ASMFC COULD CONSIDER STRIPED BASS MORATORIUM

There’s an old saying that we probably ought to hear more often these days:  Be careful what you wish for, because you might get it.

That’s something that striped bass anglers ought to contemplate as they look forward to the Draft Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which is likely to be released for public comment in less than a month, and as they think back on certain comments that they made withy respect to the Public Information Document for Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which they made last spring.

When it released the Public Information Document for stakeholder comment, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board wasn’t specificallyy looking for comments on a harvest moratorium; instead, it was looking for input on broader guidelines that it would use to manage the stock, and then invited the public to also provide comment on any other issues that they might want to be considered.

A lot of striped bass anglers, who tend to be more conservation-oriented than salt water fishermen as a whole.  They're not happy that the ASMFC allowed the stock to become overfished and experience overfishing.  They told the ASMFC that it wanted to see striped bass harvest reduced and abundance increased.  

And many of those anglers said that imposing a harvest moratorium was the best way to make those things happen.

Such comments must have been shocking to fishery managers.  Anglers tend to shy away from management issues, and rarely comment on proposed management measures.  Usually, when managers hold a hearing on fishery issues, such hearings tend to be dominated by the commercial and recreational fishing industries, which differ on many things, but are usually united in opposition to landings reductions and more restrictive regulation.

But when striped bass issues are on the table, anglers turn out to speak for the fish.

Striped bass have always been a legendary sport fish, particularly in the northeast.  They were always the coast’s apex predator, the biggest of the inshore sport fish, that could be found everywhere—in the ocean and in the bays, around rocks, sod banks, and sandy beaches, on shallow flats and over deep-water reefs—but are not easily caugh, except by those anglers who had “paid their dues” and taken the time to learn the striper’s ways.

When fishermen gathered around the dock in the evening, to tell their tales and drink a few beers, the talk wasn’t of flounders, blackfish, or tomcod, but of striped bass.  They spoke of fish caught, and of fish lost, and they spoke of the fish that they hoped to catch in the future.

And then, sometime around 1980, the conversation changed.  Striped bass anglers began to talk about whether they, and the bass, had any future at all.

Today, we all know the story—how the stock collapsed and, thanks to hard and dedicated work by Congress, the Management Board, and the states, was nursed back to health by the mid-1990s—because that tale of loss and recovery is now legend, too, with anglers who weren’t even born when the population first crashed learning about it from older fishermen who had lived through the bad times and seen the return of the good.  

And thanks to that story, handed down between generations, many anglers feel a duty to conserve and stand up for the stock.

But the legend has morphed, as legends do.  While its conservation message still rings true, the details of what happened forty years ago have gotten a little fuzzy.  And one of the fuzziest details of all is the moratorium that “saved” the striped bass.

Ask a striped bass angler today, particularly one who wasn’t alive back then, and most will be quick to tell you that the striped bass recovery can largely be attributed to a coastwide moratorium imposed on the fishery, which prevented anyone, anywhere, from killing a striped bass.

Today, many people still believe that a moratorium represents the best way to assure the overfished striper’s recovery.  One organization, Stripers Forever, called for a 10-year ban on all harvest when it commented on the Public Information Document last spring.  As one Stripers Forever board member explained,

“Bold, decisive action is needed to prevent the collapse of the fishery like we saw in the late 1970s.  An emergency moratorium was adopted in 1984 and is the only approach proven to work.  We are calling on recreational anglers, conservationists, and anyone who depends on a healthy coastal ecosystem for their economic well-being to stand with us and demand that a moratorium be adopted now.”

A lot of anglers took up Stripers Forever’s call.  During last spring’s round of comments on the Public Information Document, the ASMFC received 170 comments supporting some sort of striped bass moratorium.  141 of such comments were written (130 from individuals, 1 from Stripers Forever, and 10 form letters), while 29 were made by stakeholders speaking at the various hearings held up and down the coast.  The ASMFC’s Fishery Management Plan Coordinator characterized such comments by noting,

“Most comments related to harvest control supported a moratorium on all commercial and recreational harvest for some period of time.  Suggested times ranged from 3 years to 10 years or until the stock is rebuilt.  Some comments support designating the striped bass a gamefish (recreational only with some recreational harvest allowed).  [emphasis added]”

And the ASMFC listened.  Sort of.

At the September 28 meeting of the ASMFC Plan Development Team that is putting together the draft Amendment 7 for discussion at the October Management Board meeting, the PDT examined a proposal, intended to protect the big 2015 year class, to impose a moratorium on all recreational harvest for some length of time that would allow the 2015s to become an important component of the spawning stock.

And yes, you read that correctly.  The moratorium would be imposed solely on the recreational fishery, while the commercial fishery would be allowed to continue doing business as usual, removing whatever 2015s that it encounters along the way.

That isn’t exactly what Stripers Forever and the other moratorium proponents were looking for.  Those folks were seeking a complete ban on striped bass retention, that was applied to both sectors.  Leaving the commercial sector free to kill bass that anglers were legally compelled to release—a sort of “anti-gamefish” measure that would be 180 degrees opposed to what StripersForever has long worked for and some individuals requested at last spring’s hearings—would almost certainly be an unacceptable option, both to moratorium proponents and to the great majority of recreational fishermen.  

Frankly, I don’t see it as a politically viable option for the Management Board to approve.

Still, there is a very remote chance that it could happen, and if it does, it will happen because some well-meaning people asked for an action that wasn’t needed, based on a belief in past events that never really happened.

I was fishing for striped bass before the crash occured.  I fished through the collapse, and I celebrated the bass’ recovery in the mid-1990s.

And because I was alive and on the water at the time, I know one thing to be true:  A coastwide “emergency moratorium” was never imposed.  Not in 1984, and not in any other year.

Yes, many states closed their striped bass fisheries for a period of time.  But such closures were neither uniform, coordinated, universally imposed, nor even necessarily adopted in order to restore the bass population. 

