THE STAGE IS SET FOR FEDERAL FORAGE FISH LEGISLATION

 

All fish are not created equal.

Some are large, swift pelagic predators, that traverse entire ocean basins over the course of their lives.  Others, smaller but still of substantial size, hunt the cloudy and fertile waters of estuaries and barrier lagoons, or the clear seas that wash over coral reefs and run in the channels between tropical flats.  Still other, smaller fish, the marine equivalent of foxes and martens and weasels, seek their prey in the shallows, the surf, and in open water, some using stealth, some using speed to hunt down their food.

And then there are other fish that overwhelm all the others in sheer abundance, small fish that move through the water in vast shimmering shoals, feeding on plankton and tiny free-swimming creatures, and fed upon, in turn, by everything else that lives in the sea.  They are the forage fish, the small fish that, by dint of their numbers, weave the sea’s food web into a coherent whole.

Forage fishes’ importance to ocean ecosystems was long ignored by fisheries managers.  Those that also supported important commercial fisheries, such as Atlantic herring, Atlantic mackerel, northern anchovy, Pacific sardine and, more recently, Atlantic menhaden, have been subject to fishery management plans, but such plans generally addressed forage fish only in a single-species, single-fishery context.  That is, the management plans attempted to keep landings at or below maximum sustainable yield, so that the stock could remain healthy enough to maintain landings levels over the long term.

However, such management plans were always focused on harvest, and on leaving just enough forage fish in the sea to maintain a sustainable harvest.  They took no account of forage fishes’ roles in the ecosystem, nor of the needs of a host of marine predators that might range in size from smaller Spanish mackerel to humpback whales.  And for those forage species that didn’t support significant commercial fisheries, there was generally no protections offered at all.

Slowly, that began to change.  Just a few years ago, both the Pacific Fishery Management Council and the Mid-Atlantic Fishery Management Council adopted fishery management measures designed to protect previously unmanaged stocks of forage fish.

 Just last August, the Atlantic Marine Fisheries Commission’s Atlantic Menhaden Management Board, in a unanimous vote, decided to adopt ecosystem reference points that, for the first time, would limit menhaden landings to a level that would leave enough fish in the water to support the needs of coastal ecosystems, and not just enough to support the long-term profits of the menhaden industry.  And if the ASMFC, just two months later, walked back that decision a bit by setting 2021/22 harvest at levels likely to exceed the ecosystem-based fishing mortality target, they’ve still moved the ball forward a bit, reducing landings by 10 percent, which is a better than average performance for the ASMFC.

But now, the stars may finally be aligning in a way that will see federal forage fish legislation passed in the 117^th Congress.

Some such legislation has already been introduced in the 116^th.

On April 10, 2019, Rep. Debbie Dingell (D-MI) introduced H.R. 2236, the Forage Fish Conservation Act.  That bill would have, among other things, required the Scientific and Statistical Committee of each regional fishery management council to provide such council with ongoing scientific advice on

“maintaining a sufficient abundance, diversity, and localized distribution of forage fish populations to support their role in marine ecosystems.”

H.R. 2236 would also have required each regional fishery management council to

“develop a list of unmanaged forage fish occurring in the area under its authority and prohibit the development of any new directed forage fish fishery until the Council has considered the best scientific information available and evaluated the potential impacts of forage fish harvest on existing fisheries, fishing communities, and the marine ecosystem; determined whether conservation and management of the forage fish fishery is needed; if a determination is made that conservation and management is needed, prepared and submitted to the Secretary [of Commerce] a fishery management plan or amendment…; and received final, approved regulations from the Secretary…  [internal numbering deleted]”

On December 17, 2020, Sen. Richard Blumenthal (D-CT) introduced a Senate version of the Forage Fish Conservation Act, which is substantially similar to H.R. 2236.

With the 116^th Congress effectively over, neither bill is going anywhere this year.  But the fact that Sen. Blumenthal elected to introduce a forage fish bill so late in the session is a clear indication that he intends to champion forage fishes’ cause in the 117^th Congress, meaning that forage fish legislation will almost certainly get a thorough hearing, and may well achieve passage within the next two years.

An even better sign that forage fish will be on the next Congress’ agenda is the inclusion of a forage fish section, that reads very similarly to H.R. 2236, in Rep. Jared Huffman’s (D-CA) recently-released discussion draft for reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act.  When the Chair of the relevant House subcommittee includes forage fish language in his Magnuson-Stevens reauthorization bill, it’s pretty certain that such language is being seriously considered.

But passing forage fish legislation will not be a slam dunk.

One of the biggest issues will be defining just what a forage fish is.  As everyone knows, big fish eat smaller fish, and even fairly good-sized fish will probably be eaten by something larger.  To a mako shark, bluefish and skipjack tuna are forage.  Blue marlin view yellowfin tuna the same way.  And anyone who has spent enough time fishing for bluefish tuna in the northeast knows that white sharks hang around the bluefin schools, and think nothing of grabbing a 200- or 300-pound tuna attached to an angler’s line.

Both H.R. 2236 and Sen. Blumenthal’s bill try to bring some rationality to the discussion by noting that

“While most species function as prey of others at some life stage, especially when small and young, forage fish maintain this important trophic role throughout their life.”

The bills then define “forage fish” as

“any fish that, throughout its life cycle, is at a low trophic level; contributes significantly to the diets of other fish, marine mammals or birds; and serves as a conduit for energy transfer to a higher trophic level; or any other fish specified as a forage fish for purposes of this paragraph in a fishery management plan or amendment that is transmitted by a Council and approved by the Secretary…”

Even though that definition provides some limits on what may be deemed to be a forage fish, and even though the bills further define “low trophic level” by saying

“The term ‘low trophic level’ means a position in the marine food web in which the fish generally consume plankton,”

the idea of forage fish management makes some fishermen nervous, particularly in the Pacific Northwest, where pollock is considered an important forage species for the endangered Steller sea lion (even though some researchers argue that pollock provide so little nutrition that eating large quantities of them will do the sea lions more harm than good), but also supports the largest commercial fishery, gauged by the weight and value of the processed product, in the United States.

That being the case, it’s easy to understand why fishermen wouldn’t want Pacific pollock to be deemed a “forage fish” and managed on the basis of how many can be eaten by Steller sea lions, and rather than how many can be turned into pre-frozen fish sandwiches, fish sticks and such.

