THE GREAT RED SNAPPER COUNT: NO SILVER BULLET

 

Last Thursday, I wrote about one of the longest continuing sagas in recreational fisheries management, the continued whining of private boat fishermen in the Gulf of Mexico, who have been overfishing red snapper for at least the last couple of decades, and get upset every time regulators tell them to stop.

As I noted last week, they’ve even fallen so low that they’re describing federal fisheries managers’ efforts to end overfishing as some sort of “gamesmanship,” rather than responsible fisheries management, as if federal managers scored some sort of win if they unreasonably restricted recreational landings. 

It’s a ridiculous position for anyone who aspires to be a player in the fisheries debate to take, for anyone who has been a part of the process for even a little while should realize that if federal managers were seeking easy "wins," they wouldn't work so hard to calculate the true level of landings; instead, they could merely take the data at face value and declare that all was well.  It’s only when managers do their jobs right, engage in rigorous scientific inquiry, and limit harvest to sustainable levels, that they get criticized by fishermen, and become the target of political efforts that make it harder for them to do their jobs. 

Thus, if there’s any sort of “gamesmanship” going on, it’s being conducted by the recreational fishing industry and the “anglers’ rights” groups that presume to speak for all recreational fishermen, who are consistently embarking on political maneuvers that, they hopw, will allow them to do an end run around science-based management measures designed to maintain the long-term sustainability of the red snapper fishery.

This time, such recreational organizations, in response to managers’ efforts to end overfishing, are betting on a new political gambit.  They have convinced fourteen members of Congress (half of whom have recently received donations from either the Center for Sportfishing Policy’s or American Sportfishing Association’s political action committees) to send a letter to Secretary of Commerce Wilbur Ross, asking him to halt any action to harmonize state and federal harvest estimates, and constrain recreational red snapper landings as a result of such combined estimates, until something called the "Great Red Snapper Count" has been completed.

According to that letter

“one of the most disputed questions in this process—stock abundance—is due to be answered very soon by the Great Red Snapper Count, an independent survey of absolute red snapper numbers by more then a dozen marine science institutions around the Gulf Coast.  Congress authorized the Great Red Snapper Count due to an overriding lack of confidence in federal methods and data.  It is premature to raise the issue of calibrating state data to federal data before the independent results of the Great Red Snapper Count are known, verified, and utilized in an interim assessment run.  Indeed, those results may very well indicate that far more profound changes to the federal fishery management system are warranted.”

The Great Red Snapper Count appears to be an impressive bit of research, that will see a number to top-notch fisheries scientists employ cutting-edge research techniques to collaborate on a project that should provide a better idea of the number of red snapper present off the U.S. Gulf Coast.

But to allow overfishing to continue, in the hope that the results of such research will justify such action, is unwise.  The Great Red Snapper Count should provide valuable data, but might not result in meaningful changes to current management measures.

That truth is reflected in the far more moderate languate that fisheries professionals involved in the research use to describe their project.  Texas A & M University’s Harte Research Center for Gulf of Mexico studies puts things in a more realistic perspective when it says

“The trends in fishing activity over the past 150 years have led to a depleted [Gulf red snapper] stock, which is now under a rebuilding plan.  As the stock continues to show signs of recovery, fishermen are seeing more (and larger) red snapper in the population; however, the spawning potential of the population (the number of eggs produced by reproductively active females) is still lower than the rebuilding target.  The conundrum caused by a population that is rapidly rebuilding, but has not yet met its rebuilding target (the biomass needed for long-term sustainable yield), has led to discontent among some user groups…

“The project…aims to estimate the population of red snapper in the U.S. waters of the Gulf of Mexico.  This evaluation will be conducted separately from the assessment process employed by the Gulf of Mexico Fishery Management Council through the SEDAR process…

“The Great Red Snapper Count will provide an independent estimate (separate from the stock assessment-derived estimate) of red snapper abundance in the U.S. Gulf of Mexico.  Results from this study will be compared with stock assessment results to examine what accounts for any differences observed.  This project represents a unique opportunity to bolster the stock-assessment derived estimate of red snapper abundance in the U.S. Gulf of Mexico, with the goal of ensuring the most robust management possible for this iconic fish species.”   

Another institution involved in the project, the Mississippi State University Extension, states that

“the Great Red Snapper Count will provide new insight into the Gulf of Mexico red snapper population, while also helping to calibrate the current stock assessment.  Ultimately, this will lead to reduced stock assessment uncertainty…”

It’s important to note that neither academic institution is suggesting that the Great Red Snapper Count will revolutionize Gulf red snapper management.  Neither is predicting that the study will allow significantly higher red snapper landings or significantly relaxed red snapper regulations, although MSU did predict that the project would lead to

“increased revenue to coastal communities, and maximum fishery access for stakeholders.”

But in reading that statement, it’s important to remember that “maximum fishery access” is a far different thing than “significantly more fishery access.”  It’s possible, although probably unlikely, that “maximum” fishery access still means somewhat less access that anglers enjoyed in 2019 and 2020.

Remember that the sole purpose of the Great Red Snapper Count is, as its name suggests, merely to count Gulf red snapper, and hopefully come up with a more accurate estimate of how many there are.

And remember that, even if the project reveals that the Gulf red snapper population is much bigger than previously believed, that the annual catch limit will not necessarily spike, and the recreational regulations may not be relaxed, as a result.

That’s because absolute abundance—what the Great Red Snapper Count intends to determine—is only one factor that biologists consider when assessing the health of a fish stock.  Such abundance, unless considered in context with other relevant factors, is pretty much meaningless.

That statement would probably surprise many stakeholders, who assume that, if the Great Red Snapper Count finds that the population is significantly larger than previously believed, then less restrictive regulations can be put in place.

But that’s not necessarily true.

Remember that the Harte Research Center said that the project’s results would be used to “bolster” the stock assessment, a statement similar to that of Mississippi State, which talked about using such results to “calibrate” the assessment.  So no one should expect big changes to occur immediately after the data has been compiled and analyzed, and the likely peer review is done.

Science doesn’t work that way.

Instead, the results of the Great Red Snapper Count will be integrated into the stock assessment.  It will be considered along with all of the other data that has been compiled to date, so that the stock assessment can be updated with the best science available. 

In concept—although a lot of people won’t be happy to hear this—the process won’t be much different from calibrating the states’ catch, landings, and efforts estimates with the estimates produced by federal managers—the very thing that has triggered the current anglers’ rights backlash—or from calibrating the results from the Marine Recreational Information Program’s new Fishing Effort Survey with results from the old Coastal Households Telephone Survey, a process that revealed that red snapper anglers were landing far more snapper than previously believed.

And we all know that those two exercises didn’t turn out like red snapper anglers planned.

Let’s assume that the Great Red Snapper Count reveals a population larger than that calculated in the stock assessment.  What could happen next?

