema to quite a few Management Board members.

That seems wrong, but not as wrong as the attitudes of some Management Board members, who seem to have little intention to rebuild the striped bass stock. The last benchmark stock assessment found the striped bass stock to be overfished, and because that was the case, Amendment 6 to the Interstate Management Plan for Atlantic Striped Bass (Amendment 6) requires the Management Board to “adjust the striped bass management program to rebuild the biomass to the target level within [no more than 10 years].”

Despite that clear language, the Management Board has taken no action to begin the rebuilding process. Maryland’s Michael Luisi, at the February meeting, went so far as to say that he would consider the Management Board’s efforts successful if, by the time the next stock assessment comes out, the fishing mortality rate has been reduced, and the decline in the spawning stock biomass has slowed.

He didn’t say that the stock should be rebuilding, as Amendment 6 requires. He didn’t even say that its decline should have stopped. To him, striped bass management would be successful if it merely slowed the decline of the already overfished striped bass stock by the time the next assessment was done.

And the next benchmark assessment won’t be released until early in 2024.

Unfortunately, he’s not the only Management Board member who feels that way. Such attitudes explain why the ASMFC, throughout all of its 77-year history, has never managed to rebuild even one overfished stock, and then maintain that stock at sustainable levels. It came close with striped bass, which the Management Board successfully brought back to health after the stock collapsed in the late 1970s and early 1980s, but the Management Board’s failure to follow the dictates of its own management plan allowed the stock to become overfished once again.

The Management Board’s failure to adopt a clear, consistent and, most importantly, certain approach to achieving the needed reduction in striped bass fishing mortality at its February meeting illustrates why the ASMFC management process is in need of real reform. While some Management Board members are trying to bring that reform about from the inside, they have been unable to overcome the resistance of others who feel well-served by the status quo.

Thus, we should look to Congress, who can compel the ASMFC to adopt management plans likely to end overfishing, that set clear catch limits for recreational and commercial fisheries, hold fishermen accountable when such limits are exceeded and, when necessary, rebuild overfished stocks within a reasonable and clearly stated time.

Unless such reforms are put in place, expect ASMFC-managed stocks to languish, and some Management Board members to continue to envision success as an overfished stock that is still in decline, but not declining as quickly as it had before.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/

AT THE ASMFC: THE COMPELLING FORCE OF LAW

Some fisheries problems just don’t go away.  

I’ve been working on menhaden issues since the mid/late 1990s, and I know some folks who’ve been working on them for longer than that.  While we made some slow, grudging progress, wins were few and far between.  The menhaden reduction industry, which for practical purposes meant the Omega Protein Corporation, which catches the lion’s share of menhaden on the Atlantic coast, just had too much political influence down in Virginia, and managed to bog down efforts to modernize the menhaden management system.

Suddenly, everything changed.  As a recent headline in the Virginia Mercury asked,

“Menhaden regulations have plagued lawmakers for decades.  Why were they able to find a fix this year?”

The answer to that question was pretty simple:  Because they didn’t have a choice.

The Atlantic States Marine Fisheries Commission adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden in 2017.  Amendment 3 contained a provision that would cap the amount of menhaden that Omega could remove from the Chesapeake Bay at 51,000 metric tons, a substantial reduction from the 87,216 metric ton cap that had been in place before, in order to avoid the possibility of localized depletion, and the adverse impacts that such depletion would have on the Bay’s predators.

Maryland pushed the reduction fleet out of its section of Chesapeake Bay a few years ago, so Omega’s entire Chesapeake Bay harvest would have to be caught in Virginia waters.  It was up to the Virginia legislature to pass a law that would limit such harvest to 51,000 metric tons.

Omega, understandably, didn’t want that to happen, and the Virginia legislature refused to adopt the lower Bay cap.  It was just one more act in a seemingly endless drama.  As the Virginia Mercury reported,

“Every year, the drama has followed the same lines.  Some lawmakers and environmentalists concerned about the health of the valuable fishery, the only one managed by the legislature rather than regulators, push to transfer its management to the Virginia Marine Resources Commission.  The industry and its unionized fishermen, concerned that regulators will cramp their business, push back.”

In the past, the industry had always won.

“It’s been perhaps the state’s dullest political tug-of-war.  But then, this winter, it ended when Omega Protein, the Reedville-based Canadian company that is the largest single player in the U.S. menhaden industry, told a Senate panel that it supported legislation to hand over fishery management to the VMRC.”