The bills try to get around the issue by saying that

“Forage fish are generally small to intermediate-sized species, occurring in schools or dense aggregations, and function as a main pathway for energy to flow from phyto- and zooplankton to higher trophic level predators such as tuna, Alaska pollock, and other wildlife, in marine ecosystems, [emphasis added]”

thus making it clear that Alaska pollock feed on forage fish, and are not forage fish themselves.

Whether such language will be enough to make the pollock fishermen happy remains to be seen.

And pollock fishermen are only one of the industries likely to oppose any forage fish bill.  

On the East Coast, there are companies that have invested millions of dollars in the boats and gear needed to engage in high-volume, low value fisheries for species such as Atlantic herring, which saw over 100 million pounds landed in 2017, at a price of roughly 25 cents per pound.  It’s not likely that participants in that fishery, or in fisheries for other high volume/low value species such as Atlantic mackerel (roughly 15 million pounds at about the same price) will stand by quietly while a portion of what had been their catch is allocated away from the commercial fishery and instead used to support populations of bluefin tuna, striped bass, and humpback whales.

Similar pushback will undoubtedly come from the Pacific coast, where sardines, anchovies, herring, and mackerel support other large-scale fisheries.

Forage fish legislation won’t be passed without a fight.  

Yet it is a fight worth having, for if forage fish—the animals that pass energy between the highest and lowest trophic level species, and so knit the food web together—are managed only for harvest, and not for their ecosystem values as well, the resultant risk to large predators, and the fisheries that depend upon them, could be very real.

 

THE FEAST OF THE SEVEN (MOSTLY DEPLETED) FISHES

People who aren’t fishermen or divers often spend little time thinking about declining fish populations.  

They might get concerned about the fate of sharks, swordfish or tuna—the sort of “charismatic megafauna” that gets some attention in the mainstream news and often sits front and center in the glossy brochures that accompany conservation groups’ fundraising letters—but outside of that, too many people feel completely disconnected from the ocean, and are unaware of how the health of fish stocks impact their daily lives.

Yet, in one way or another, our lives remain connected to the health of the sea.  So on this Christmas Eve, I thought that it might be appropriate to look at how the fate of fish populations affect people’s lives by looking at how it impacts a holiday tradition:  the Feast of the Seven Fishes.

I come from a Polish Catholic family, and while we always adhered to the traditional injunction against eating meat on Christmas Eve, our fish consumption on that night was limited to creamed, pickled herring to kick off the meal, and only one entrée, which was usually flounder and was always fried (although given the collapse of our badly mismanaged winter flounder stocks, this year’s entrée will be some of the lake trout that my wife and I caught in upstate New York last October).

But for my Italian-American friends, Christmas Eve was a time for a seafood feast.  Some of them stuck to the semi-traditional seven kinds of fish, served in different ways.  Some went far beyond that, buying a dozen or more different kinds, ranging from the same spearing (more properly, “tidewater silversides”) that we used as bait, dipped whole in batter and fried, to sea scallops and lobster.

But there were a few seafood items were served by just about every family that I knew:  Whiting, eels, clams, calamari (squid), baccala (cod), scungilli (whelks), and smelt.  

Half a century later, most of those fish and mollusks are not doing well.

Squid are an exception.  

On the East Coast, the stock of longfin squid, also referred to as “Loligo” (although they’ve now been reclassified as part of the genus Doryteuthis) or “winter” squid, seems to be doing OK.  It’s not overfished, although scientists lack the data they need to determine whether overfishing might be taking place.  The fate of shortfin squid, also known as “Ilex” or “summer” squid, is less certain; while fishery managers don’t believe that overfishing is occurring, they don’t have enough information about the size of the stock to know whether it might be overfished.

Still, no one should feel any guilt about enjoying their calamari.

And maybe no one should be feeling guilt about eating clams, either, because the littlenecks (quahogs, or Mercenaria mercenaria) used in the Clams Casino and Zuppa di Pesce were probably farmed, or at least artificially seeded, although some still come from natural populations.  But in most places, marketable natural populations of quahogs were fished down long ago. 

As a rule, current abundance is inversely related to water quality.  Waters, or bay sediments, that contain too many pollutants for the clams to be safely consumed by people often host large populations of clams; quahogs frequently abound near sewer plant outflows and in murky urban bays.  Some are harvested from such places, and either used to produce “seed clams” that can then be stocked in cleaner waters, others are moved to unpolluted bottom leased by a shellfish company, which will then give the clams time to flush the sewage or other contaminants out of their bodies before selling them as food.

But as far as natural populations go, we’ve gone a long way downhill since the 1970s, when more than half the clams eaten in the United States came from my local waters in Long Island’s Great South Bay.  

The bay’s overall clam population remains depressed, and hopes for restoration lie in the creation of private sanctuaries, such as one created by The Nature Conservancy, where clamming is prohibited and clams spawned there can, in time, reseed the bay bottom.  Yet even those efforts are hampered by the harmful algae bloom known as “brown tide,” which can kill clam spat as well as adult clams, and other water quality issues.

The same sort of declines have been seen in many other historically productive clamming grounds, but the artificial seeding and aquaculture operations have at least kept some clams alive in the bays.

Many fish are having a much harder time.

Although my family didn’t celebrate the Feast of the Seven Fishes, I did spend some time helping friends to gather the fish that they needed.  I still remember one morning when I accompanied one of them to New York’s Fulton Fish Market to buy some eels and whiting.

It was the late 1970s.  The market was still located at the end of Fulton Street in Manhattan, and it was still what federal attorneys referred to as a “Racketeer Influenced and Corrupt Organization.”  When we arrived, we parked our car on the street right outside the market, and gave $5 to the guy who came right over to collect it (yes, it was a public street, not a private lot, but if you paid the $5 the folks who sold you the fish could stack it up next to your vehicle and no one would touch it, while if you didn’t pay, the fish would likely be gone, along with your tires and wheels and probably your windshield).  Then we went into the market to buy some nice whiting, along with some eels that were kept, alive, in a truck-mounted tank.  Our mission completed, we purchased a couple of egg sandwiches at a run-down bar/greasy spoon (fried by someone wearing a slightly grimy, sleeveless T-shirt that did nothing to hide the .45 that rode in a shoulder holster beneath his left arm), got into the car, and arrived back in Connecticut—and a very different world—by sunrise.