As I mentioned above, scientists won’t immediately assume that the larger population means that the stock is recovered.  Instead, they would try, as the Harte Research Center said, “to examine what accounts for any differences observed.”

If the population proves to be bigger than previously believed, because earlier sampling efforts had, perhaps, missed a lot of red snapper habitat, or underestimated the density of fish around the habitat that was sampled, it is reasonable to believe that the population has always been underestimated. 

It would have been underestimated back in the 1990s, when the population hit all-time lows, and the size of the unfished stock probably would have been underestimated, too.

If that is the case, then the biomass of mature female red snapper needed to achieve the spawning potential target of 26 percent might be quite a bit larger than previously believed, and the stock may still have a lot of rebuilding to do. 

Under such a scenario, regulations might not be relaxed as much as some people hope.

There is also the question of the fish’s average age.  Female red snapper become far more fecund as they grow older.  As noted in a blog published by the Gulf of Mexico Fishery Management Council,

“The health of the red snapper stock is not based only on the number of fish or biomass (weight) of red snapper in the Gulf.  On the surface it may seem to be the practical way to make that judgment but, it’s really not the best indication of a fish stock’s sustainability, or ability to reproduce for years to come.  The red snapper stock is measured in terms of egg production, known as spawning potential.  Larger, older fish produce many more eggs than smaller, younger fish, so counting egg production to predict the health and sustainability of the stock is more accurate than counting numbers of fish.

“…Red snapper batch fecundity (the number of eggs in millions produced by each fish during a spawn) changes as the fish get older…the number of eggs produced by a red snapper really takes off at about 8 years.

“To put this spawning ability into perspective:  One 24-inch female red snapper (about a 8 year old fish) produces as many eggs as 212 17-inch females (about 5 years old).”

So the Great Red Snapper Count can end up counting a lot of red snapper, a lot more than biologists had thought were out there.  But if they don't have the right age mix, all of the red snapper counted might fall well short of producing the spawning potential of a rebuilt stock.

The bottom line is that red snapper management presents a complex puzzle.  Absolute abundance is only one piece.  The Great Red Snapper Count is not some sort of silver bullet that will pull the whole puzzle together and make the picture clear.

There is no question that the Great Red Snapper Count is an impressive effort, that should make a significant contribution to what scientists know about Gulf red snapper.  But, in the end, it’s impossible to predict what the results from such data will be until the experts crunch the numbers and reveal their answers.

Maybe we’ll find that the stock is fully rebuilt.  Maybe it’s close, and maybe it still has a long way to go.  The numbers will ultimately decide. 

But only two things can be predicted with certainty. 

If the Great Red Snapper Count finds that there are more snapper in the Gulf than the stock assessment predicted, opponents of federal fisheries management won’t wait for the scientists to figure out what that means.  Instead, they’ll spin that one bit of data to argue that, as suggested in the congressional letter, “far more profound changes to the federal fishery management system are warranted.”  And you can bet that those “profound changes” would all lead to a bigger recreational harvest, and little if any angler accountability.

And if the Great Red Snapper Count ultimately results in scientists tweaking the stock assessment, but keeping relatively restrictive management measures in place, we’ll see the same critics make a sudden u-turn, call the program they once praised “bad science,” and find a new political game to play.

Because when the only thing that you want to do is kill more fish and escape all accountability for your actions, those are about the only options you have.

RECREATIONAL LANDINGS OF GULF RED SNAPPER: THE TRUTH WILL OUT

People don't quote time-tested aphorisms too often these days, but that doesn’t mean that those old bits of wisdom don’t still ring true.

When I look at what’s going on with recreational red snapper fishing down in the Gulf of Mexic, one of those sayings come clearly to mind

“The truth will out,”

although the same people and organizations on the Gulf Coast who have been fighting federal fishery managers for the better part of the decade are  still doing their best to keep their dreams of overly-liberalized regulations from running aground and breaking up on the shoals of reality.

As long-time readers of this blog already know, the Gulf recreational red snapper fishery has long been a source of controversy, with the boating and angling trades associations, in alliance with “anglers rights” groups purporting to represent the chronically-overfishing private boat anglers, squared off against just about everyone else on, including federal regulators, the conservation community, the commercial and for-hire fleets, and private boat anglers who are more concerned with the long-term health of the stock than in maximizing short-term landings.

The fight culminated in what was colloquially known as the “Modern Fish Act,” a bill originally intended to relieve anglers of many of their responsibilities for conserving coastal fish stocks, and perhaps to steal a little bit of quota from the commercial fishery in order to increase recreational landings even more, along the way.  But Congress knew better than to let that happen, and the version of the Modern Fish Act that passed turned out to be an inconsequential sop to the Gulf snapper fishermen, and little more.

However, those fishermen and organizations did manage to convince the Gulf of Mexico Fishery Management Council to allow the states to set private boat recreational red snapper regulations for both state and federal waters, provided that such regulations constrained recreational red snapper harvest within both the recreational annual catch limit and each state’s allocation of fish.

After the Gulf Council adopted such regulations, the whole Modern Fish Act crowd celebrated, with Jeff Angers, president of the Center for Sportfishing Policy, an umbrella organization for all of the angling and boating groups trying to water down the way federal fishery managers regulate recreational fishing, saying in a press release that

“We have reason to celebrate today thanks to the willingness of state fish and wildlife agencies on the Gulf Coast and the leadership of Secretary Ross and congressional champions like Senator Richard Shelby (R-Ala.) and Representatives Garret Graves (R-La.), Steve Scalise (R-La.) and Austin Scott (R-Ga.).  Over the past two years, private recreational red snapper anglers in the Gulf have become more active partners in the states’ data collection systems and enjoyed much longer red snapper seasons than the federal system was able to provide.”

The same press release declared

“This alternative management approach provides a proven model that could be applied to other fisheries to improve public access while ensuring conservation of America’s marine resources.”

I wrote about all of this last June, in a piece that noted that the different state and federal estimates of angling catch, landings, and effort, which all employ different methodologies and so return different results, still had to be calibrated, in order to come up with a “common currency” that allows such estimates to be accurately compared and combined.  I noted that despite the Center’s hype, the new management approach

“still has a few bugs in it.”

I observed that such problems

“can be fairly easily fixed, provided that the members of the Gulf Council have the requisite political will, and further provided that the states…are willing to get their recreational landings data into a form that is both accurate and usable on a regional basis.”

I also admitted that I was somewhat skeptical that would happen, saying

“given the seemingly intransigent problems that have allowed the private recreational sector to continually kill too many red snapper, at this point, the only thing I can say is that I’ll believe it when I finally see it, and not a moment before.”

It appears that my skepticism was justified.

Understand, it’s not that the Gulf Council or state fishery managers are shirking their jobs.  They’re not, even though one could argue that they might have been able to put things in place somewhat faster.  Instead, the usual suspects—representatives of the organizations that comprise the Center for Sportfishing Policy—are not celebrating anymore.