Maryland and Delaware shut down their fisheries for a few years, 1985 through 1989.  But Virginia, Maryland’s neighbor in the Chesapeake Bay, only closed its season down for a single year, in 1989, when the stock was already clearly on its way to recovery.  Connecticut and Rhode Island imposed striped bass moratoriums in 1986, to preserve the remaining fish.  New York also shut down its fishery that year, but such closure was brief, lasting only one year, and was done to keep people from eating striped bass loaded with PCBs released by factories along the Hudson River, and not to conserve the striped bass.

On the other hand, Massachusetts and New Jersey, which are some of the most important states on the coast, with respect to striped bass harvest, never closed their fisheries at all.

While the state landing bans probably did benefit the fishery, the striped bass found its salvation not in an irregular patchwork of state moratoriums, but in federal legislation called the Atlantic Striped Bass Conservation Act, which became law in 1984 and, once that legislation empowered the ASMFC to adopt binding striped bass management measures, in Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which protected the female spawning stock biomass until recruitment was again strong enough to rebuild and maintain the stock.

Right now, the PDT can’t even provide a good idea of how a moratorium would impact the stock, and whether it might significantly accelerate its rebuilding, for the factors that need to be considered are very different from those addressed with a size or bag limit change.  When managers adopted the current size limit, for example, they presumed that recreational fishing effort would remain roughly the same, and that harvest would merely be focused on a particular size class of fish.

But such assumption doesn’t hold true in a moratorium.  How much would recreational fishing effort chage if anglers could no longer retain striped bass?  No one really knows.

And no one knows how much of the fishing mortality, now attributable to recreational landings, would merely be converted into release mortality if a moratorium was imposed.

Thus, while I’m not categorically opposed to a moratorium on striped bass harvest—so long as it prohibits all striped bass harvest, and not just apply to of one particular sector—I’m far from convinced, given the current state of the stock, that such drastic action is needed.  After all, as depleted as the stock is today, the current female spawning stock biomass is between three and four times as large as it was in the early 1980s, and the ASMFC managed to fully rebuild the bass population by 1995 without ever completely closing the fishery.

I strongly suspect that the Management Board will feel the same way, and not impose a moratorium, even if it does leave a moratorium option in the Draft Amendment 7 that goes out for public comment.

That doesn’t concern me. 

What does concern me is that, by focusing on a moratorium, anglers and other stakeholders might not pay enough attention to things that really could hurt the striped bass.  Things like amended fishing mortality management triggers, that would allow overfishing to go on for up three years before any remedial action is taken, and then give the Management Board another three years to fix the problem—and such options will appear in the Draft Amendment.

Trading a ban on recreational harvest for a management plan that still allows commercial landings, while giving the Management Board more excuses for delay after a threat to the stock first appears, seems like a bad deal.

But if stakeholders convince the Management Board to adopt a moratorium in Amendment 7, that might just be the deal that they get.

ATLANTIC COD NEED YOUR HELP

 Anyone who has spent a few decades fishing in the northeast is all too aware that cod stocks have collapsed and what fishing remains is but a thin and watery shadow of what people once enjoyed.

Fishery managers have tried to rebuild cod stocks, but such rebuilding has been unsuccessful, for reasons that aren’t entirely clear.

It’s possible that a warming northern ocean has thrown annual plankton blooms out of synch with cod spawns, and so denies larval and juvenile cod the food that they need to thrive.

It’s possible that managers’ misunderstanding of cod stock structure has led to management measures that don’t provide the intended protections to local cod populations, and allow their declines to continue.

It’s possible that, because on-board observers are only required on a small fraction of northeast groundfish trips, more cod are being caught than fishermen are reporting, and that a large number of those fish are being dumped overboard, dead, without fishery managers being aware that such mortality occurs.

And it’s possible that fishery managers just made too many optimistic assumptions when interpreting fishery data, and by doing so failed to impose management measures sufficiently rigorous to end overfishing and rebuild the overfished stock.

In response to managers’ repeated failures to end overfishing and rebuild the stock, the Conservation Law Foundation filed a petition with the National Marine Fisheries Service on August 13 of this year, which requested that the Secretary of Commerce, acting independently from the New England Fishery Management Council, initiate a management plan that would effectively address the problems that have long beset the cod stock.

In its petition, the Conservation Law Foundation asserted that

“Deference to short-term economic interests has dominated decisions by the New England Fishery Management Council (“Council” or “NEFMC”), which has long ignored scientific concerns and sets catch limits for Atlantic cod using:  (1) inaccurate catch data; (2) an arbitrary control rule process that does not reliably end overfishing; and (3) repeatedly overly optimistic interpretations of stock assessment models that routinely underestimate fishing mortality and overestimate stock biomass and produce growth projections that have not materialized.  As the legally responsible party, NMFS has repeatedly approved the Council’s risk-prone recommendations, notwithstanding the failure of these conservation and management measures to achieve core statutory objectives.  Making matters worse, NMFS has neither adequately monitored the fishery (leading to unlawful discarding and unreliable catch data), protected necessary habitat (diminishing the species’ ability to rebuild), nor accounted for the impacts of climate change…

“According to the most recent stock assessment, not only are both Atlantic cod stocks—Gulf of Maine (“GOM”) cod and Georges Bank (“GB”) cod—overfished with overfishing still occurring, but the current scientific understanding reveals that they have been subject to overfishing for decades and all attempts to rebuild the stock as required by law have failed.  The best scientific information available shows that GOM cod has been subject to overfishing since 1982 and overfished in all but two years.  GB cod fares no better.  While no accepted assessment model currently exists for the GB cod stock, undermining the ability to set catch limits and quantitatively assess rebuilding, the most recent accepted assessment concludes that GB cod has been subject to overfishing for the entirety of the time series for which this determination could be made and overfished in all but two years.

“In addition to the persistent overfished stock status, neither stock is on track to rebuild consistent with the legal requirements of the [Magnuson-Stevens Fishery Conservation and Management Act].  Alarmingly, the probability that GOM cod will rebuild within its scheduled 2024 timeline—the second ten-year rebuilding period allowed for this stock—has plummeted in the two years between the 2017 and 2019 assessments from a zero to 26 percent chance of rebuilding on schedule to a zero to one percent chance of rebuilding on schedule, even in the absence of fishing.  While rebuilding progress cannot currently be quantitatively assessed for GB cod, there is no evidence to suggest that this stock can rebuild within its scheduled 2026 timeline.  It appears, however, that to recent assessments of adequate rebuilding progress for either stock has been conducted—at least there are no review documents or no findings of inadequate progress in documents available to [the Conservation Law Foundation] or the public—despite the statutory requirement of conducting such an assessment and making such a determination at least biannually…”

On August 18, NMFS published a notice in the Federal Register acknowledging receipt of the Conservation Law Foundation’s petition, and seeking public comments on the issues raised.  The public comment period ends at 11:59 p.m. on October 4.