Whiting and eels were cheap and abundant in those days.  

During the winter, party boats sailed for whiting 24/7, and anglers caught them from piers that lined the New York and New Jersey shorelines.  Eels were everywhere, too.  In the warmer months—say, from mid-April through early December—it was often hard not to catch them while fishing in the bays and marshes for flounder and other fish.  Once the bays froze over, fishermen ventured out on the ice and probed the bay bottoms with “winter spears” that squeezed eels between their tines and snagged them on U-shaped points as the spears were pulled out of the sediment.

These days, things have changed.  The Feds went after the Fulton market, which later moved to The Bronx, and eels are in trouble.  

The Atlantic States Marine Fisheries Commission lists eels as “depleted,” and notes that commercial landings have fallen from anywhere between 2.5 and 3.6 million pounds in the 1970s and early 1980s to about 780,000 pounds in 2018.  It also notes that

“The stock is at or near historically low levels due to a combination of historical overfishing, habitat loss, food web alterations, predation, [dam] turbine mortality, environmental changes, toxins and contaminants, and disease,”

and that the U.S. Fish and Wildlife Service performed a status review to determine whether the American eel should be listed under the Endangered Species Act, before finally deciding that a listing was not needed yet.

Even though no listing was justified, eels are certainly one of the Seven Fishes that is not doing well.

Whiting (correctly called “silver hake”), on the other hand, are neither overfished nor subject to overfishing.  However, the fish have retreated from inshore waters; not only is it impossible to catch one from shore, but the swarms of fish that once supported an outstanding party boat fishery in New York Bight have disappeared.  

In 1981, the first year for which even semi-reliable data is available, anglers in the Mid-Atlantic region (New York through North Carolina) caught a little under 750,000 whiting—and the fishery was already in decline.  By 2019, that catch had fallen to a supposed 500 or so fish, but so few were caught, and encountered by National Marine Fisheries Service surveyors, that such estimate has no statistical validity; given the margin of error, one whiting or one thousand—which nonetheless indicates a shocking decline—are equally valid estimates.

So yes, the whiting stock might still be able to produce maximum sustainable yield on a continuing basis, but it’s not nearly what it was four decades ago.

After whiting, it’s all bad news.

Cod is the whiting’s larger, better known, and far more valuable cousin.  It is in deep trouble in the Northeast.  

For centuries, New England’s waters fed much of the western world, with vessels sailing from Spain, France, England and other European nations to fish there, and carry vast quantities of dried, salted cod--baccala--back to the Old World.  In time, France and England spawned colonies on the North American shore, largely to harvest the cod and other natural resources of what was, despite more than 10,000 years of native occupation, a largely unexploited land.

It’s not an exaggeration to say that cod played a large role in the founding of New England.  A wooden “sacred cod” still hangs in the Massachusetts State House to memorialize the fishery’s importance.  New England still enjoyed large and lucrative cod fisheries into the latter half of the 20^th Century, but those fisheries began collapsing by century’s end. 

Now, they're just about gone.  A recent operational stock assessment shows the Gulf of Maine stock of cod to be both overfished and subject to overfishing, although biomass seems to be increasing as new fish recruit into the population.  The other cod stock, Georges Bank, is also in bad condition, although the current stock assessment model has not established biological reference points that can be used to make a formal declaration of its condition.  Nonetheless, the operational assessment says that such stock is

“recommended to be overfished due to poor stock condition, while recommended overfishing status is unknown.”

Thus, anyone serving cod as one of their Seven Fishes this year probably isn’t providing their guests with the traditional New England staple.  Instead, they’re either serving  Atlantic cod imported from Iceland, where the fish remains abundant and, historically, has been much better managed, or the closely related but far less valued Pacific cod, a fish that does not seem to be experiencing population problems.

But at least Atlantic cod are managed, if not particularly well.  Here in New York, harvest of scungilli—that is, channeled and knobbed whelks, a large marine snail—is subject to almost no regulation.  And the whelk population is suffering as a result.

For many years, such whelks didn’t represent a major fishery.  Lobstermen and crabbers and oystermen took some as bycatch, and there were other fishermen who targeted them when fishing for other species was slow.  But both demand and prices tended to be low for most of the year.  Zuppa di Pesce, whether served at a local seafood restaurant or prepared at home, was generally their higher and best use.  

That changed in recent years, as growing demand—and increasing prices—in the Asian export market, combined with a decline in the availability of other species, such as lobster, have caused whelk landings to spike.

Spiking landings and lax regulation create problems for an animal that is easy to catch and doesn’t mature until it is 9 or 10 years old.  Regional whelk populations have become depleted.  In response, a number of states, including Massachusetts, Rhode Island, New Jersey, Delaware, Maryland, and Virginia, have adopted minimum size regulations intended to allow at least 50 percent of the females to reach maturity before they can be retained.  New York is attempting to adopt similar regulations, and has been trying to do so since 2013, but has not yet overcome the strong resistance of its commercial fishermen, who are focusing on such regulations’ short-term impacts, and ignoring their long-term benefits for the fishery.

Unless that changes, and whelk are managed for long-term abundance, New Yorkers, at least, who celebrate the Feast of the Seven Fishes may soon be importing their scungilli from elsewhere.

Which brings us, finally, to the small and generally unappreciated rainbow smelt.  When I was a boy, they swarmed into Connecticut estuaries beginning in mid-October, stuck around all winter, and ascended coastal streams to spawn in early spring.  They supported a very quirky, and very enjoyable, recreational fishery back then, but in the late 1960s, they disappeared.

That disappearance inspired the very first essay that I wrote for this blog, “When Fisheries Die,” nearly seven years ago, in January 2014. 