Instead, they may be ruing the fact that they forgot another old aphorism

“Be careful what you wish for, because you might get it,”

as they discover that merely handing private boat red snapper management over to the states doesn’t mean that they will be able to keep killing too many fish.

The calibration issue explains why.

The current recreational red snapper regulations have, over the past couple of years, been based on a 2018 stock assessment which, in turn, relied upon federal recreational effort data derived from the now-abandoned Coastal Households Telephone Survey, which was found to significantly underestimate recreational landings.  That survey has since been supplanted by a new Federal Effort Survey that replaces the random calls used in the Telephone Survey with a questionnaire randomly mailed to registered anglers as well as to some members of the general public (in order to capture unlicensed anglers). 

The new effort survey has revealed that recreational red snapper landings in some states were roughly 2 ½ times higher than previously believed.  That means that the recreational regulations based on the effort data derived from the old telephone survey may not have been sufficiently restrictive.

There is also the question of state landings estimates, which differ from those developed by the federal Marine Recreational Information Program, and how to incorporate those into stock assessments and the regulatory process.

There are at least two issues at play here.

One is that MRIP is at its best when relatively large numbers of anglers are surveyed; the relatively short red snapper season necessarily limits such number, particularly when data is developed on a single-state basis, and thus impairs the precision of the estimates.  For the years 2015-2019, the average “percent standard error” used to judge the precision of MRIP private boat red snapper estimates was between 21 and 22 in west Florida and Alabama, and nearly twice that in Mississippi, although it should be noted that Mississippi’s estimates grew increasingly precise over the years, and by 2018 and 2019, were roughly in the same range as the other states’ numbers.

The other is that each survey uses a slightly different methodology, which means that if the same surveys were used to sample the angling population in the same area, all would return different results, because they would sample somewhat different subsets of that population, and do it in somewhat different ways.  Thus, all of the surveys must be calibrated so that, when their estimates are combined, all of the numbers would be expressed in a “common currency” that assured that managers would be comparing apples to apples, rather than trying to turn an entire fruit bowl into some sort of coherent and meaningful data.

And that’s what currently has the Center and its constituent organizations upset.  Based on the original state allocations and resultant regulations, they had believed that anglers would have longer red snapper seasons, in which they might harvest more fish.  But when the calibration is done, that doesn’t happen.  Instead, it shows that the states of Alabama, Mississippi, and Texas have all overfished their red snapper quotas, and will have to be held accountable for the result.

If there is one thing that the Center detests, it is anglers being held accountable for their overages.  Tjhe Center and its member organizations are all about promoting anglers’ rights, but when it comes to anglers’ responsibilities, well, that’s not really their thing.

So a recent article in The Fishing Wire finds those folks complaining again about red snapper management.

“Just two years after approving a plan to allow the Gulf states to develop their own recreational data collection systems to better manage red snapper and certifying those state programs, NOAA Fisheries intends to force the states to calibrate their data back to the flawed federal data system that caused significant turmoil in the first place.  The federal data system, Marine Recreational Information Program (MRIP), has been widely criticized by many in the recreational fishing community, the states and in Congress, and its limitations are what led the each of the states to develop their own data collection systems.”

Such comments are an interesting collection of fact, spin, and half-truths that serve to cloud the actual issues, rather than to provide any real understanding.  For example, the state programs were certified to work in conjunction with, and not supplant, the Marine Recreational Information Program.  In fact, the National Marine Fisheries Service views them as a part of that program, referring to the “MRIP state surveys” and saying

“The MRIP state surveys are designed to improve regional monitoring of the recreational red snapper catch and effort.  Estimates from these surveys can be used for federal scientific stock assessments and fishery management once there is a transition plan that describes how to integrate state and general data, and how to calibrate new and historical catch and effort data.”

Thus, the state surveys were always intended to be a part of what the anglers’ rights crowd call the “flawed federal data system.”  And the next thing to ask is exactly why the federal system is supposedly “flawed?”  The National Academy of Sciences evaluated it back in 2017, and gave it pretty high marks—not a perfect score, there’s always room for improvement, but still a good grade—and made it clear that it was appropriate for most management purposes.

To take that question a step further, why was MRIP “widely criticized by many in the recreational fishing community, the states and in Congress [but not, it should be noted, by scientists, statisticians and others who are have the academic qualifications to intelligently pass judgment upon its worth]?”

The answer to that is pretty simple:  Because MRIP, and the calibrated state surveys, won’t allow Gulf private boat red snapper anglers to kill as many fish as they want to, and thus—or so people believe—won’t allow boat manufacturers and dealers to sell as many vessels, and won’t allow tackle manufacturers and shops to sell as much gear, as using state data in its raw and uncalibrated form.

If you look at the comments made by the Center for Sportfishing Policy, as well as by many unrelated members of the angling industry, you’ll discover that the criteria for data and science and such are pretty simple:  “Good data” and “good science” let you kill more fish, while “flawed” systems and “bad data” lead to more restrictive regulations.  It’s really as simple as that.

Thus, here in the Mid-Atlantic region, we saw the fishing industry embrace a 2016 stock assessment that found that the black sea bass biomass was well over twice the biomass target, and based on that assessment, demand less restrictive rules.  

But then we saw the very same people challenge the conclusions of stock assessments that said that striped bass and bluefish were overfished, positing vast unassessed populations of both species somewhere offshore, and in the case of striped bass, complaining thatthe stock assessment based its findings on population models and thestatistically verifiable data that it used to populate those models, and not on“alternative data” [yes, that phrase was used] that assumed the existence ofsuch offshore populations, and so the striped bass stock’s health.

It’s no different with red snapper.  The prospect of red snapper anglers being held accountable for their overages—overages that, as I noted in my essay last June, were predictable before the season ever started—outrages the responsibility-averse anglers’ rights crowd, with Ted Venker, the inappropriately-titled “conservation director” or the equally inappropriately-named “Coastal Conservation Association,” whining that

“There is clearly some gamesmanship going on…After the states invested the time and money to build more timely and accurate data systems and operated them for more than two years, NOAA Fisheries now comes back and says that all the new data must be converted back into its own flawed system for management purposes…It is absurd.”

It’s hard to decide whether Venker’s comments are intentionally disingenuous, or whether he merely lacks sufficient understanding of how MRIP works, and needs to do a bit more research before making any more embarrassingly inaccurate comments.

For while the state surveys—what NMFS clearly acknowledges were always intended to be the MRIP state surveys—do provide more timely data than did the un-enhanced MRIP system, discussions of which is “more…accurate” misses the point that calibrating the state surveys to MRIP isn’t about any survey’s inherent accuracy, but instead about putting all of the surveys’ data together in a way that allows them to be compatible. 