There can be no question that fishery managers have failed to successfully address the problems besetting Atlantic cod, have failed to end overfishing, and have failed to even begin rebuilding overfished cod populations.

It’s a failure that strikes me particularly hard because I have been codfishing ever since I made my first party boat trip, and hooked my first cod, fishing with my family on a half-day party boat out of Provincetown, Massachusetts in 1960.  Since then, I have made many one-day party boat trips out of ports in Massachusetts, Rhode Island, and New York.  I have booked multi-day trips to Georges Bank out of Montauk.  And I have made private boat cod trips from Connecticut and New York as well.

Over all that time, I have watched the cod decline. 

In my teens and early twenties—from the late 1960s to 1980 or so—I enjoyed the midsummer cod fishery on Cox’s Ledge, a fishery that supported party, charter, and private boats sailing from ports in Rhode Island, Connecticut, and New York.  In those days, there were plenty of smaller cod, but fish in the 20s were also common.  To win the big-fish pool on a party boat usually required a cod over 40 pounds, and  50-pound pool fish were far from rare. 

One October day in 1975, on a lark, I joined a couple of college friends and drove down to Pt. Judith, Rhode Island, to go codfishing on one of the local party boats.  We had made no prior plans, had no idea whether fish were biting, and fished on a difficult day when the sea was still heaving from a passing storm.  Despite our lack of preparation, my two largest cod weighed 26 and 32 pounds.  Even though anglers caujght few cod on that trip, neither one came close to taking the pool.

By 1990, a multi-day party boat trip to Georges Bank produced fewer and smaller cod than I once caught on day trips out of Rhode Island.

In the early 1980s, we caught cod on private boat trips out of Connecticut and New York’s Long Island.  The inshore fishery was already declining by then, but anglers fishing on offshore wrecks often caught fish well over 20 pounds during the summer; winter saw some 40-pound cod come over the rail.  50s were rare, but occasionally seen, and every few years, someone would catch a cod close to, if not over, 60.

Today, such fish are just memories. 

I belong to Long Island’s South Shore Marlin and Tuna Club, which has about 100 members, almost all avid and experienced fishermen.  Each year, the club runs a contest for the three largest fish, of various species, caught by members.  Today, nine months into the 2021 season, only a single cod has been entered into our annual contest.

It weighed a pathetic 5.4 pounds.

Thus, it is clear that if we are ever to have a viable cod fishery, management needs to change.  Supporting the Conservation Law Foundation’s petition can help make that happen.

Interested parties can go to the Federal Register notice (which is linked HERE) and click on a link that will allow them to comment electronically.

Those who are looking for a simpler way to comment can click on this paragraph, which is linked to a Conservation Law Foundation website that includes a pre-printed message to NMFS; once at the site, all a person needs to do is fill out his or her name and other relevant information, and hit “SUBMIT.”  By doing so, each person will ask that NMFS

“Stop directed fishing for Atlantic cod, both commercially and recreationally…

“Monitor all New England groundfish trips…

“Protect important cod habitat…

“Require modified fishing gear…[to] help reduce incidental catch of cod…”

and

“Make sure recreational fisheries aren’t killing cod…”

It’s an important message to send, and the Conservation Law Foundation has taken steps to assure that it can be sent easily.

Over the past four or five decades, Atlantic cod have suffered long-term abuse.  Now, it’s more than past time for them to enjoy a little support.

 

 

SHARKS EAT SOME HOOKED FISH. SO WHAT?

 Some years ago, I was working my way through thick forest, on the 9,000-foot slopes of the Shoshone National Forest, trying to spot any movement that might reveal the presence of a decent mule deer buck.  I’d been hunting for a week.  My sea-level lungs had adjusted to the air in high country; I could finally crawl between the trees without gasping like a beached fish.

Deer weren’t the only things that lived in the mountains.  “If we get one down,” my guide told me, “we need to dress it fast and get it back to the truck.  The grizzlies have learned that a shot can mean food, so if there’s one nearby, it’ll come running to steal our kill.” 

A freshly-shredded tree stump, that a bear had torn apart in hopes of finding beetle larvae, made it perfectly clear that at least one grizzly was, in fact, nearby.

We eventually did catch up with the feeding deer, but the only buck in the bunch was a forkhorn.  It was legal meat, but I didn’t fly across most of the country to shoot a deer that was still negotiating the ups and downs of cervine adolescence, so I let it walk away.

Yet, though I didn’t come away with a deer, I did come away deeply impressed by the way the recovering grizzly bear population was renewing its mark on the ecosystem and on people’s lives.  Wyoming hunters, like my guide, were learning to live with a fellow apex predator, one that has no qualms about chasing people away from a downed elk or deer, and one that has, on occasion, injured and even killed hunters who didn’t abandon their kill quickly enough to please the bear.

Yet the bears abide. 

Despite growing calls for a hunting season, they remain on the fully-protected list; the growing population still falls far short of where it stood a century or more ago.  Having hunted deer on the bear’s doorstep, I know that there is something about grizzly sign that makes that country more complete and more vital than it would have been if the bears were not there.

Off the southeastern coast of the United States, we’re seeing something very similar happening, with the ocean’s apex predators—various species of shark—beginning to slowly recover from years of overfishing, becoming more abundant and, more and more, challenging human fishermen for their kills.

It’s not exactly like it is with the bears, of course.  Humans and sharks live in different environments; a big hammerhead can’t sneak up behind you and bite off a chunk of your leg while you’re braced against the side of a boat, waiting for a fish to come within gaffing range.  Sharks can only steal fish that are still in the water, and pose no existential threat to the fishermen themselves.