It’s not clear why the collapse happened.  Pollution may have played a role.  Their upstream spawning grounds may have been degraded.  Climate change could have made waters too warm, or maybe smelt, like so many other anadromous fish, fell victims to dams that blocked their paths upstream, and prevented them from spawning at all.  Whatever the reason, smelt disappeared from southern New England, and seem to be declining up north as well.  Maine managed to host decent runs for years, but just this morning, I was reading an Internet forum where one Maine poster asked

“[D]oes anyone have any info on this year’s smelt run.  Last couple of years were sure a disappointment as far as numb[ers]…”

He received no positive answers, so maybe Maine isn’t seeing many smelt any more, either.  It’s been a while since I’ve seen smelt in a store, so I’m not even sure that it’s possible to serve them at a Feast of the Seven Fishes anymore.

And that’s too bad.  It’s unfortunate that not just smelt, but so many of the other fish that have been a traditional part of Christmas Even dinners are in decline.  

Certainly, they can be replaced by other things, but somehow a Feast made up of imported tilapia, farmed Arctic char, farmed shrimp, farmed branzino and some of the infamous Vietnamese catfish, perhaps accompanied by some honest local squid and an aquacultured shellfish or two, doesn’t sound anywhere near as appealing as the Christmas Eve dinners that my friends talked about years ago.

Traditions matter, and if people care enough, they don’t have to settle for a Christmas Eve marred by the antibiotic- and hormone-laced products of coastal fish farms. 

If they demand that all United States fisheries, and not just those governed by the Magnuson-Stevens Fishery Conservation and Management Act, are sustainably managed, that overfishing of all species ends, and that all overfished stocks are promptly rebuilt, then they might be able to enjoy a Feast of the Seven (Wild and Well-managed) Fishes once again.

 

 

 

RECREATIONAL FISHERIES MANAGEMENT: THE (INTENTIONALLY?) FORGOTTEN TOOL

 

Saltwater fisheries are never easy to manage. 

Even in the case of the most studied species, there are always some questions about the size of the population, the number of new fish being recruited into the population to replace those that are removed, the magnitude and duration of typical, temporary swings in abundance and the longer-term impacts of a changing climate on the marine environment. 

Most of those issues fall under the general category of “scientific uncertainty,” being matters that are generally connected to the biology of the fish and the productivity of marine habitats.  Although fisheries scientists may not be able to quantify them exactly, they recognize that such uncertainties exist, and try to quantify and account for them when they set the acceptable biological catch (ABC) and annual catch limit (ACL) for each managed species.

Out of all saltwater fisheries, recreational fisheries are particularly hard to manage because they are affected by a different set of unknowns.  While commercial landings are reported in near real time, and largely ground-truthed by the records of the fish docks and wholesalers that purchase the fishermen’s product, recreational landings can only be estimated through the Marine Recreational Information Program (MRIP) which, although reasonably accurate when estimates are used on a regional or coastwide basis, is prone to provide less precise results when data is restricted to a limited time or area, or relates to a species of fish that is only infrequently caught by anglers.

Since the effectiveness of recreational fishing regulations depends on the accuracy of the data that they’re based on, MRIP’s estimates add a degree of uncertainty to recreational fisheries management that doesn’t arise in commercial fisheries. 

Even more uncertainty is added because such regulations assume that future angler behavior will be similar to what it was in the past.  That is a very dubious assumption.  Weather, the relative availability of the regulated species compared to other fish, fuel prices, and even COVID-19, can and do impact how many people go fishing each season, how many trips those anglers make, and what they choose to fish for.

Add to that the unknown number of recreational fishermen who don’t abide by the regulations, and instead take home undersized, over-limit, or out-of-season fish, and even illegally sell their supposedly “recreationally-caught” striped bass, bluefin tuna, etc. to unethical shops and restaurants, and uncertainty grows again.

All of those things fall under the category of “management uncertainty,” which is supposedly one of the things that fisheries managers are supposed to consider when drafting each year’s regulations.  However, unlike scientific uncertainty, management uncertainty is rarely part of the conversation when such rules are established.

That doesn’t appear to be what the National Marine Fisheries Service intended when it published Guidelines for regulations that would comply with National Standard 1, which requires managers to prevent overfishing and constrain harvest to optimum yield, in the Federal Register.

Those Guidelines note that

“Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors).  The sources of management uncertainty could include:  Late catch reporting; misreporting; underreporting of catches; lack of sufficient inseason management, including inseason closure authority; or other factors.”

The Guidelines then go on to say that

“[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that the ACL is not exceeded.  An [annual catch target] is an amount of annual catch of a stock or stock complex that is the management target of a fishery, and accounts for management uncertainty in controlling the catch at or below the ACL.”

They then note that, when setting annual catch limits,

“If an Annual Catch Target (ACT), or functional equivalent, is not used [to account for management uncertainty], management uncertainty should be accounted for in the ACL.”

It all sounds good and logical in theory, and would seemingly make a lot of things simpler in practice. 

For example, the Mid-Atlantic Fishery Management Council is now looking at what it calls a “recreational reform” initiative, which is intended to reduce or eliminate some chronic issues in recreational fishery management, including how to address the known imprecision (“percent standard error’) in MRIP estimates, how to deal with “outlier” estimates in the recreational data which almost certainly are inaccurate reflections of catch and landings, whether and how to best project annual landings from preliminary estimates, and other, similar issues related to recreational fisheries data and resulting regulations. 

They’re important issues.  When catch and landings data shifts from year to year, even if those shifts are within the known margin for error of such data, regulations often change in response, becoming more restrictive in some years, less restrictive in others, with no apparent pattern and based on no change in resource abundance that can be clearly noted by anglers.  Such constantly changing rules can whipsaw anglers and angling-related businesses, making it difficult or impossible to plan for the future, sometimes causing hardship, and often creating distrust in the management system.

However, as all of those issues constitute some sort of management uncertainty, it’s not clear why a multi-year reform initiative should be needed to address the problem, when the desired regulatory stability, along with adequate protections for managed fish stocks, may be achieved much more simply by accounting for such uncertainty in an annual catch target.

Yet the Mid-Atlantic Council’s recreational reform initiative is, in the overall scheme of things, a relatively minor example of ignoring the benefits of an annual catch target.

Not too many years ago, in the Gulf of Mexico’s recreational red snapper fishery, anglers chronically overfished their ACL, but the Gulf of Mexico Fishery Management Council repeatedly failed to account for the management uncertainty that led to such overharvest.  Eventually, things became so intolerable for the commercial fishing sector, which was being hurt by the recreational overages, that some fishermen sued. 