Why did things change?  The answer to that lies in federal legislation called the Atlantic Coastal Fisheries Cooperative Management Act, which granted the ASMFC management authority over many coastal fisheries, including menhaden.  

The Act also gives the ASMFC power to enforce its authority over states which refuse to conform to the provisions of its management plans.

The ASMFC does that by making a formal finding that a state is out of compliance with one or more provisions of a management plan.  Once such finding is made, the ASMFC must notify the United States Secretary of Commerce who, if he agrees with the finding and makes an independent determination that the provision or provisions in question is/are necessary for the conservation of the relevant fishery, must impose a complete moratorium on such fishery in the noncompliant state.  The moratorium remains in effect until the state finally complies with the management plan.

That process played itself out with respect to Virginia’s menhaden fishery.  Last December, Commerce Secretary Wilbur Ross announced that he was imposing a moratorium on all menhaden harvest in Virginia’s waters, effective June 17 of this year, unless Virginia comes into compliance with the ASMFC’s menhaden management plan before that date.

Faced with that sanction, Omega Protein, along with its supporters in the Virginia legislature, backed down.

It had no choice, for as the Virginia Mercury noted,

“for most stakeholders, the decisive factor seems to have been the threat of federal intervention.  After all, it’s one thing for legislators to give up their power to a regulatory body.  It’s quite another to give it up to Washington.”

Thus, although legislation that transfers menhaden management authority to the Virginia Marine Resources Commission has not yet been signed into law, there is very little doubt that will occur in a very short while.

When it does, the ASMFC will have succeeded in enforcing the terms of its management plan, but only because Virginia faced real legal consequences if it didn’t comply.

The irony of the situation is that, while the ASMFC can use such legal consequences to compel the states to comply with its management plans, if the ASMFC itself fails to comply with the explicit terms of one of its own management plans, it faces no consequences at all.

While the thought of the ASMFC ignoring the terms of its own management plan might seem unlikely to some, we have seen just that scenario play out not once, but twice, with respect to striped bass.

Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass clearly requires that

“If the Management Board determines that the female spawning stock biomass falls below the target for two consecutive years and the fishing mortality rate exceeds the target in either of those years, the Management Board must adjust the striped bass management program to rebuild the biomass to a level that is at or above the target within [no more than ten years].  [emphasis added]”

The benchmark stock assessment released in December 2013 revealed that both of the requirements specified in that provision—female spawning stock biomass below target for two consecutive years, and fishing mortality above target in at least one of those years—had occurred.  In response, despite language stating that the Management Board “must” act to rebuild the stock, the ASMFC did absolutely nothing to meet the 10-year rebuilding deadline.

Instead, at the August 2014 Management Board meeting, then Fisheries Management Plan Coordinator Michael Waine engaged in a sort of doubletalk that, in the end, dismissed the need to embark on the seemingly mandatory rebuilding plan, saying

“Management Trigger 2 [Author’s note:  Waine misspoke; it was actually Trigger 4] in Amendment 6 says that you need to rebuild the [spawning stock biomass] back to its target over a specified timeframe that should not exceed ten years.  I think there is sort of a combination of things happening.  The board is acting to reduce [fishing mortality].  Through that action we see the projections showing that [spawning stock biomass] will start increasing towards its target, but we’re uncomfortable with projecting out far enough to tell you when it will reach its target because the further on the projections we go the more uncertainty that is involved.  Therefore, I think the trend is to get back towards the target, but we can’t tell you exactly how quickly that will happen.”

If you parse that language carefully, you’ll note that Waine never addressed Amendment 6's rebuilding requirement in any detail.  Instead, he diverted the conversation toward the fishing mortality reduction that the Management Board did pursue, and the fact that it was difficult to tell when, pursuant to that reduction, the stock would rebuild, because it would happen so far in the future.

But Waine never said a word about what measures could be adopted to rebuild the stock within 10 years, and never explicitly said that there was too much inherent uncertainty to put a rebuilding plan together (of course, if he had blamed uncertainty for the lack of a rebuilding plan, he would then have had to explain why federal fisheries managers can deal with 10-year rebuilding deadlines on a routine basis, or why, if uncertainty was a problem, it wouldn’t be possible to put a rebuilding plan in place, then make mid-course corrections, as needed, as the level of uncertainty declined over time).

But the bottom line was that the rebuilding issue wasn’t raised again.