Even so, many anglers develop an antipathy to sharks that challenge them for their catch.  It’s no coincidence that Ernest Hemingway’s most heralded novel, The Old Man and the Sea, described a Cuban handline fishermen’s heroic but ultimately futile struggle to protect his huge marlin from a horde of feeding sharks.

Hemingway fished the blue water, and undoubtedly had his own marlin mutilated by sharks every now and again.

But sharks were just part of the angling landscape back then.  The longline fishery hadn’t yet devastated shark populations, and all species, from lemons through silkies, and up to the shortfin makos, still thrived.  And, as sharks do, they often fed on hooked fish that were clearly distressed and easy to catch.

Angler/author S. Kip Farrington, Jr., in his 1949 book, Fishing the Atlantic, described the shark situation off the Bahamas this way:

“Unfortunately every variety of shark seems to come to Bimini waters and it is not very long before they gang a hooked fish that is down outside the dropoff in the stream.  If your fish gets down on you, you are really in for trouble.  I have seen a 386-pound blue marlin boated in fifteen minutes with three great shark slashes in its body but not a single shark could be seen.  The blacktip shark, I think, is the worst offender.  The sand, the gray, and the blue sharks are all bad.”

His language made it clear that Farrington wasn’t a fan of the sharks.  At the same time, he never suggested the shark population should be reduced for anglers’ convenience.  He appeared to view sharks as another challenge inherent to the sport, the way a golfer might view the rough alongside the fairway or the water hazard behind a fast and sloping green.

Today’s saltwater anglers seem to whine quite a bit more. 

The Palm Beach [FL] Post reported, in March 2021, that the Florida Fish and Wildlife Commission was holding meetings

“to address concerns about the damage to the economically bountiful marine industry from sharks gobbling hooked fish.”

At one such meeting, Capt.  Bill Taylor, who operates a charter boat out of Jupiter, FL, complained that

“I can’t get fish to the boat fast enough.  We are overrun with lemons and bulls right now, and I have never seen this many sharks.”

But then, shark populations have been overfished for so long that it’s probably not surprising that anglers are seeing more sharks than they used to.  That point was made by the well-known angler, artist, and conservationist Guy Harvey, who pointed out that the seeming increase in shark numbers is just the result of the fish beginning to rebuild their numbers. 

He called the complaints of sharks eating anglers catch an example of the “shifting baseline syndrome,” which sees people, used to an unnaturally low number of sharks in the ocean, wrongfully believe that the animals are overabundant when they begin to return to healthy population levels.

Harvey noted that

“These were an extremely successful group of animals until we came back in the 1970s and knocked the hell out of them.”

Now,

“Of course there will be more interactions with these animals, because their populations are rebounding.  The problem is not with the sharks, its with human beings.  Sharks are not an invasive species.”

Yet fishermen seem to miss those points, perhaps because they’re not thinking about the sharks, but only about themselves.  Thus, we see a representative of the usually conservation-oriented Billfish Foundation trying to make the argument that

“reducing shark depredation is a matter of conserving other fish species as much as saving and angler’s catch,”

and complaining that

“10 hooked yellowfin tuna were killed by sharks before a fisherman was able to get his legal federal limit of three tuna to the boat intact,”

when if conservation was really the issue, the fisherman in question could have merely stopped fishing after the sharks took his third fish, instead of insisting on taking three tuna home.

After all, sharks have to kill fish in order to survive.  Fishermen don’t.

Some fishermen understand that truth.  So when the Bonefish and Tarpon Trust became concerned with the number of hooked and/or released permit being killed by sharks in the lower Florida Keys, it didn’t seek to reduce the shark population, but instead called for outlawing fishing for permit during that fish’s spawning season, when the worst shark depredation takes place.

Unfortunately, such enlightened outlooks are rare among fishermen.

The Bahamas declared its waters to be a shark sanctuary in 2011; according to Eyewitness News, the Bahamas Commercial Fisher Alliance is now calling on the country’s Ministry of Agriculture and Marine Resources to

“temporarily lift the ban on shark harvesting and allow culling to balance the population.”

The Alliance

“noted that ‘sharks and turtles’ have become a ‘nuisance’ to fishermen,”

and has stated that

“The protective measures are successful as we see an explosion in the shark populations; however with this success comes the hazards of overpopulation, which unfortunately increases the competition for food causing the animals to seek other food sources…”

It’s important to note that there is no scientific consensus that, or even any scientific support for, the proposition that sharks are experiencing “overpopulation,” or that their numbers must be reduced in order to attain any needed ecological “balance.”  However, it is likely that a rebuilding population of sharks may be competing with some commercial fishing activities, leading for a call to drive the fish’s numbers back to previous, depleted levels that kept them out of the fishermen’s way.

Unfortunately, it now appears that the National Marine Fisheries Service may be jumping on the shark depredation bandwagon.  That agency has just awarded a $195,000 grant to two universities, one in Florida, one in Mississippi, which will look into sharks’ thefts of anglers’ fish.

According to the news site TCPalm,

“Shark depredation has become such a problem, scientists are launching a study to find solutions.”

It’s hard to think of “solutions” that might not go hard on the sharks, given that the study will reportedly

“use a citizen-science approach and work with charter fishers and private recreational fishers,”

the very people who are complaining that there are too many sharks ion the ocean.  The head researcher has asserted that

“Incorporating fishermen’s knowledge into a scientific process gives them more confidence in scientific results, promotes trust and, more importantly, increases the quantity and quality of data.”

While that may be true, given fishermen’s complaints about the shark “problem” and their demands that something be done about it, they probably will have neither trust nor confidence in any results that don’t reduce the numbers of fish they lose to the big predators.  It’s very possible that the study will come up with some viable findings—say, identifying times and places where sharks are less often found, and so less likely to appropriate a hooked fish—but unless those times and places also provide good fishing, anglers are not likely to endorse such approaches.

Instead, sportsmen fighting for marine balance, to appropriate the name of one Facebook group, are likely to continue to demand that shark stocks remain semi-depleted, so that such purported “sportsmen” won’t have to compete with other predators that have a far more ancient and more necessary claim on the sea’s fish.

Hopefully, NMFS won’t give in. 