The result was the 2014 court decision in Guindon v. Pritzker, which saw the United States District Court for the District of Columbia find that regulations recommended by the Gulf Council and adopted by NMFS

“were arbitrary and capricious and not in accordance with the [Magnuson-Stevens Fishery Conservation and Management Act].  Under the MSA, NMFS has a statutory duty to:  prohibit the retention of fish after quotas are reached in the Gulf of Mexico red snapper fishery; use the best scientific information available when making management decisions; require whatever accountability measures are necessary to constrain catch to the quota; avoid decisions that directly conflict with the ‘fishery management plan’s] allocation of catch; and, where sectors are managed separately, avoid penalizing one sector for overages that occur in another.  [emphasis added]”

The District Court didn’t specify what sort of accountability measures were needed to address recreational overfishing, but the chastened Gulf Council ultimately decided on an annual catch target that reduced the recreational ACL by 20 percent to account for management uncertainty.

Unfortunately, that court decision only applied to recreational red snapper in the Gulf of Mexico, and does not govern the actions of other regional fishery management councils nor the management of other fisheries.  Thus, in December 2019, when the Mid-Atlantic Council addressed chronic recreational overharvest in the black sea bass fishery, the reasoning in Guindon v. Pritzker was completely ignored.

Although the Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee acknowledged that it was

“Hard to constrain [recreational] catch under high availability [of black sea bass],”

the same situation that the Gulf Council faced with red snapper in the Guindon v. Pritzker scenario, the Monitoring Committee recommended that the recreational harvest limit for black sea bass be

“Set equal to the ACL, no deduction for management uncertainty,”

even though such recommendation was likely to result in 2020 recreational black sea bass landings that exceeded the recreational harvest limit by 26 percent, exceeded the recreational ACL by 23 percent, and could have caused total black sea bass landings to exceed the ABC by 12 percent. 

When the Mid-Atlantic Council decided to go along with such recommendation—a decision that was ultimately also adopted by NMFS—it not only ignored existing management uncertainty, but it also ignored the Guidelines’ advice on how such uncertainty should be addressed, as well as other language in the Guidelines stating that

“ACL cannot exceed the ABC.”

Still, with respect to the Mid-Atlantic Council’s failure to recognize management uncertainty, the worst was yet to come.

Most people will acknowledge that the onset of COVID-19 made 2020 a very bad year.  It was a particularly bad year for the people trying to manage recreational fisheries as, due to COVID-19, both fisheries-dependent data, such as MRIP catch and landings estimates, and fisheries-independent data, including information about stock abundance and recent recruitment, is largely unavailable.

Both scientific uncertainty and management uncertainty abounded, with management uncertainty levels being particularly high.

Yet the Mid-Atlantic Council decided to ignore management uncertainty once again.

In the case of four recreationally-important species, summer flounder, scup, black sea bass, and bluefish, the Mid-Atlantic Council's relevant monitoring committees acknowledged that

“The Monitoring Committee (MC) discussed the impact of Covid-19 on recreational data collection and the ability to generate catch estimates for 2020.  As discussed in the staff memos, due to a lapse in angler intercept sampling due to Covid-19 restrictions, 2020 catch estimates from the Marine Recreational Information Program (MRIP) will not be available until the end of 2020.”

The monitoring committees went on to discuss the issue in further detail, making it very clear that managers were lacking most of the data needed to calculate recreational catch and landings, and so to craft the regulations needed to prevent overfishing.

If there was ever an example of management uncertainty on steroids, that called out for the use of an annual catch target to keep recreational landings under control, this was it.

But instead of considering management uncertainty, the Mid-Atlantic Council merely decided to leave things unchanged, and carry 2020 regulations over into 2021.

That might work out for summer flounder, as an increase in recreational landings was scheduled for next year, and for scup, as commercial landings are typically well below the recreational quota.  It might even work out for black sea bass, despite the fears that the ABC might be exceeded, as COVID-19 resulted in lower than expected commercial landings, which may very well have offset any recreational overage.

But in the case of bluefish, it’s hard to believe that it was OK.

The bluefish stock is overfished, and there are good reasons to believe that overfishing may have occurred in 2020.  Reading between the lines, it almost seemed that although the Bluefish Monitoring Committee recommended status quo recreational rules, it was calling for Council action when it wrote

“To predict recreational landings, the MC typically uses the most recent 3-year average of landings.  The 2017-2019 average landings (20.30 M lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 M lbs.  This landings methodology indicates a potential 73.86% overage of the 2021 [recreational harvest limit] of 8.34 M lbs.  While the MC still recommends status quo recreational measures for 2021, these analyses indicate a potential range of 2021 landings projection estimates that should be reviewed by the Council and Board…  [emphasis added]”

Yet, despite that advice, the Council and [the Atlantic States Marine Fisheries Commission’s Bluefish Management] Board did not carry out any discussion or review of potential 2021 landings projections at all.  Instead, both management bodies blithely ignored the uncertainty surrounding the 2021 recreational harvest limit and approved status quo rules, despite the extremely high level of management uncertainty and the substantial likelihood that overfishing will, in fact, occur.

Even in normal years, when there is no COVID-19 pandemic to add to fisheries managers’ woes, management uncertainty is present, to a greater or lesser degree, in every recreational fishery.  Yet even a cursory look at the rulemaking process will reveal that regional fishery management councils are very reluctant to acknowledge such uncertainty by adopting annual catch targets or, in the absence of such targets, explicitly accounting for management uncertainty when they set ACLs, despite the published Guidelines.

The reason for that is clear.  

By establishing annual catch targets, the regional fishery management councils would be reducing the amount of fish available to anglers.  And in a management system that, largely due to constant pressure exerted by the recreational fishing industry, places undue emphasis on maximizing the amount of fish available for harvest, rather than reducing landings in order to create a buffer against the unknown, lowering harvest limits when not legally required to do so can be viewed as anathema.

That’s particularly true when the majority of the council members are members of the recreational and commercial fishing industries, and would be personally impacted by harvest reductions.

But management uncertainty is real.  It is something that fisheries managers ignore at their peril.

And at our fisheries’ peril as well.

 

 

 

 

 

 

 

 

THE 2020 ELECTION: HOW MIGHT FISHERIES BE AFFECTED?