It’s like emptying out your wallet at the end of the year, after doing a bit of traveling, and finding that along with too few American dollars, you have some Canadian dollars, and a handful of Euros, too.  But since you can’t spend Canadian dollars or Euros in the United States, you convert them all to American dollars so that you can use them.  Along the way, you find that the currencies aren’t all worth the same:  Canadian dollars are worth less than their American counterpart, while Euros are worth more, but once converted to U.S. currency, they all spend the same.

That’s the same sort of relationship that the state surveys have to MRIP.  Although the folks howling about the unfairness of it all are concentrating on Alabama, Mississippi and Texas, which overfished so badly that they might not have any federal red snapper season at all next year, they conveniently ignore the fact that when you convert the western Florida data to the MRIP norm, just like converting Euros to U.S. dollars, Florida ends up getting more fish.

Things don’t just go one way.

But once again, a system that takes fish away is “bad,” so you whine, while one that provides a few extra is “good,” so…

Of course, it’s not just the Center and its disciples who are unhappy with the calibration results.  The states of Texas and Louisiana have now filed suit against the Department of Commerce and NMFS, hoping to avoid the impacts of emergency regulations that will shorten or shut down their red snapper seasons.  It’s particularly ironic that Texas would do so, as its state survey is so old—it precedes not only MRIP, but MRIP’s predecessor survey, which went on line in 1981—and creaky that correlation with MRIP is impossible.  In its 2017 review of MRIP, the National Academy of Sciences noted that

“Unfortunately, no comparison of results between the Texas survey and the MRIP exist…

“A full review of the Texas Marine Sport Harvest Monitoring Program is beyond the scope of this report.  However, based on a presentation to the committee about the survey and on discussion with regional partners and stakeholders it is questionable whether the estimates produced by Texas are comparable to those of the MRIP.  At the very least, it is highly advisable that the Texas survey be reviewed by an independent panel so that its applicability to regional fisheries assessment and management can be objectively assessed.  [emphasis added]”

For those not used to the genteel language of scientific reports, that highlighted phrase can be roughly translated into “and Texas ought to talk to somebody about replacing their crappy survey with something that might really work.”

But even so, the anglers’ rights folks claim that, by revising the numbers, it’s NMFS, and not Texas, that is wrong.

Although the state management effort generated a lot of false hope, it’s pretty clear that the red snapper debate in the Gulf of Mexico is far from over.  No matter who's counting, private boat anglers are still killing too many fish, and need to be brought to account.

Scientists will continue to refine their surveys and methods, trying to find the truth.  Fishery managers will work to apply the scientists' data to the management plan, in an attempt to prevent overfishing and keep the red snapper recovery on track.

And the Center and its asssociates will keep howling about how unfair it all is, and keep telling the world that the science—and the entire management process is flawed.

Unless, of course, one day gives them more fish.

 

CHESAPEAKE STRIPED BASS: FISHERY MANAGEMENT ISN'T ENOUGH

 The Atlantic States Marine Fisheries Commission has released the preliminary agenda for its October Annual meeting.  It appears that the Atlantic Striped Bass Management Board may be preparing to release the Public Information Document for the pending Amendment 7 to ASMFC’s striped bass management plan, despite the concerns that many Management Board members expressed at the August meeting about beginning the public comment period during a time when COVID-19 remains a serious threat.

But if COVID-19 remains a threat to anglers wishing to comment on the Public Information Document, then the document itself, and the contemplated Amendment 7, also presents a threat to the striped bass resource, if it is rushed through the process by those who are more concerned with increasing short-term landings than in the long-term health of the stock.

Such improvident managers may or may not be successful; there are also a number of strong conservation advocates on the Management Board, and there is a fair chance that they might succeed in producing a more conservative Amendment 7.  

Yet the possibility of a bad amendment is not the most immediate, and probably not the most serious, threat to the future of the striped bass stock.

As most readers already know, the Chesapeake Bay is the most important spawning ground, and the most important nursery area, for the coastal migratory striped bass stock.

And the Chesapeake Bay is facing a serious threat.

I have a friend who lives down in Maryland, somewhere near Kent Narrows, who loves to fish for striped bass.  He’s a fly fisherman by choice, but isn’t averse to soiling his hands with a spinning rod if that’s what conditions call for.  He fishes all through the year, or at least through the legal season, which is not the same thing, particularly since Maryland banned catch-and-release for part of the year.

When he talks about fishing for striped bass these days, there is always a wistfulness in his voice. 

Part of that comes from the shortage of stripers.  The bass are overfished, and that shows even in the Chesapeake, where anglers get a shot at the immature fish while they’re still concentrated inside, and haven’t yet scattered themselves up and down the coast in the course of their coastal migration.

But a big part of his unease comes from the condition of the bay, where pollution carried down by the rivers has sparked hypoxic conditions, creating a big summer “dead zone” where fish cannot live, and which forces what bass remain to concentrate in places where oxygen levels and water temperatures allow them to survive—at least until the added stress of Maryland’s summer angling season becomes the coup de grace that causes too many released fish to die.

Yet while Maryland’s section of the bay is badly affected by nitrates, phosphates, and other pollutants, there’s not too much that the state can do about it.  Outside of the nitrogen runoff from Maryland poultry farms (and there’s a lot of that, estimated at 24 million pounds per year), much of the problem originates outside Maryland’s borders, from farms and municipalities in states as far away as New York.

It’s not a new problem.  

In 1983, the governors of Maryland, Virginia, and Pennsylvania, along with the mayor of Washington, D.C. and the U.S. Environmental Protection Agency, came together to create what is now the Chesapeake Bay Program, a cooperative, congressionally-funded effort to address pollution problems in the Chesapeake Bay.  Between 2000 and 2002, the governors of three other states in the Chesapeake watershed, New York, Delaware, and West Virginia, signed on to the program and agreed to meet its water quality goals.

In 2010, the Environmental Protection Agency established the “Chesapeake Bay Total Maximum Daily Load” for pollutants flowing in from the watershed, which has been described as

“a federal ‘pollution diet’ that sets limits on the amount of nutrients and sediment that can enter the Bay and its tidal rivers to meet water quality goals.

“Each of the seven Bay jurisdictions has completed Watershed Implementation Plan (WIP) that spells out detailed, specific steps the jurisdiction will take to meet these pollution reductions by 2025.  Federal, state and local governments coordinate through the Bay Program partnership to develop the WIPs.

“The WIPs will guide local and state Bay restoration efforts through the next decade and beyond.  The Bay jurisdictions will use their two-year milestones to track and assess progress toward completing the restoration actions in their WIPs.”

It was a big step forward.  An array of industrial interests, including representatives of the farming, real estate development, and other pollution-prone businesses, challenged the effort in 2011, but that challenge thankfully came to naught when lower courts ruled against them and the Supreme Court declined to accept their appeal.