As the chief scientist for the shark research group OCEARCH observed,

“I talk to fishermen around the world, and the one thing they all have said is the best fishing spots are the most sharky.  It’s easier for us to adapt then for the sharks to adapt.”

 

 

 

MUST NORTH CAROLINA CONSERVE AND MANAGE ITS MARINE RESOURCES?

Federal fishery management has been successful largely because the Magnuson-Stevens Fishery Conservation and Management Act compels fishery managers to prevent overfishing, rebuild overfished stocks in a timely manner, base management actions on the best scientific information available, and hold fishermen accountable when they exceed their annual catch limits.

The National Marine Fisheries Service’s management actions are subject to judicial review.  Should any action fail to meet the standards established by Magnuson-Stevens, such action can and probably will be challenged in court.  Thus, beginning in 2000, with the appellate court’s decision in Natural Resources Defense Council v. Daley, which determined that management measures must have at least a 50 percent probability of preventing overfishing, and extending to this present day, federal fishery managers have been legally obligated to properly conserve and manage the nation’s fish stocks.

The duties of state fishery managers are not so well-defined.  It is not unusual for the states to adopt less effective management measures which neither end overfishing nor rebuild overfished stocks. 

We saw that in 2017, when the Atlantic States Marine Fisheries Commission, formed pursuant to an interstate compact between East Coast states that came together to manage state-waters fisheries, adopted Amendment 1 to the Interstate Fishery Management Plan for Tautog, which permits the Long Island Sound stock of tautog to experience overfishing through 2029.  

We also saw it, twice, when the ASMFC’s Atlantic Striped Bass Management Board failed to implement a plan to rebuild the striped bass stock in no more than 10 years, as required by Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, when such requirement was triggered by benchmark stock assessments released in 2013 and again in 2019.

Individual states also have a checkered record when it comes to managing inshore fish stocks.  Some, such as Florida, have been reasonably successful; others have not, with Louisiana’s mismanagement of its speckled trout (spotted seatrout) population a case in point.

While state-managed fisheries generally don’t fare as well as those subject to Magnuson-Stevens, state management is often praised by recreational fishing/boating industry and “anglers’ rights” organizations, which see conservative management measures as unduly restricting anglers' ability to pile dead fish on the dock, and thus as a threat to short-term industry profits.  

Yet there are also stakeholders who see the flaws in state management systems, and are trying to compel states to engage in meaningful conservation and management efforts.

One example of that is currently making news in North Carolina, where the local chapter of the Coastal Conservation Association (ironically, CCA is one of the organizations that, on the national level, is trumpeting the merits of state-level management) has sued the state of North Carolina, alleging that North Carolina has

“long-standing public trust responsibilities to manage coastal fish stocks in a way that protects the public trust rights of the public, as incorporated in the North Carolina constitution, to fish in North Carolina’s public waters.”

CCA North Carolina further claims that

“The state has failed to meet that legal duty.  Instead of allowing for profit exploitation of coastal fisheries resources by fewer than 7,000 to supplant the public rights of 11 million citizens to use coastal fisheries resources…

“Stocks in multiple fish species like river herring, Southern flounder, striped bass, spot, croaker and weakfish have declined precipitously since the late 1980s, with little to no will or effort by the state to implement the measures necessary to recover those stocks.”

CCA North Carolina said that

“The complaint also chronicles the staggering bycatch resulting from the State allowing the use of unattended gillnets and trawling in North Carolina estuarine waters heavily populated with juvenile fish—two practices that all other southeastern states have banned or severely curtailed due to the extraordinary amount of waste they generate.”

Not surprisingly, the State of North Carolina took exception to the Coastal Conservation Association’s claims, and moved to dismiss the lawsuit claiming, according to CoastalReview.org, a news site run by the North Carolina Coastal Federation, that it enjoyed immunity from such legal actions.  However, a judge recently ruled that the lawsuit may proceed; the state intends to appeal that ruling.

Depending upon its outcome, the Coastal Conservation Association’s lawsuit could set an important precedent, and set a new legal standard for state fishery managers in North Carolina, and perhaps elsewhere.  Professor Joseph Kalo, the Graham Kenan Emeritus Professor of Law at the University of North Carolina School of Law, believes that the state’s position is flawed, observing that

“The State’s assertion that it does not have an enforceable, affirmative obligation to manage North Carolina fisheries for the long-term public good flies in the face of the clear language of the North Carolina Constitution, Article I, Section 38, which states that the right to fish shall be forever preserved for the public good.  The State’s position would make the constitutional right to fish meaningless.  Surely the voters in 2018, who by a wide margin approved this amendment to the Constitution, believed that the right to fish meant something more than the right to wet a hook.  Preserving the right necessarily implies an obligation to use sound science to secure, protect, and manage the health of fishery resources for the long-term public good.”

Not surprisingly, North Carolina commercial fishermen are trying to recast the lawsuit not as a demand for good stewardship, but instead as a scheme of a “handful” of elitist, catch and release anglers to keep all of the fish for themselves, without regard for either the commercial fleet or for low-income anglers who want to take home fish to eat.

In doing so, the commercial industry’s spokesman does harm to the very people that he claims to support, the commercial fisherman and so-called “sustenance” (did he, perhaps mean “subsistence”?) angler who fishes for food.  For the answer to healthy commercial, recreational, and subsistence fisheries doesn’t lie in fishermen fighting each other for a bigger piece of an already shrunken and mismanaged pie, but in everyone working together to build a pie that is large enough to satisfy everyone’s needs. 

If the Coastal Conservation Association’s allegations are correct, that is, if the state permits the use of non-selective commercial gear to incidentally capture and kill large quantities of juvenile finfish, and if the State has not taken action to get overfishing under control, then such actions will hurt the long-term prospects of commercial and subsistence fishermen as much as they will hurt recreational fishermen.  In such case, although the commercial fishermen are unlikely to admit it, a CCA win will, in the long run, help them as well.

It is difficult to predict what any court will do.  But if the appellate court allows the lawsuit to move forward, and if the Coastal Conservation Association ultimately prevails on the merits of its case, the court’s decision will create a new paradigm in state fishery management where, for the first time, state managers will have a legally enforceable obligation to manage coastal fish stocks for long-term sustainability.