 

As this is being written, nearly a month after the 2020 election, the outcome of the election is not yet fully clear.

The Democrats have retained the House of Representatives. Although a few races remain in doubt, it’s clear that their majority in the 117^th Congress will be significantly smaller than it was in the previous session.

Barring some unprecedented and probably unthinkable event, the Democrats have also captured the White House, with President-elect Biden standing by to take over on January 20, 2021.

Senate control, however, remains an open question, to be decided by two runoff elections in Georgia. If Democrats beat the odds and win both, the Senate will be split 50-50, giving the Democrats practical control, as now Vice President-elect Kamala Harris votes to break any tie. However, it is more likely that the Republicans will hold on to a slim 52-48 or 51-49 majority.

What might that mean for fisheries issues? Like the outcome of the election itself, that’s not completely clear.

At the administrative level, we’ll undoubtedly see a better fisheries management environment, as science, rather than special interests’ economic concerns, will drive most decisions. While politics will never be completely purged from the process, and some aspects of fisheries management will remain political endeavors, it’s very unlikely that the new administration will cavalierly override an Atlantic States Marine Fisheries Commission finding of non-compliance, as the current administration did in the case of summer flounder in 2017, or reopen a fishing season, knowing that overfishing would inevitably result, as it did with Gulf of Mexico red snapper in the same year.

It’s also likely that an incoming Biden administration will take a more fish-friendly view of broader environmental issues. President-elect Biden has already expressed his opposition to the controversial Pebble Mine in Alaska’s Bristol Bay watershed and could, conceivably, reverse recent executive orders that allowed commercial fishing in the New England Canyons and Seamounts Marine National Monument and sought to eliminate regulations that allegedly hold down fish landings. Under his administration, we will probably see better enforcement of Clean Water Act regulations, better protections for threatened and endangered fish, and more aggressive stewardship of anadromous species’ spawning and nursery grounds. President-elect Biden will also hire former Senator John Kerry to address climate change issues, which will undoubtedly include those impacting fish stocks.

At the legislative level, predictions are harder to make. Whether or not the Senate remains in Republican control, the fate of fisheries legislation may well turn on whether Congress returns to its traditional bipartisan approach to such issues. Given the partisan nature of so many congressional debates, it’s sometimes hard to remember that when the Sustainable Fisheries Act of 1996 (SFA), a bill that substantially amended and improved the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), was introduced in the 104th Congress by Senator Ted Stevens (R-AK), four Democrats and four Republicans chose to cosponsor the bill, which was then unanimously approved by that chamber, and passed 384-30 by the House.

That contrasts with the 2018 House vote on the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act (H.R. 200), which sought to roll back some of the conservation measures included in the SFA, and so weaken the federal fisheries management system. The House approved that bill 222-193 on an essentially party line vote, that saw only 15 Republicans oppose the bill, while 9 Democrats voted in favor.

If such partisanship prevails in the 117^th Congress, it will be more difficult for fisheries legislation to progress. However, there is probably some reason for hope.

House passage of H.R. 200 was driven, in large part, by many Republican representatives’ belief that industry, including the fishing industry, suffers from overregulation; since Republicans lost control of the House in the 2018 election, deregulation proponents no longer hold enough power to determine the outcome of a vote. While there is a good chance that the Republicans will retain control of the Senate, that chamber has historically taken a more thoughtful approach to fisheries legislation; H.R. 200 languished there after House passage. Such approach is unlikely to change after the most recent election.

In addition, senators from states with large fishing industries, whether Democrats or Republicans, are likely to place the interests of their constituents ahead of any philosophical concerns they might harbor about government overreach or the growth of the administrative state.

Thus, while no one should expect to see a 1996-like level of bipartisan cooperation on ocean issues, it is reasonable to hope that sponsors of needed fisheries legislation will be able to build enough support from both sides of the aisle to see such legislation passed.

What oceans bills will be introduced in the 117^th Congress? While it’s impossible to predict everything that might come up over the next two years, there are a few pieces of legislation that Congress is almost certain to consider.

One is a Magnuson-Stevens reauthorization bill.

Since the Fishery Conservation and Management Act of 1976, which has since evolved into Magnuson-Stevens, was introduced, the law has been reauthorized about once each decade. The last such reauthorization occurred in 2006, so another is arguably overdue. Rep. Jared Huffman (D-CA), Chair of the House Natural Resources Subcommittee on Water, Oceans and Wildlife, has been holding a “nationwide listening tour,” during which a broad array of stakeholders interested in fisheries and marine issues have been asked to provide their views on needed changes to Magnuson-Stevens.

Stakeholders’ comments to Rep. Huffman have been varied. While some fishermen complained about “overly precautionary” management and sought to reduce restrictions on fishing activities, most stakeholders praised Magnuson-Stevens’ conservation and management provisions. Many suggested that any amendments should provide greater protections for forage fish and provide a greater emphasis on ecosystem-based management approaches. Others spoke about the need for improved fisheries data, particularly with respect to recreational fisheries, and the need to consider the impacts of climate change on recreational and commercial fisheries.

The nature of the comments suggested that any proposed changes to Magnuson-Stevens are likely to be evolutionary, taking few significant departures from the existing law while further enhancing its ability to conserve and manage fish stocks, rather than revolutionary changes to the current statute’s language and intent. It is likely that the first draft of a reauthorization bill will be released early in the next congressional session.

Climate change, and its impacts on the ocean, will be another hot issue in the 117^th Congress.

On October 20, 2020, Rep. Raul Grijalva (D-AZ), Chairman of the House Natural Resources Committee, introduced the Ocean-Based Climate Solutions Act of 2020 (H.R. 8632), which addressed a number of climate-related ocean issues, including carbon sequestration, marine protected areas, a prohibition on offshore oil and gas leasing, offshore renewable energy development, climate-related fisheries topics, barrier beach management, various coastal zone management and insular affairs issues, marine mammal conservation, coastal resiliency and the resiliency of coastal indigenous peoples, ocean acidification, harmful algae blooms, marine research, coastal wetlands protections, and related matters.

