Thursday, February 20, 2020
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.