Because this is an issue being litigated in North Carolina state courts, with North Carolina as the sole defendant, and involves interpretation of the North Carolina constitution, the court’s final decision will not constitute binding precedent in any other state. 

Yet there is still reason to hope that, if the courts ultimately rule in favor of the CCA, that any such decision will be seen as persuasive authority by judges in other states, who might also interpret their states’ laws (such as section 13-105 of New York’s Environmental Conservation Law, which states, in part, that “It is the policy of the state that the primary principle in managing the state’s marine fishery resources is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations…”) with the understanding that the state has a legally-enforceable obligation to manage marine resources for the greater public good.

We can only hope that will, in the end, be the outcome.

 

STRIPED BASS AMENDMENT 7 AND ITS ACHILLES' HEEL

 Ever since the Atlantic States Marine Fisheries Commission voted, more than a year ago, to initiate a new Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, striped bass anglers have been concerned with how the new document would impact the health of the striped bass stock.

The report of a so-called “Work Group,” assembled prior to the August 2020 Atlantic Striped Bass Management Board meeting, created cause for concern, as it emphasized

“the themes of stability [of management measures], flexibility, and consistency [as] guiding principles for future management changes.”

Such concern was warranted, as stable regulations, and giving managers the flexibility to act or refrain from acting in response to threats to the stock, are not compatible with the sort of nimble management system that is quick to adopt measures designed to keep a small problem from festering into a crisis.  (Coastwide consistency in management measures, on the other hand, is a good idea, which makes it easier for biologists to compute the impact of such measures, and also prevents one or two states from shifting some part of their conservation obligations onto the shoulders of their neighbors).

The Management Board released the Public Information Document for Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass last February, and the response was extremely gratifying.  Over three thousand stakeholders took the time to comment in writing or at on-line hearings, and another 500 or so attended the hearings but chose not to comment.  Comments overwhelmingly favored conserving the striped bass resource; with very few exceptions, they called for maximizing striped bass abundance, not striped bass landings.

As a result of such strong stakeholder sentiment, the Management Board, at its May meeting, removed most of the bad proposals from future consideration.  The biomass target would not be reduced, nor would the fishing mortality target be increased.  The goals and objectives of the management plan would remain unchanged.  An overfished stock must still (so the plan says) be rebuilt in no more than 10 years.

The recreational striped bass fishing community was, for the most part, pleased with the meeting’s outcome.

At that point, it became the Atlantic Striped Bass Plan Development Team’s job to put together a draft Amendment 7 that addressed the remaining options:  Protecting the large 2015 year class, reducing recreational release mortality, restricting the use of conservation equivalency, and reviewing the “triggers” that, if tripped, would require the Management Board to act to protect the stock.

Although I’ve missed one or two, I have listened in on most of the Plan Development Team meetings, and can state without reservation that the PDT is working diligently and well to address those four issues.  They have come up with some very good ideas for protecting the 2015s, and maybe the 2017 and 2018 year classes as well.  While I don’t agree with all of their conservation equivalency and recreational release mortality decisions, I can’t deny that they’ve thought long and hared before coming up with their proposals, which will ultimately be debated and decided upon by the Management Board.

All things considered, thanks to the work of the Plan Development Team, Amendment 7 has the potential to champion a new and significantly improved era of striped bass management.

But like one of the best-known champions in Western mythology, it has a weak spot.  An Achilles’ heel.

That is the section which will deal with management triggers, for if the Management Board makes the wrong decisions there, much of the good work could be for naught.

The current management triggers

The management triggers determine whether the Management Board must take action to confront a potential threat to the striped bass stock.  Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, currently lists five such triggers:

1)      If the Management Board determines that the fishing mortality threshold is exceeded in any year, the Board must adjust the striped bass management program to reduce the fishing mortality rate to a level that is at or below the target within one year.

2)     If the Management Board determines that the biomass has fallen below the threshold in any given year, the Board must adjust the striped bass management program to rebuild the biomass to the target level within [no more than 10 years].

3)     If the Management Board determines that the fishing mortality target is exceeded in two consecutive years and the female spawning stock biomass falls below the target within either of those years, the Management Board must adjust the striped bass management program to reduce the fishing mortality rate to a level that is at or below the target within one year.

4)     If the Management Board determines that the female spawning stock biomass falls below the target for two consecutive years and the fishing mortality rate exceeds the target in either of those years, the Management Board must adjust the striped bass management program to rebuild the biomass to a level that is at or above the target within [no more than 10 years]

5)     The Management Board shall annually examine trends in all required Juvenile Abundance Index surveys.  If any JAI shows recruitment failure (i.e., JAI is lower than 75% of all other values in the dataset) for three consecutive years, then the Management Board will review the cause of the recruitment failure (i.e., fishing mortality, environmental conditions, disease, etc.) and determine the appropriate management action.  The Management Board shall be the final arbiter in all management decisions.

Triggers 1 and 2 address crisis situations; they only trip if the striped bass stock is overfished or experiencing overfishing.

Triggers 3 and 4 address pending problems; fishing mortality is rising too high, and female spawning stock biomass is falling too low, but there is still sufficient time to address the issues before a crisis occurs.

Trigger 5 is a sign of future trouble; recruitment has fallen far too low for three consecutive years, presaging a future drop in spawning stock biomass.  However, this trigger can trip even though, to a casual eye, the stock appears healthy, with both fishing mortality and biomass hovering at or near their target levels.  This is the situation we faced in the late 1970s, when the Maryland Juvenile Abundance Index began to crash but, because there was still an abundance of large bass around, neither most fishermen nor most fishery managers were willing to admit that we were on the road to what became a stock collapse that continued well into the ‘80s.

The Plan Development Team has crafted a number of options that will be considered as replacements for each of the existing management triggers.  Most would inject additional delay into the management process (although, in each case, maintaining status quo remains an option).  Let’s look at them one at a time.