 Although hearings were held on H.R. 8632 and other ocean-related bills on November 17, 2020, the bill is so large that there is no chance that it will be given serious consideration in the current lame duck session of Congress. However, given that it has already attracted the support of public support, there is little doubt that legislation resembling H.R. 8632 will be reintroduced in the 117^th Congress. Yet, as parts of the current bill, particularly those titles which would create a large network of marine protected areas and prohibit additional offshore oil and gas leasing, have drawn substantial opposition, H.R. 8632 may prove to be the biggest single test of members’ willingness to work in a bipartisan fashion to craft a compromise that is reasonably acceptable to everyone.

 The other issue that is almost certain to generate legislation in the 117^th Congress is offshore aquaculture. Currently, neither the National Marine Fisheries Service nor any other federal administrative agency has the authority to regulate and license aquaculture facilities in waters between 3 and 200 miles from shore, a fact that was confirmed by the United States Court of Appeals for the Fifth Circuit on August 4, 2020. However, both private companies and some federal legislators are eager to see such facilities developed off the U.S. coast.

In order to grant the National Oceanic and Atmospheric Administration regulatory authority over offshore aquaculture, legislators have introduced the Advancing the Quality and Understanding of American Aquaculture Act (AQUAA Act) in both the 115^th and 116^th sessions of Congress. Although the language of the AQUAA Act versions introduced in the two sessions differed somewhat, the intent of the bill was the same, and a third version is very likely to be introduced fairly soon after the new session convenes.

Legislation besides the bills described above will probably be introduced to deal with other, yet unidentified, marine and fisheries issues.

Whether any ocean-related bills pass will depend, in large part, on whether legislators from both parties, and from both houses of Congress, are willing to sit down together and work to further the public’s interest in a healthy and abundant ocean.

They have been willing to do so before. There is hope, but no certainty, that they will be willing to do so once the 117^th Congress convenes.

 

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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 www.conservefish.org/blog/

RECREATIONAL FISHING DATA--THE TRUTH IS OUT THERE, AND IT'S NOT HARD TO FIND

 

Last Thursday, I wrote about the Mid-Atlantic Fishery Management Council’s upcoming deliberations about 2021 recreational regulations, and how such deliberations will be badly hampered by a lack of fisheries data.  But I also noted that such lack of data was a direct result of COVID-19’s impacts on the data gathering process.

In most years, recreational fisheries data is both abundant and easy to find.  Yet that truth doesn’t prevent debates over such data to become one of the most pervasive aspects of fisheries management on the East and Gulf coasts, nor does it prevent such debates from being among the most bitter and divisive discussions that occur at fisheries meetings; only fights over allocation might provide a challenge in such regards.

At one time, the debate over recreational data was easy to understand.  Prior to 1981, the National Marine Fisheries Service based recreational landings estimates on a survey that was woefully imprecise.  Beginning in ’81, the agency began relying on something called the Marine Recreational Fishing Statistics Survey, which was usually shortened to “MRFSS.”

MRFSS was a big step up from the haphazard survey that had existed before, but it still had a lot of problems—something pointed out in the National Academy of Sciences 2006 report, Review of Recreational Fisheries Survey Methods. 

Yet, despite its flaws, MRFSS wasn’t a hot topic among anglers for the first two decades of its existence, simply because the estimates didn’t have much real-world impact on their activities.  During that time, there weren’t too many recreational fishing regulations in place along most of the coast, something that was particularly true in the northeast and mid-Atlantic states, and anglers were generally free to fish—and to overfish—without worrying too much about what MRFSS might have to say. 

But around the turn of the century, that all started to change.

The change was heralded by the passage of the Sustainable Fisheries Act of 1996, which for the first time required NMFS to end overfishing and to rebuild overfished stocks within a time certain—usually within ten years, although under certain, specified circumstances, the rebuilding period might be stretched out.  But fisheries managers had allowed overfishing to go on for so long, and had taken so little action to rebuild overfished stocks, that they kept doing business as usual, even after the law had changed.

Then, in 2000, the United States Court of Appeals for the District of Columbia Circuit decided Natural Resources Defense Council v. Daley, and that decision shook the federal fishery management system, and in particular the regional fishery management councils and the casual approach that they had historically taken to overfishing, to its roots.

The court decided that when NMFS adopted fishery management measures, it had to adopt measures that it expected to work—or, at worst, could no longer adopt measures more likely to fail than succeed.  In response to a Mid-Atlantic Fishery Management Council-approved summer flounder management measure that only had an 18 percent probability of ending overfishing—a fairly typical thing for a council to do up until then—the court wrote

“Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service conclude that a measure that is at least four times as likely to fail as to succeed offers a “fairly high level of confidence.”

Once that decision came out, regional fishery management councils could no longer blithely allow overfishing to continue, or adopt so-called “rebuilding plans” that, in reality, had very little chance of rebuilding overfished stocks.  Instead, they were compelled to impose restrictions on commercial and recreational fisheries that had at least a 50 percent probability of preventing overfishing and rebuilding overfished stocks by the legally mandated deadline.

Suddenly, MRFSS began to matter to anglers, because it was the sole measure used to determine recreational landings, and so to set regulations that would govern recreational fishermen.

That happened at about the same time that some popular East Coast fish, most particularly summer flounder, were in the throes of rebuilding.  To make that rebuilding happen, anglers were placed under a fairly strict, and very unpopular, regulatory regimen.  It didn’t take long before such anglers--and, perhaps more to the point, the businesses anglers supported--began attacking MRFSS, claiming that the numbers were wrong, overstated recreational catch, and should be discarded.

The National Academy of Sciences report justified some of their claims—MRFSS was, in fact, badly flawed—so NMFS moved forward with a new survey, the Marine Recreational Information Program, or “MRIP,” which was intended to clear up the problems.  In that, NMFS largely succeeded.  While it still isn’t perfect, in 2017 the National Academy of Sciences gave MRIP a very positive review in its report, Review of the Marine Recreational Information Program.

But while the critics of MRFSS were right in one respect—that such survey was badly flawed—they were wrong in their assumptions that MRFSS overestimated recreational landings.  MRIP, with its improved sampling methodology, proved that just the opposite was true:  Anglers were catching far more fish than previously believed.

That had two immediate effects.  Because the higher landings implied a higher biomass that could support them, estimates of most fish stocks increased, as did both commercial and recreational harvest limits.  But because anglers were really harvesting so many more fish than previously thought, recreational regulations were often tightened as a result.