Then, in 2019, a new benchmark stock assessment was released to the Management Board.  It found that the striped bass stock was overfished, which tripped another Amendment 6 management trigger that reads

“If the Management Board determines that the biomass has fallen below the threshold in any given year, the board must adjust the striped bass management program to rebuild the biomass to the target level within [no more than ten years].”

Once again, the Management Board ignored its clear obligation to rebuild the stock, even though the current Fishery Management Plan Coordinator, Max Appelman, unlike his predecessor, honorably discharged his duties, warning the Management Board that

“the clock is sort of ticking, and the ten year clock began in May when the information [that the stock was overfished] was presented to the board,”

at the August 2019 Management Board meeting, and reminded them that

“The ten year timeframe, the clock is ticking on that yes,”

once again on the same day.

Unfortunately, the Fishery Management Plan Coordinator can’t force the Management Board to take any action, even if it is required by the management plan, so no action has yet been taken on striped bass rebuilding.

We’re left in a situation where the ASMFC can compel the states to comply with the provisions of its management plans, but the public has no way to compel the ASMFC to honor the language of the same plans.

And if the public can’t even compel the ASMFC to do what it had already said it would do to protect the health of fish stocks, it certainly lacks the power to force the ASMFC to do what the public expects of it: rebuild overfished stocks and then maintain those stocks at healthy levels, something that, in the 77-year history of the organization, it has not ever done—even once.

So it’s time to get Congress involved.  We need legislation that will legally compel the ASMFC to properly protect and conserve the marine resources that it has been entrusted to manage, and will allow the public to seek judicial intervention, if it fails to faithfully do that job.

STRIPED BASS: WE GOT MAD. NOW LET'S GET IT RIGHT

It’s probably not news to anyone who pays attention to what’s going on up and down the coast, but a lot of striped bass fishermen weren’t happy with what went on at the February meeting of the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board.

The meeting was supposed to address “conservation equivalency,” and review the forty-nine different proposals that various states had made, as such states sought to adopt regulations that differed from the one fish bag, 28 to 35-inch coastal slot limit and the 18-inch minimum size in the Chesapeake Bay that were included in the recently-approved Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan.

Things started heading downhill early on.  

As soon as the technical reports had been presented, and the floor opened for questions, one Management Board member asked a Technical Committee representative what the coastwide reduction in fishing mortality would be if all of the state proposals were approved.  The response was that no one knew; there were so many proposals, which could be combined in so many different ways, that it just wasn’t practical to calculate all of the possible outcomes.

Thus, the Management Board was being asked to approve management measures without knowing what the outcome would be.

That didn’t go over with a number of Management Board members.  

To their credit, the representatives from New York and from the New England states did try hard to bring some order out of the chaos, and to do the right thing for the bass.  A few Management Board members from northern New England worked particularly hard for a meaningful review of the state proposals and, perhaps more important, to hold states accountable if their supposedly “conservation equivalent” regulations fell short of the mark.

Yet, in the end, they didn’t succeed.  While there is a very good chance that we’ll have consistent coastal regulations in all of the states between Maine and New York (Rhode Island being the only possible outlier), and in some states south of that as well, conservation equivalency proposals adopted for Maryland and New Jersey make it likely that Addendum VI will fall short of its mark.

And judging from the comments we’ve been hearing, that has made striped bass anglers, including many in New Jersey and Maryland, pretty mad.

The comments started coming in right after the Management Board meeting.  One observer made the wry observations that

“49 different choices on conservation equivalency were submitted, many of which the technical committee straight out said could not be modelled…

“Several Commissioners went on record calling out the [conservation equivalency] bullshit, one saying, ‘We agreed to a size limit at the last meeting, while right then and there a number of you sat in the back of the room trying to figure out how to then work up an alternative conservation equivalency in your state.’

“’Accountability’ was voted down.  Yes, read it twice if you have to.  The idea of paying for what you eat (and penalties for overages) was handily defeated.  Note to self—never invite these types out to dinner and expect them to split the bill fairly…

“A coalition of 28-35 [inch slot limit] was building coast-wide, but Rhode Island and then NJ couldn’t resist.  The visual is the grade school teacher telling each child they should take one cookie, and one cookie only.  But then two kids decide to reach in for more, the children start to fight, and the cookie jar falls onto the floor into a pile of crumbs.

“And that pretty much sums up the process of ASMFC this week.”

It was a pretty good, and remarkably polite, description of what went on.