Things looked good through early 2017, when the incoming Trump Administration sought to slash all funding for the Chesapeake Bay Program from the 2018 budget claiming, according to the Washington affiliate of NBC News, that

“the cuts will return the responsibility for funding ‘local environmental efforts’ to state and local entities, ‘allowing the EPA to focus on its highest national priorities,”

which “highest national priorities,” judging from the agency’s recent actions, presumably included weakening the Clean Water Act, increasing mercury releases from industrial smokestacks, and allowing an open-pit mine to threaten the salmon runs in Alaska’s Bristol Bay.

Fortunately, Congress—including the Republican-controlled Senate—likes polluters and their effluent far less than Trump does, and has continued to fund the Chesapeake Bay Program.  Just last Wednesday, the Senate passed a bill that included $92 million in annual funding for the Program in every year through 2025; House passage of the bill is very likely.

$92 million to clean up the Chesapeake will go a lot farther than the mere $7.3 million—less than 10 percent of its typical annual funding—that the Trump Administration planned to provide the Program in its 2021 budget.

But money, in itself, still isn’t enough.  States must take that money and spend it in ways that assure that they will meet their Watershed Implementation Plan goals, and keep the Chesapeake Bay on its “pollution diet.”

Right now, that just isn’t happening.   Some states aren’t doing their share, and the Environmental Protection Agency isn’t holding them to their agreement.

It appears that the Environmental Protection Agency approved Pennsylvania’s implementation plan last year, even though it is likely to achieve only 73 percent of the 31 million pound nitrogen reduction that the state had previously committed to (in the runup to this year’s election, it’s impossible not to note that Pennsylvania is a must-win state for Trump, that a lot of the state’s nitrogen runoff can be attributed to manure and other pollutants associated with the state’s dairy farms, and that manure country is usually Trump country, so the agency’s lax approval standards were probably understandable).

New York fell short of its nitrogen reduction commitments by over 1 million pounds per year, and apparently has no plans to find funding to correct that shortfall; excess nitrogen from New York’s farms and stormwater runoff is likely to keep finding its way to the headwaters of the Susquehanna River, and thus into the Chesapeake Bay.

The Environmental Protection Agency’s failure to properly discharge its responsibilities, and enforce state obligations with respect to the Chesapeake’s pollution load, has bought it at least one lawsuit, and at least one more is likely on the way.  On September 10, the Maryland Watermen’s Association, a commercial fishing group, and the Chesapeake Bay Foundation initiated legal action intended to compel the agency to enforce the pollution standards that it had established ten years ago.

Maryland’s Anne Arundel County, some elected officials, and two Virginia livestock farmers have signed on as additional plaintiffs to the suit.

The attorneys general for the states of Maryland, Virginia, and Delaware, and also for the District of Columbia, did not join the Watermen’s suit, but instead are filing their own, similar action against the EPA.

Those lawsuits—if not the situation which spawned them—are good news for striped bass, as they probably represent the best chance to clean up the Chesapeake Bay, at least while the Trump Administration, and the Trump EPA, remain in Washington.

It seems unnecessary to observe that as fish, striped bass live in water.  But it’s probably necessary to remember that any water is not good enough.  W water must contain enough oxygen, be of the right temperature, and support enough prey, if the striped bass is to thrive.

There are already indications that the nitrogen loading in Chesapeake Bay could be having an impact on the bass that goes beyond just hypoxia.  The last benchmark stock assessment suggests that it could be making the fish more vulnerable to disease, in particular Mycobacteriosis.  That assessment observes that

“A rise in Mycobacterium disease in the Chesapeake Bay could be causing increases in natural mortality.  Two primary hypotheses have emerged regarding the mechanism for increased natural mortality.  One is that elevated nutrient inputs to the Chesapeake Bay, with associated eutrophication, results in the loss of thermal refugia for striped bass, forcing them into suboptimal and stressful habitat during the summer…  [citations omitted]”

 Mycobacteriosis is particularly common in younger striped bass, with its prevalence increasing steadily until the fish reach five years of age; after that, the percentage of infected fish declines, likely because the older fish begin to die from the infection.

Add the impacts of the disease to the impacts of hypoxia on the younger year classes of bass, as well as on their prey, and the likely effects of the EPA’s failure to enforce total daily load requirements on the upstream states becomes all too apparent.

Thus, while we all need to worry about how the ASMFC will treat the striped bass in the upcoming Amendment 7, we need to worry about water quality in the Chesapeake Bay as well.

Because if Environmental Protection Agency inaction, and increasing nutrient load in the Chesapeake Bay renders that water body less and less suitable to produce and host strong year classes of immature fish, all of the amendments that the ASMFC might produce won’t be enough to restore the stock to good health.

 

 

MONITORED FISHERIES: WHAT ARE SOME FOLKS TRYING TO HIDE?

 

Fisheries management involves a number of interrelated variables. 

To manage fish stocks effectively, scientists must know, among other things, what fishermen are catching, they need to know how many fish are being caught and landed, they need to know the age and size of those fish they need to when fish are being caught, and they need to know where fish are being caught.

Those factors can be important both independently and when viewed in combination.

For example, back in the late 1970s, a cursory look at the striped bass fishery would have suggested that all was well.  Fishermen, both recreational and commercial, were still catching a lot of bass.  But once one looked past that basic fact, and started to investigate the composition of the catch, a problem quickly became manifest:  While there were still plenty of bigger fish—bass from 20 to over 50 pounds—being landed, smaller bass were becoming increasingly scarce.

Such scarcity boded problems for the future, that were reflected in the Maryland juvenile abundance index, which depicted a period of below-average recruitment that began in 1972 and continued through 1988.  The age and size data was there for everyone to see, and a few people did warn of what it portended, but the continuing high striped bass landings blinded both fishermen and fishery managers, leading to inaction and, eventually, the collapse of the Atlantic coastal migratory striped bass stock.

Even after the bass stock collapsed, there were pockets of good fishing for very large fish on Block Island and parts of Cape Cod, areas of the striped bass’ core summer range where there were still aggregations of fish, even when most of the rest of the coast was barren.  The fact that fish were being caught was not the most significant datum; what mattered was where they were caught and, by extension, where they weren’t.

Where fish are caught can matter for a number of reasons.  

While striped bass migrate along much of the Atlantic coast—an individual fish might winter off North Carolina, but spend much of the next summer off Maine—other species may be represented by localized stocks that overlap during the winter (or some other season), but do not mix on the spawning grounds.  Black sea bass off New England and the mid-Atlantic provide an example of such behavior. 

The New England Fishery Management Council breaks cod down into two stocks—Gulf of Maine and Georges Bank—which are, in theory, spatially and reproductively isolated.  A new study, released in June, paints a more complicated picture, and suggests that there may be as many as five reproductively isolated stocks, that are present in different locations throughout the year.