That got a lot of anglers upset, because MRIP was telling them things that they didn’t want to hear.  Thus, those anglers did what it seems that a lot of people do in these times:  Reject the verifiable facts relating to recreational landings in favor of “alternative facts” that, although largely divorced from reality, better support their views of how things ought to be.

Then they target MRIP data with the same sort of animus that they had for MRFSS, and spin some wild stories, and some absurd conspiracy theories, about both MRIP and the fishery managers who use it.

Thus, we see a Maryland party boat captain spouting off about how

“MRIP (the NOAA Marine Recreational Information Program, the way NOAA counts recreational catch data) was no good right out of the gate,”

largely because it shows that recreational landings are higher than he’d prefer to believe.

Such captain’s opinion is markedly at odds with that of the National Academy of Sciences panel that issued the report on MRIP mentioned above.  To the best of my knowledge, the party boat captain, unlike the people who wrote the report, lacks a doctorate—or a master’s degree, or any other academic qualification—in statistics, fisheries management, or a related discipline, but he nonetheless has a fairly decent Internet following that share his ravings far and wide, and have won him a bit of a following.

Those people know what they want to believe.

It’s a classic example of “confirmation bias,” which is a fancy way of saying that people will believe things, even very unlikely things, that support their existing opinions, and disregard any facts to the contrary.

It’s the same sort of thing that we’re seeing today, when millions of otherwise-rational and respectable folks have talked themselves into believing wild conspiracy theories about elections being stolen by voting machines produced by a socialist-supporting company founded by Hugo Chavez, the late dictator of Venezuela, which were programmed to send all voting results to Europe, so that they might be altered to favor Joe Biden, rather than the simpler and far more provable explanation that their candidate ultimately got fewer votes, both popular and electoral, than the other guy.

But when you don’t want to believe that your candidate lost, conspiracy theories may be all you have left.  The same is true when it comes to fisheries data.

Thus, we see an outdoor writer in Louisiana complaining that

“The federal folks use the Marine Resources [sic] Information Program, a system of estimating recreational catch, and a system decried for years by many marine biologists—including those in the pre-Gov. John Bel Edwards administration—for its lack of timely information and a seeming inability to accurately estimate the Gulf of Mexico’s red snapper stock.”

It’s hard to know where to begin when a writer doesn’t even get MRIP’s full name right—it’s “Recreational” not “Resources”—and seemingly fails to understand that the purpose of MRIP is solely to estimate recreational catch, effort, and landings, and not to estimate the size of the red snapper—or any other fish—stock.

But anglers upset over what they view as restrictive red snapper rules will undoubtedly take those words as gospel, because they say what such anglers want to hear.  Thus, those anglers will already be primed to accept his word that

“The federal folks are trying to bring the recreational catch estimate [from various state surveys] in line with their MRIP data, and there’s every reason to believe that their numbers are skewed.

“It’s been a long-held belief the first thing folks entering state and federal positions is [sic] a crash course in Bureaucracy 101 or some such number to take it to a graduate-level course.

“The course’s first lesson is preserving your job, and clinging to MRIP as the be-all, end-all of fisheries management falls somewhere in applying that first B101 chapter.

“With federal folks insisting Gulf states come in line with MRIP is akin to equipping our modern military with flintlock muskets…”

Folks opposed to current red snapper management were undoubtedly as quick to believe those words as some voters are willing to believe Joe Biden didn’t win Georgia despite three recounts that can prove he was the victor, with neither the writer nor the anglers who believe him willing to learn that the state surveys estimating recreational red snapper landings are considered “specialized surveys” that either

“have replaced MRIP general surveys…[or] are used alongside MRIP general surveys to collect data for select fisheries or during select fishing seasons,”

and that such state surveys were never intended to stand on their own, but rather are a part of MRIP

“designed to improve regional monitoring of the recreational red snapper catch and effort. 

Anglers—and perhaps the writer—might also be surprised to learn that the need for calibrating the specialized state-administered surveys with MRIP, what the above-quoted writer referred to as “bringing the recreational catch estimate” from state surveys “in line with MRIP” is not a new issue.  Nor is it, as Ted Venker, Conservation Director of the Coastal Conservation Association claimed, some sort of 

“gamesmanship”

 and an effort by NMFS to maintain

“its adversarial relationship with the states and with recreational anglers,”

an “adversarial relationship” which exists only in some folks’ conspiracy-obsessed thoughts.

Instead, the need for calibration was recognized and discussed at least two years ago.  Because MRIP and the state-administered surveys each approach data collection a little differently, the data from each needs to be put into the same statistical context—into a so-called “common currency”—before it can be combined and used in a Gulf-wide red snapper management program.

But since it appears that, at least for some states, calibration will lead to more restrictive red snapper regulations, too many anglers, and angling industry advocates, want to view it as some a sinister federal conspiracy, rather than just as good science.

Other fisheries have seen similar criticism’s of MRIP data, coming from writers, editors and anglers who are less interested in fact-based truths and more concerned with creating or believing a narrative that casts themselves as victims of a nefarious federal management system.

Yet it only takes a modicum of effort to prove that the alternative facts such folks choose to believe are not really facts at all.  The National Academy’s report is a good place to start, but folks unwilling to read a hundred or so pages of fairly dry analysis and recommendations, but willing to learn how the recreational data system really works, will find that NMFS has done an exemplary job of explaining the process in language that is readily accessible to the layman.

It has produced a number of brochures, fact sheets, infographics and videos that are designed for anglers, and explain how recreational data is gathered and used, which are all made available on a single web page.

Anyone seeking more detail on how angler intercepts—the in-person interviews and catch samples—and effort surveys are combined into catch estimates can find it on another web page, while those seeking even more detail can download the Recreational Fishing Survey Design and Statistical Methods Manual which, for those willing to do the reading, sets out exactly how the survey works.

The Bible says that

“The truth will set you free.”

That wisdom applies to all facets of life, and it thus behooves any angler wanting to be free of the unfounded rumors and conspiracy theories that cloud the issue of recreational data to take some time to seek out the truth, which is most definitely out there, and easily found simply by clicking on some of the links provided above.

Those who seek the truth not hear what they want to hear, but they’ll learn what they need to know.