Many other folks expressed anger and/or disappointment.  On one website devoted to striped bass fishing, people listening in on the Management Board meeting kept up a running commentary, making statements such as

“unbelievable [sic].  Are we trying to conserve the fish here or the wallets of those that profit off their harvest.

“Solid job to the people at the ASMFC.  They really need to go, every single one of them,”

and

“And now we’ve avoided accountability.  I’ve lost all respect for the ‘August Body.’  They should all be ashamed of themselves.  Time for NOAA to manage striped bass, it’s beyond the abilities of these pikers.”

In the wake of the meeting, there were many more comments of that kind, but they began to taper off after a few days.  At that point, Maryland and New Jersey came out with their final rules, and the conversation grew more specific.

Maryland decided that, instead of adopting the Addendum VI rule of a one-fish bag and 18-inch minimum size for striped bass in the Chesapeake Bay, it would instead establish a complicated set of regulations that prohibited catch-and-release striped bass fishing prior to May 1, and pushed back the start of the season until that date.  

For the first two weeks of the season, the size limit was set at 35 inches, to give Maryland’s recreational fishermen a chance to kill the big, fecund females that are protected from anglers everywhere else on the coast; for the remainder of the season, the size limit falls to 19 inches, with a 2-fish bag for anglers on for-hire vessels and a 1-fish bag for everyone else.  The commercial fishery would take a 1.8 percent cut in quota; since Addendum VI called for an 18 percent cut for both the commercial and the recreational sector, Maryland anglers will have to take a greater than 20% cut in fishing mortality to make up the difference.

In Maryland, the commercial and for-hire sectors won at the expense of the recreational sector and the striped bass.

After Maryland announced the new rules on its Facebook page, it received well over 100 comments, almost all of them critical and many downright hostile.  One commenter wrote

“To call them ‘conservation measures’ is a joke.  Maryland Department of Natural Resources Fisheries has failed yet again to make meaningful changes to protect the future of our fishery.  Pathetic.”

Another noted that the Maryland announcement said that

“The department will announce a public comment schedule for those regulations in the coming weeks,”

and responded

“Why bother?  You ignored the overwhelming, collective voice this go around in favor of self interest.  Your sole responsibility is to protect the fishery and you’re wholeheartedly failing in that regard.”

A third person speculated for the reasons behind the Maryland regulations, writing

“It’s time the appointees stopped handing out political favors to their base and started working to conserve our fisheries resources for everyone in Maryland.  These regulations look more like feathering the nest for a future run for office—not even close to conservative action to protect the resources…”

A day later, in New Jersey, anglers intent on speaking in favor of striped bass conservation and a 28 to 35-inch coastwide coastal slot limit arrived to the scheduled 5:00 p.m. meeting to find the small meeting room already packed and the doors locked; anyone wanting to speak would have to wait outside in the small foyer or, in many cases, outdoors in the cold and the rain.

Some did get inside to speak, including those who warned that New Jersey’s failure to adopt the coastwide slot would threaten the striped bass’ recovery.  NJ.com reported that George Bucci, president of the Cape Atlantic Striper Club, clearly stated that

“Conservation equivalency has not proven to be effective in the past,”

but that

“New Jersey has proven to be a thorn in the side of the states trying to turn this [striped bass decline] around.”

However, such comments were in vain.  Those who managed to get into the meeting were confronted with a list of all of New Jersey’s possible striped bass management options, including the 28 to 35-inch coastwide slot.  But a few of those options, for a 28 to 38-inch slot limit, and a continuation of New Jersey’s “bonus” program, which turns over bass supposedly “saved” when the state outlawed commercial striped bass fishing to the recreational sector, which kills them in the commercial fishermen’s stead, were already highlighted in red.  

As part of its new regulatory package, New Jersey will move up the start of the bonus program, which targets 24 to 28-inch striped bass, from September to May 15, thus giving the state’s anglers the chance to remove even more of the big 2015 year class from the population before it matures and has a chance to contribute to the spawning stock.

Given that the highlighted options were selected before the first angler even entered the meeting room, making many anglers agree with the sentiment that, as one for-hire fishing boat operators’ association expressed it, “The fix is in.”

The reason for that was perfectly clear, and perfectly understandable, given the mentality of the people making the decision.  As the Asbury Park Press reported on its website,

“The [New Jersey Marine Fisheries] council settled on the option it felt gave fishermen the most opportunity to keep a fish.”