In either case, knowing when and where fish were caught is a prerequisite to effective management; placing onerous restrictions on black sea bass anglers up in New England, for example, might not yield the desired results if New Jersey adopts much weaker regulations that impact the same fish after they migrate to their wintering grounds near, and sometimes south of, Hudson Canyon.  Catching cod in the Gulf of Maine, and then saying you caught them on Georges Bank, might hamper biologists’ ability to effectively manage either local stock.

In some cases, fish aggregate to spawn in very specific locations.  Thus, the Gulf of Mexico Fishery Management Council decided to halt all fishing in two areas off Florida, known as “Madison-Swanson” and “Steamboat Lumps,” when gag grouper are typically spawning, in order to prevent fishermen from targeting gags when they are most vulnerable, and so place too much stress on the spawning stock.

Once again, where fish are caught—or not caught—is an important part of the management process.

Thus, it’s not unusual for the National Marine Fisheries Service to adopt regulations that require large-scale harvesters—commercial fishermen and sometimes for-hire recreational vessels—to carry equipment on board that records their whereabouts, and so allows fisheries managers—including law enforcement—to know when and where they are fishing, and by extension, where their catches are made.

Currently, NMFS requires fishermen who participate in about 30 different fisheries, in regions as different as New England, the Gulf of Mexico, Alaska, and the Marianas Islands in the western Pacific, to install vessel monitoring systems (VMS) on their boats, so that they may be tracked while out on the water.

As of January 5, 2021, the VMS requirement will be expanded to for-hire vessels—head boats and charter boats—that hold permits issued pursuant to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico and/or the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region.

Few fishermen like to be subject to VMS requirements, first because the equipment—including a continuing subscription to a service that monitors their location—costs them money, and also because they don’t like the idea of being monitored by anyone; fishing is a business with a long tradition of secrecy, not only to keep competitors from knowing where fish are being caught, but also to keep the government from knowing when a fisherman, in pursuit of profits, takes one step—or maybe more than a few—over the line drawn by regulators.

In the case of the pending VMS requirement for for-hire vessels, that discontent went a bit further, with a handful of vessel owners and operators filing suit against the Secretary of Commerce, seeking to have the regulation invalidated.  

The plaintiffs are represented by a group called the New Civil Liberties Alliance, a group of attorneys and associated individuals who appear to be philosophically opposed to the administrative branch of government and the regulations that it promulgates.  On the home page of its website, such Alliance proclaims that

“NCLA views the administrative state as an especially serious threat to constitutional freedoms.  No other development in contemporary American law denies more rights to more Americans.  Although Americans still enjoy the shell of their Republic, there has developed within it a very different form of government—a type, in fact, that the Constitution was designed to prevent.  This unconstitutional administrative state within our U.S. government is the focus of NCLA’s concern.  NCLA urges Americans to recognize the administrative threat and join our civil liberties movement against it.”

NCLA holds itself out to be a non-profit organization.  A quick look at its IRS Form 990 for 2018—the most recent such form available--suggests that it does not charge any legal fees to those it represents, but instead receives all of its income—a little under $3 million in each of 2017 and 2018—from grants, gifts, donations, etc., although it provides no indication of where such grants, donations and similar funding comes from.

So, in return for what appears to be free legal representation, the plaintiffs in Rivers End Outfitters v. Ross are basing their regulatory challenge on a series of arguments questioning the constitutionality of the rule, which claim that it runs afoul of the 4^th Amendment’s prohibition of warrantless searches, the 5^th Amendment’s protections against takings of property, and various alleged 9^th Amendment protections, including the freedom to travel, right to privacy, etc.

NCLA has made some of the same arguments in challenges to a municipality’s use of automated license plate readers,  to an executive order in New Jersey that allows residential tenants to have their security deposits credited against the amount of rent that they owe, and to Massachusetts’ governor’s powers to adopt emergency measures to combat COVID-19.

In the Rivers End Outfitters matter, NCLA has claimed that

“the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the respective agency heads in their official capacities…are mandating an unlawful and unconstitutional 24-hour GPS surveillance regime without a warrant.

“…The rule, which goes into effect on January 5, 2021, affirms that owners or operators of charter vessels or for-hire vessels in the Gulf of Mexico must submit an electronic fishing report using NMFS-approved hardware and software with GPS location capabilities that ‘at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS.’  This rule also requires that captains pay for the vessel equivalent of an ankle bracelet.  NCLA contends that these agencies cannot issue a regulation that would monitor law-abiding captains more closely than many prisoners on parole.

“…NCLA argues that warrantless access to GPS information of a person’s locations and movements in blatantly unconstitutional.  It amounts to an unreasonable search violating the Fourth Amendment and violates Ninth Amendment rights, including the right to privacy, freedom of movement, free enterprise, freedom from unreasonable government interference, and the right to travel.  Since plaintiffs are the sole owners of the data produced by their newly purchased devices, the seizure of it without any cause also violates the Due Process Clause of the Fifth Amendment.”

Predicting what a court is going to do is always a fool’s errand, as judges can unexpectedly favor what might appear, to others, as a fruitless argument, and reject what seems to be settled law.  But established precedent seems to militate against the plaintiffs in Rivers End Outfitters succeeding.

The strongest precedent cited in support of the plaintiffs’ arguments deals with a private citizen being wrongly subject to 24-hour clandestine GPS surveillance in the ordinary course of that person’s life, not with a highly regulated industry such as for-hire fishing being required to knowingly provide information as a condition of being granted the permit required to fish.

Looked at from the perspective of a regulated fisherman, the arguments in Rivers End Outfitters look a lot weaker.

Goethels v. Pritzker, decided by the U.S. District Court for the District of New Hampshire, is instructive in that regard.  Although Goethels is only a trial-level decision, and slightly off-point because it deals with a regulation requiring on-board observers and not VMS, it cites higher-court cases that summarizes the law of monitoring vessels very well, in a way that should bear very directly on the Rivers End Outfitters decision.  

In deciding that a regulation requiring a New England groundfishing vessel to carry observers was valid, the court noted that

“Plaintiffs first argue that the presence of at-sea monitors amounts to an unconstitutional warrantless search.  The court disagrees.  Even assuming that ASM presence constitutes a search—an assumption the Secretary [of Commerce] accepts only for purposes of argument—warantless administrative searches of closely regulated industries are valid.  The test for determining whether an industry is ‘closely regulated’ is whether the regulatory presence is ‘so pervasive that business owners cannot help but know that their commercial properties may be periodically inspected for specific purposes.  So it is here.