Proposed fishing mortality triggers raise concerns

With respect to Management Trigger 1, the PDT offered two options:  Maintaining the status quo, or replacing the current trigger with one that is only tripped if the three-year average fishing mortality rate exceeds the threshold.  In other words, the proposed option could allow the striped bass stock to experience overfishing for three consecutive years before the Management Board would have to bestir themselves to address the problem; during those three years, while the Board did nothing, the spawning stock biomass would, presumably, decline.

At least one PDT member objected that any such trigger would, of necessity, create a new definition of “overfishing” (currently, overfishing occurs if, at any time, fishing mortality exceeds the fishing mortality threshold).  However, Max Appelman, NOAA Fisheries’ representative on the PDT, disagreed, correctly observing that

“The stock may be experiencing overfishing, but the Board doesn’t necessarily have to take action, depending on what the triggers are.”

That statement sums up, in a single sentence, why changing the management triggers could undercut the effectiveness of Amendment 7 and the ASMFC’ striped bass management plan.  It admits that even if overfishing occurs, the Management Board could sit back and do nothing, at least for three years.

That could only do harm to the stock.

Compare the proposed change to Management Trigger 1, and its impact on the Management Board’s actions, to the imperative language of the Magnuson-Stevens Fishery Conservation and Management Act’s National Standard 1:

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

That directive is amplified in Section 303(a) of Magnuson-Stevens, which reads

“Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall contain the conservation and management measures…which are necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks…  [emphasis added; internal numbering and formatting omitted]”

Amending a management plan to explicitly permit overfishing to continue for up to three years would hardly comply with such mandate.

Having said that, we must concede that neither Magnuson-Stevens nor any similar statute currently governs the actions of the ASMFC, which is free to allow overfishing if it chooses to do so.  Still, it’s impossible not to observe the current difference between Magnuson-Stevens and the Atlantic Coastal Fisheries Cooperative Management Act, which enables the ASMFC’s to adopt coastwide management plans.  

The former sets clear, legally-enforceable standards for fishery management actions, which place the health of fish stocks above all other considerations; the latter is largely an exercise in herding cats, which helps the ASMFC get all of the states headed in the same direction, but does not dictate what that direction must be.  That difference goes a long way toward explaining the ASMFC’s continued lack of success in rebuilding fish stocks and maintaining such stocks at sustainable levels in the long term.

The debate over striped bass management triggers illustrates why that matters.

The Plan Development Team offered many more options to replace Management Trigger 3. 

Max Appelman called Trigger 3

“unique and very conservative,”

because it required action when fishing mortality rose above the target (provided that spawning stock biomass declined at the same time), while most fishery management plans, including those drafted pursuant to Magnuson-Stevens, only require new management measures when overfishing actually occurs (the same can be said of Management Trigger 4, which relates to the biomass target). 

While that’s true, and should provide the PDT and Management Board with a little more freedom to rethink this trigger, it should also be noted that federal fishery managers are required to set annual catch limits, based on stock size, each year, and adopt management measures that should prevent such limits from being exceeded.  The ASMFC does not impose recreational harvest limits on the striped bass fishery, and thus fishing mortality rates that hover just below the overfishing threshold can continue for years at a time.

One of the things that the Plan Development Team proposed was amending Management Trigger 3 so that no action was needed unless both fishing mortality rose above its target, and spawning stock biomass fell below target, for two consecutive years. 

The other proposals all decoupled fishing mortality from biomass, which seemed to be a good idea to many on the PDT, although it could be argued that by keeping them coupled, the trigger isn’t tripped unless it can be demonstrated that excessive fishing mortality might be causing a decline in biomass.  Other proposals would defer action unless fishing mortality exceeded its target for three years, or a five-year average of fishing mortality exceeded the target; yet another would eliminate any trigger related to the fishing mortality target.

The latter action would undoubtedly be a mistake, as it would lock the Management Board into a continuing pattern of crisis management, in which it fails to take any action until overfishing occurs.  

And when overfishing occurs, or when Management Trigger 3 is tripped, the Plan Development Team is proposing to drag out the process of correcting the problem, with options that would allow the Management Board two or three years to reduce mortality to target. 

That means, depending on the measures ultimately selected by the Management Board, overfishing could continue for three years before the Board took any action, and then the Board could have another three years before it reduced fishing mortality to the target level; somehow, the current Management Trigger 1, which requires overfishing to be ended and fishing mortality to be reduced to target within 1 year, would seem much better for both the bass and those who seek them.

Proposed biomass triggers could bring improvements

A similar pattern played out with the spawning stock biomass triggers although, taken as a whole, the changes to the biomass triggers were more benign; a few proposals would make things better than they are today.

The most significant of those would address the implementation of a rebuilding plan. 

The current Management Triggers 2 and 4, when they are tripped, require the Management Board to adopt a plan to rebuild the stock within 10 years, but never state when such plan must be implemented; thus, even though Trigger 2 was tripped in May 2019, and the Management Board has not yet implemented a rebuilding plan, it is probably not yet in violation of the explicit terms of Amendment 6.  The Plan Development Team’s proposal to require that a rebuilding plan be implemented within two years would both set a firm deadline for action and emulate the deadline that currently applies in federally-managed fisheries.

The PDT’s proposal to replace the current Management Trigger 4, which is more conservative than anything required by Magnuson-Stevens, with a requirement that rebuilding be initiated if biomass is below target and a stock assessment predicts that there is at least a 50% probability that the striped bass will become overfished within three years, would also be a step in the right direction, and would even be somewhat more conservative than a similar requirement in Magnuson-Stevens. 

The other proposed changes to Triggers 2 and 4 possess far less virtue.

One option would eliminate Management Trigger 2 altogether, leaving no trigger that addresses an overfished stock, and instead rely on the Management Board acting after Management Trigger 4 is tripped, which would be a more conservative approach, since Trigger 4 is based on the biomass target, and not the lower threshold.  That might be the right way to go, since it would seem to guarantee swifter action, provided that the Management Board took prompt action if the Trigger 4 was tripped.  

Another Trigger 4 proposal would require a rebuilding plan if the biomass fell below target for two or possibly three years, while a third would require biomass to fall below target for two years, and the 3-year average of fishing mortality to rise above target as well, before action need be taken.

Depending on the options selected, new spawning stock biomass triggers could make things either better or worse fof the bass; still, the opportunity to improve the management system is there.