Of course, the whole point of Addendum VI was to end overfishing and reduce fishing mortality to the point where the spawning stock might have the opportunity to begin rebuilding, so providing fishermen with “the most opportunity to keep a fish” might not be the best way to achieve the addendum’s goals.

But, of course, it suits New Jersey’s goals quite well.  The bass will just have to look out for themselves.

The question now is what responsible anglers, in Maryland, in New Jersey, and everywhere else along the striper coastm, ought to do.

First, everyone must recognize that change needs to come from within the angling community.  It cannot be imposed from outside.  So responsible anglers must continue to do what they’re doing, releasing most or all of their bass, handing them properly, and setting an example for other anglers to emulate.  Each of us has the opportunity to educate other fishermen on the need for conservation every time we set out on the water.

A good example of that comes from Maryland.  

Although that state bent over backward to let its for-hire fleet kill as many fish as possible, some charter boat owners are making their own, principled stand.  Capt. Nick Lombardi, who operates his Redbeard Charters out of Annapolis, is one person trying to lead the way.

As reported by television station WUSA 9, Capt. Lombardi refuses to take advantage of Maryland’s planned regulations, and will not permit his customers to kill striped bass over 35 inches long.

“Throwing trophies back is not real popular around here.  We need to make a drastic shift in culture here on the bay…Just because it’s legal doesn’t make it right.”

Lombardi has no plans to allow customers to take more than one bass per day, either; his customers will be limited to a single, smaller fish caught during the regular season, which begins on May 16.  He will also avoid the summer catch-and-release striped bass fishery, which sees high levels of release mortality due to the warm waters and lower levels of dissolved oxygen.  He noted that

“You’ll be out on a hot day and pass 40 or 50 dead fish on the way to a spot.”

Instead, he’ll target species such as red drum, cobia, Spanish mackerel and bluefish because yes, despite the claims of the Maryland fisheries managers, there are other things to fish for in the Chesapeake Bay besides striped bass.

All of us, even though we don’t run charters, can strive to emulate Capt. Lombardi’s example.

But the one thing we can’t do is quit.  Whatever anger we feel must fuel future action.

No, Addendum VI’s outcome wasn’t as good as we might have hoped, but at least we’re only dealing with two rogue states, Maryland and New Jersey, when we could have been dealing with many more.  And the comments of a number of Management Board members made it clear that we’re being heard, even though it would be nice if a few more people were listening.

In the end, though, Addendum VI and the February Management Board meeting were only preliminary scuffles.  The main event will be the debate over Amendment 7 to the striped bass management plan.

That will be a long, difficult fight, but it is of the utmost importance, because the outcome of that debate will shape the way striped bass are managed for a very long time, and shape the health of the stock well into the foreseeable future.

For those of us born before man set foot on the moon, it will probably be, for all practical purposes, the last and most important striped bass fight we’ll face in what remains of our lifetimes.

HEALTHY FISHERIES NEED A STRONG NEPA

The National Environmental Protection Act, more typically referred to as “NEPA,” was signed into law by President Richard Nixon on January 1, 1970, after receiving unanimous approval in the Senate and broad, bipartisan support in the House of Representatives, where it passed on a 372-15 vote. 

As its name suggests, NEPA establishes a national environmental policy that, among other things, would see the United States government “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”

In order to do that, NEPA requires that all federal agencies “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement from the responsible official” that addresses

    i.            the environmental impact of the proposed action,

    ii.            any adverse environmental effects which cannot be avoided should the proposal be implemented,

    iii.            alternatives to the proposed action,

    iv.            the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and

    v.            any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Such so-called “environmental impact statements” are not mere bureaucratic exercises to be completed before a federal project can continue. NEPA requires that the relevant federal agency “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”

Federal courts have taken that requirement one step further when reviewing the adequacy of environmental impact statements, requiring that agencies take “a ‘hard look’ at [the] environmental consequences” of proposed actions.

That’s important, because NEPA provides protections beyond those offered by mere judicial review of agency actions.

To put that in a fisheries context, an environmental impact statement must be prepared in connection with any new federal fishery management plan, or any amendment of an existing plan. That provides stakeholders with a greater opportunity to challenge fishery management plans that might not be doing enough to end overfishing or protect overfished stocks.