“Given the closely regulated nature of commercial fishing, the ASM ‘searches’ are reasonable within the meaning of the Fourth Amendment if the government has a substantial interest in regulating the business, the monitors’ presence furthers this interest, and the regulations offer notice to the regulated.  Here, all three criteria are met.  Plaintiffs do not seriously dispute the government’s interest—as expressed by the [Magnuson-Stevens Fishery Conservation and Management Act]—in protecting fishery resources.  Nor do they dispute that ASMs further that interest.  And finally, the explicit provisions of [Magnuson-Stevens] give fishermen notice ‘that the government will conduct periodic inspections for specific purposes.’  [citations omitted]”

What can be said of on-board monitors can be said of a VMS; if anything, the electronic VMS is far less obtrusive than a person physically inspecting and recording one’s catch in real time (the only difference is that the plaintiffs in Rivers End Outfitters did not agree that the VMS materially furthered the government’s interests in well-managed fisheries).  Thus, if one had to handicap the plaintiffs’ odds of prevailing in the present case, it would be difficult to give them a better chance than the plaintiff in Goethels.

Still, it’s understandable why NCLA is making such arguments.  Its sole purpose is to challenge and try to weaken the “administrative state,” and given how deeply the authority of administrative agencies is rooted in U.S. jurisprudence, the only possible way it can achieve its goal is to bet on the long shots, and hope one eventually beats the odds.

But it’s harder to understand why the plaintiffs would be so willing to bet on what is almost certainly going to be a losing horse.

Unless, of course, they have something that they want to hide.  If that was the case--and this is pure specualtion, not a claim of fact--then backing a long shot would give them a better chance to do that than taking no shot at all.

 

"RECREATIONAL REFORM" AT THE MID-ATLANTIC COUNCIL

 

Since March 2019, the Mid-Atlantic Fishery Management Council (Council), in conjunction with the Atlantic States Marine Fisheries Commission’s (ASMFC) Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board) have been quietly working on changing the way that some recreational fisheries are managed.

The reform initiative was initially intended to address only the recreational black sea bass fishery, but it quickly expanded to include summer flounder and scup as well. At its August meeting, the Management Board also considered including bluefish, and invited the ASMFC’s Bluefish Management Board (Bluefish Board) to collaborate on the matter.

In order to identify issues that should be considered in any reform process, the Council and Management Board created a Recreational Management Reform Steering Committee (Committee), composed of representatives from both such bodies, along with staff from the National Marine Fisheries Service’s Greater Atlantic Regional Fisheries Office, which has spent most of the past eighteen months contemplating what recreational reform might look like. It appears that the Committee may be nearing the end of its deliberations, and that the Council, Management Board and, probably, the Bluefish Board will soon start putting a draft management document together.

Will such recreational reform improve the fisheries management process?

The vision

The Committee has agreed on a vision intended to guide the development of any reform document, which it presents as

 

·         Stability in recreational management measures (bag/size/season)

·         Flexibility in the management process

·         Access aligned with availability/stock status

None of those things, on their faces, are unreasonable proposals, but all could be problematic if improperly implemented.

Regulatory stability, for example, can benefit both anglers and the angling industry. If fishermen know what the regulations will be in the upcoming year, they can easily make travel plans for the next fishing season. Tackle shops have a better idea of how much inventory to order. Charter and party boats can better plan their seasons and begin booking trips, while fishing clubs, local chambers of commerce and other organizations can set tournament dates far enough in advance to better assure participation.

On the other hand, prioritizing stability over the health of fish stocks can lead to managers taking no action to address problems with a stock until such problems become severe. The ASMFC’s failure to intervene when the striped bass stock began to decline, allowing the stock to become overfished, demonstrates the consequences of management inaction.

Because regulations now frequently change from year to year, based on estimates of recreational landings, changes in fish abundance and similar factors, neither anglers nor angling-related businesses regularly enjoy the benefits that stability can bring. Thus, the Committee suggested some objectives that might promote recreational stability and its ensuing benefits, as well as advance the other aspects of the Committee’s vision.

 

The objectives

The first such objective was to “Better incorporate uncertainty in the [Marine Recreational Information Program (MRIP)] data into the management process.” That’s a reasonable goal, as MRIP data does vary from year to year, particularly when used at a state, seasonal, or sector level. Sometimes, particularly when used at such levels, MRIP data will produce an estimate that seems very improbable, and can be viewed as an outlier that is unlikely to reflect actual landings levels. The Committee suggests developing a process that could use recognized statistical methods to “smooth” estimates that seemed incongruously high or low.

Such an approach would almost certainly enhance the overall quality of MRIP data.

Another possible approach would recognize that some uncertainty always surrounds recreational catch, landings, and effort data, which MRIP expresses as a “percent standard error” (PSE). The Committee suggested that if the recreational harvest limit for any given year falls within the PSE for the previous year’s landings, then the previous year’s recreational regulations could remain in force.

 

That, too, is a statistically justifiable approach to regulatory stability.

And because fisheries managers must try to set the upcoming year’s regulations before the current year has ended, making it impossible to fully know the magnitude of the current year’s landings, the Committee suggested that managers give greater consideration to when the use of preliminary landings estimates, usually based on landings for the first eight months of the year, are appropriate, and whether they should be supplemented by an additional information.

That is a question that fisheries managers have been wrestling with for a while, and certainly deserves further thought.

The Committee’s second objective was to “Develop guidelines for maintaining status quo measures.”

 

Such objective obviously supports the desire for regulatory stability. Currently, management measures are generally set by comparing landings estimates with the recreational harvest limit (RHL); if the landings are above the RHL, more restrictive measures are imposed, but if the landings are below the RHL, regulations are often relaxed.

The Committee suggested a more nuanced approach, that would consider not only the relationship between landings and the RHL, but also the biomass of the stock, fishing mortality levels, and the recruitment of new fish into the population when deciding whether regulations ought to be changed.

Such an approach could certainly provide benefits. As the Committee noted, “poor or declining stock status indicators could require changes when status quo would otherwise be preferred.” However, managers could also argue for the opposite effect, using supposedly positive information to argue for status quo regulations when landings significantly exceeded the RHL.

 

There is also the question of who would be empowered to interpret the biological data. Under the current system, prescribed in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) the Council maintains a Scientific and Statistical Committee, composed of trained scientists, who set the acceptable biological catch (ABC), from which the RHL is derived. If the Council, Management Board and/or Bluefish Board base regulations on MRIP estimates and the RHL, they’re standing on a solid statistical and scientific base.

 

However, if the people sitting on those management bodies, the majority of whom are not trained scientists, are permitted to make their own interpretation of the scientific data, and use that interpretation to decide whether maintaining status quo regulations is justified, even if such regulations caused recreational landings to significantly exceed the RHL, the management process will be skating dangerously close to managing by laypersons’ opinions, rather than by scientific advice.

 

That would be a bad direction to take, although at the Council, the situation couldn’t grow too dire, for the mandates of Magnuson-Stevens would still apply; the Council would not be allowed to adopt or maintain any management measure that is likely to cause overfishing. But no such constraint would bind the ASMFC.

Thus, this objective, if implemented badly, could increase the risk to fish stocks.