A challenge could be based upon the judicial review provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all federal fisheries management. Those provisions only permit a court to set aside a regulatory action if such action is deemed to be “arbitrary and capricious,” or otherwise unsupported by any of the evidence on the administrative record, if the action is illegal or unconstitutional, or if action is taken without due regard for legally-mandated procedures. Under such standard, a court will not intervene merely because the National Marine Fisheries Service (NMFS) failed to consider management measures others than the ones adopted, or otherwise failed to look at all sides of an issue.

NEPA requires something more. A court applying NEPA standards may invalidate a fishery management action because NMFS failed to take a “hard look” at all of the suggested responses to a controversial issue, or because it failed to consider a wide enough range of alternate management measures.

The trial court’s decision in Anglers’ Conservation Network v. Pritzker provides a good example of how that works. The lawsuit was challenged NMFS’ decisions not to require 100% observer coverage of the trawl fishery for Atlantic mackerel, which catches significant numbers of shad and river herring as bycatch, and not to add shad and river herring as managed species under the Mid-Atlantic Fishery Management Council’s (Mid-Atlantic Council) Atlantic Mackerel, Squid and Butterfish Fishery Management Plan (Management Plan).

The court first considered whether NMFS’ actions were sustainable under the judicial review provisions of Magnuson-Stevens. It found that there was substantial evidence on the record, developed at Mid-Atlantic Council meetings, to support NMFS’ decision not to include shad and river herring in the Management Plan, and also found that existing law warranted NMFS’ refusal to require 100% observer coverage in the Atlantic mackerel fishery. If the court’s review was limited to the provisions of Magnuson-Stevens, the plaintiff’s challenge would have ended right there.

However, NEPA opened up a second line of judicial inquiry. Federal regulations adopted to implement NEPA require that, when proposing an action, an agency must, among other things, “present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and preparing clear basis for choice among options by the decisionmaker and the public,” and “rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for them having been eliminated.”

The court in Anglers Conservation Network v. Pritzker found that, by failing to include an alternative that analyzed the impact of not immediately adding shad and river herring to the Management Plan, and by failing to explain why such alternative was not included for detailed analysis, NMFS failed to take the required “hard look” at the issue and so failed to comply with the relevant NEPA regulations. Thus, the issue was returned to NMFS and the Mid-Atlantic Council for further consideration.

The trial court’s decision was eventually overturned on appeal, for reasons unrelated to NEPA, but the trial court’s analysis nonetheless demonstrates the value of NEPA in a fisheries conservation context.

Unfortunately, NEPA’s effectiveness has made it a target of those who oppose, and attempt to avoid, regulations that promote conservation. Yet, until recently, efforts to weaken NEPA have not had much success.

That changed on January 10, 2020, when the Council on Environmental Quality, at the behest of President Trump, issued a wide-ranging regulatory proposal clearly intended to weaken the impact of NEPA and make it easier to push through projects that have negative economic consequences.

The Federal Register entry announcing the proposed regulatory changes makes that clear. Changes to section 1500.1, the very first section of the NEPA regulations, would remove existing language that refers to NEPA as “our basic national charter for protection of the environment,” describes “‘action-forcing’ provisions to make sure that federal agencies act according to the letter and spirit” of NEPA, and calls for “decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Such language, and the values that it communicates, would be replaced with provisions that don’t speak to environmental protection at all.

The theme of downplaying environmental values, and the importance of environmental impact statements, continues throughout the proposed rules.

The current section 1502.1 states that “the primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government,” and declares that “An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant materials to plan actions and make decisions.” That contrasts with the new, proposed regulations, which clearly relegate environmental impact statements to the role of disclosure documents prepared “to ensure agencies consider the environmental impacts of their actions in decision making,” and baldly states that “An environmental impact statement is a document that informs.” Any notion that environmental impact statements should be used to advance NEPA’s policies and goals would be completely stripped out of the section.

The current effort to weaken NEPA bodes ill for American fisheries.

A weakened NEPA would make it far easier for government-supported irrigation projects to strip away the last cold-water refuges from already endangered stocks of Pacific salmon, and make it more difficult to remove federally-licensed dams that prevent anadromous fish on every coast from accessing upstream spawning grounds.

A weakened NEPA would make it easier to adopt federal fishery management plans that, like the Management Plan giving rise to Anglers Conservation Network v. Pritzker, don’t consider the ecosystem role of forage fish when setting harvest quotas for such species, or that permit the use of fishing gear that puts fragile habitat, or threatened species, at risk.

A weakened NEPA is something that America’s fisheries, and its marine ecosystems, cannot afford.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/