The Committee’s third objective, “Develop process for setting multi-year recreational management measures,” also incorporates a significant level of risk, as it calls for “a commitment to making no changes in the interim year,” even if there is “new data that would otherwise allow for liberalization or require restrictions.”

While foregoing liberalization would do no harm to the stock, taking no action if new information indicated that the stock is declining or experiencing excessive fishing mortality could cause further damage to the resource. While this objective, like the one described above, would be constrained at the Council level by the language of Magnuson-Stevens, the reluctance to take action in the face of adverse data is still worrying.

If the need to maintain stable regulations over a period of years is, in fact, so compelling, managers could better assure stability by setting relatively conservative RHLs that have a high probability of preventing overfishing, so that if such RHLs were exceeded, overfishing still would not occur. But when one considers the Committee’s vision also calls for “accessibility,” that is not likely to be a palatable approach.

The Committee’s final two objectives, “Consider improvements in the process used to make changes to state and federal recreational management measures” and “Consider making recommendations for federal waters recreational measures earlier in the year,” were not as fully fleshed out as the other three, and probably have lesser implications for the health of fish stocks.

Some of the topics associated with the latter objective, improving the process of changing regulations, including establishing guidelines for using MRIP data at a state, seasonal, or sector level, when such data is significantly less accurate than it is when used to derive coastwide estimates, certainly deserve a deeper look. On the other hand, suggestions that managers consider data other than that supplied by MRIP as part of the regulatory process could well increase management uncertainty, unless such data was derived using a statistically valid methodology that had successfully passed through the peer review process.

 

The final option, implementing federal regulatory changes earlier in the year, perhaps in August or October rather than in December, would bring both costs and benefits.

The federal rulemaking process imposes strict timelines for the rulemaking process; although the fishing season for summer flounder, scup, black sea bass, and bluefish begins on January 1, and anglers usually presume that any new regulations are in effect by that time, that is usually not the case. Because of the requirements established by the federal Administrative Procedures Act, such measures don’t typically become enforceable until April or May. Allowing the Council to adopt such measures as early as August would allow regulations to be in place at or near the start of the fishing year.

 

Early adoption of regulations would also allow businesses more lead time to order merchandise, book trips, and prepare better business plans for the upcoming year.

On the other hand, such early adoption would mean that regulations would, at best, be based on recreational catch, effort and landings estimates through June 30, and provide managers with no idea of what was caught in July and August, when most fishing activity for the species in question occurs. That would add considerable uncertainty to the management process.

Thus, the vision and objectives established by the Committee are a mixture of good and potentially problematic points. Because the Council could not override the express provisions of Magnuson-Stevens with respect to overfishing, rebuilding overfished stocks, establishing annual catch limits, and employing the best science available, the downside of such recommendations is limited. At the same time, the potential improvements to the management system could be very real.

Putting people first, fish last

The recreational reform process becomes problematic when suggestions and discussions that focus on the issue of “accessibility” which, for practical purposes, means allowing anglers to harvest more fish than they currently may.

 

The worst of those suggestions harkens back to the debate over the so-called “Modern Fish Act,” and the use of “alternative management measures” rather than poundage-based annual catch limits to manage recreational landings. The same organizations that spearheaded the fight for the Modern Fish Act are now proposing a “control rule” to replace management measures keyed to expected landings and the RHL.

 

Such proposed control rule would create a series of “steps” corresponding to levels of stock abundance. Management measures, including size limits, bag limits, and seasons, would be preset, supposedly to correspond to the status of the stock, becoming more restrictive as biomass approached, and then dropped below, the biomass threshold. No annual catch limit would apply.

The argument made in support of that approach makes little sense, and seems mired in circular logic. The organizations aver that “access (allocation) can be defined for the recreational sector as a combination of size limits, bag limits and seasons, instead of a pound-based quota. This is directly relatable to commercial quota in pounds because access is less or more restrictive based on stock conditions through changes to quota (commercial allocation) and management measures (recreational allocation).”

The argument that the proposed control rule is “directly relatable to commercial quota in pounds,” never addresses why a recreational quota in pounds isn’t equally, or even more, relatable to the commercial quota. Instead, while commercial fishermen are subject to accountability measures, usually in the form of pound-for-pound paybacks in a future year, under the proposed control rule, anglers would apparently face no consequences for harvesting more fish than the stocks can safely sustain.

The justification for that seems to be that “Defining access in pounds does not work for the recreational sector because recreational anglers have no control over the harvest estimates that are generated when they follow established management measures. Choosing to reallocate based on revisions to catch data has the potential to result in continuous allocation changes…”

There was more written, but that’s probably enough to demonstrate what’s happening here, and none of it makes too much sense. What does “recreational anglers have no control over the harvest estimates…when they follow established management measures” even mean?

Recreational anglers do have control over what they harvest, which is what the harvest estimates measure, and the entire point of the management process is to revise management measures if they allow fishermen, including recreational fishermen, to land too many fish each year. The control rule proponents are trying to present those facts in a way that somehow makes it seem wrong to rein in recreational overharvest.

And there are no “continuous allocation changes.” Allocations are set in the various management plans, which currently allocate 40 percent of the summer flounder, 21 percent of the scup, and 51 percent of the black sea bass to the recreational sector. That doesn’t change from year to year. Those quotas are based on an overall annual catch limit intended to prevent overfishing, which catch limit is then divided between the commercial and recreational sectors. If both sectors stay within their quotas, and their respective allocations, the stock should remain healthy in the long term.

 

The problem is that anglers often don’t stay within their allocations, but instead exceed their RHLs by a significant amount. Regulations must then be changed in order to reduce recreational landings, hopefully to or below the RHL.

That has nothing to do with changing the allocation. It has everything to do with trying to keep anglers from exceeding their quota, and from potentially threatening the health of the stock. The control rule’s proponents are thus trying to perpetuate recreational overharvest, avoid recreational accountability, and place short-term landings, and any potential economic benefits that may ensure, ahead of the health of the stock.

Unfortunately, the proposal is still a part of the recreational reform debate. It was discussed in some detail at the Management Board’s August meeting, when we learned that the standard for regulations at the highest level of stock abundance would be the “most liberal set of measures preferred by anglers when biomass is high,” while the standard for an overfished stock would be the “most restrictive measures that could be tolerated without major loss of business.”

Management measures adopted because they are “preferred by anglers” or “tolerated without major loss of business,” rather than management measures directly tied to the needs of fish stocks, would represent a major step backward for federal fishery management.

Fortunately, the worst of their impacts would, again, probably be blocked by the clear language of Magnuson-Stevens. Yet we can still expect to see the national angling organizations, and the angling industry, pushing hard for their adoption.

That demonstrates just why maintaining a strong Magnuson-Stevens, and making the law even stronger in important respects, is necessary if we intend to keep the nation’s fish stocks abundant and healthy well into the future.

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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/