Proposed recruitment triggers hold promise

Finally, the Plan Development Team provided some proposals to make Management Trigger 5, the recruitment trigger, more effective.

The current recruitment trigger sets a very high bar.  Even though striped bass have seen periods of poor recruitment since 2003, the current trigger was tripped only once during that period.  A proposed new trigger, deemed to be of “moderate sensitivity,” would be tripped if a juvenile abundance index for any of the four “core” producer areas fell within the lower 25% of all values for the period1992-2006; if that trigger had been in place since 2003, it would have been tripped three times.  A second proposed new trigger, deemed to be of “high sensitivity,” would be tripped if a core juvenile abundance index fell below the median value for the period 1992-2006 for three consecutive years; that trigger would have been tripped most often—six times since 2003.

The question is what managers need to do when Trigger 5 is tripped, for unlike triggers 1-4, Management Trigger 5 does not reflect the current health of the stock. 

Because there striped bass recruitment is primarily driven by environmental conditions in the spawning rivers, and not by the size of the spawning stock, poor recruitment can occur even when spawning stock biomass and fishing mortality are both around their target levels.  Instead, the recruitment trigger is a warning that, perhaps six or seven years in the future, poor recruitment will lead to a decline in the spawning stock.  The Atlantic Striped Bass Technical Committee noted that

“Management response options are intended to reduce fishing pressure as weak year classes enter the population.”

The Plan Development Team came up with a number of options to address a low-recruitment scenario, and while they differed in their particulars, all called for managers to reduce fishing mortality in response to low recruitment; one would require rebuilding the spawning stock, should it fall below its target, on the assumption that recruitment would remain low. 

In addition, the lower fishing mortality rate adopted in response to low recruitment would continue in effect until the next stock assessment was completed; as the Technical Committee’s Katie Drew pointed out, flipping back to a higher fishing mortality rate as soon as then 3-year recruitment value improved would help neither the striped bass stock nor the fishery, for the low-recruitment years would continue to impact the stock for some time, while it would take a few years for the new, stronger year classes to fully recruit into the fishery.

Amendment 7’s Achilles’ heel

The trick, in setting management triggers, is to avoid injecting additional delay into a management system that is already too slow to respond to threats to the stock.

Opportunities for delay abound.  

Some have already been described in the proposed changes to Management Triggers 1 and 3.  Others arise out of worries that managers might have to deal with too many triggers being tripped simultaneously.  

We have already seen that occur twice; first in 2014, when Management Triggers 3 and 4 were tripped by the 2013 stock assessment, and again in 2019, when the 2018 stock assessment tripped Management Triggers 1 and 2.

In both cases, the Management Board was obligated to reduce fishing mortality to the target level within 1 year, and rebuild the female spawning stock biomass target in no more than 10.  And in both cases, the Management Board failed to fully live up to its obligations; while it successfully reduced fishing mortality within the required period, it never implemented a 10-year rebuilding plan.

I have heard members of the Plan Development Team challenge that claim and assert that, because reducing fishing mortality to target will initiate rebuilding, the Management Board did their job.  However, such arguments miss an important point.  Management Triggers 2 and 4 do not require the Management Board to rebuild the stock in 12 or 13 or more years, or even at some uncertain point in the future.  The language of the triggers gives the Management Board no discretion to drag out rebuilding; rather it clearly states that the Board “must” modify the management program to rebuild the stock in no more than ten years.

And that, the Management Board has, to date, failed to do.  It has never produced a plan that is likely to rebuild the stock in ten years or less.  

To address the perceived problem of multiple management triggers being tripped within a short time of one another, the Plan Development Team is proposing a number ways to justify the Management Board sitting on its hands and injecting more delay into the management process.

The PDT seems to be worried that too many changes to the management plan could be required if a number of management triggers were tripped within a short period of time.  But is that really a valid worry?  Amendment 6 was adopted in 2003, and in the 18 years between then and today, management triggers were tripped only twice, in 2014 and 2019, in both cases by benchmark stock assessments that revealed real and serious threats to the striped bass stock. 

Two new management documents in an 18-year span hardly represent excessive change.

A comment was made at the most recent PDT meeting that, in addition to Addendum IV in 2014 and Addendum VI in 2019, the Management Board and ASMFC staff had to work on three other management documents—an Addendum V that never went out to public comment, the pending Amendment 7, and an Addendum VII that is also being drafted right now. 

But it’s important to note that none of those three documents can be attributed to a management trigger; instead, they were voluntarily initiated by the Management Board.  

Addendum V was initiated at the behest of Michael Luisi, the Maryland fishery manager, who was trying to squeeze more blood out of the striped bass stone by relaxing management measures after an initial analysis of Addendum IV’s impacts showed a 2015 fishing mortality rate of 0.16, slightly below the fishing mortality target of 0.18; Luisi was also among the most insistent voices calling for the Amendment 7 process to begin.  And Addendum VII was largely driven by Delaware’s desire to increase its commercial quota.

Neither Addendum V, Amendment 7, nor Addendum VII can be attributed to a tripped management trigger, and none of the three were initiated to address a threat to the striped bass stock; all were attempts to increase landings for someone. 

Instead of seeking ways to defer management actions needed to protect the stock, perhaps some members of the Management Board should pay more attention to the needs of the resource, rather than persistently trying to up their states’ kill.  That would certainly lessen the workload of the Board.

In the end, delaying needed management action is always a bad idea.  Whether that delay comes in the form of an amended management trigger, that pushes off the time for management action until the stock has a chance to decline a bit more, or whether it comes in the form of a formal deferral intended to ease the burdens on the Management Board, it can never to the striped bass any good.

It is impossible to overfish a stock back to health, and it is difficult to rebuild an overfished stock without a clearly defined rebuilding plan, that allows managers to gauge the state of the stock against established rebuilding benchmarks, and will warn if more restrictive measures are needed to timely achieve the rebuilding goal.

In the hearings held on the Public Information Document last spring, stakeholders made it clear that they wanted to see a more rapid management response; they already believed that the Management Board was moving too slowly, and would not be amenable to more delay.

Right now, the draft Amendment 7 being crafted by the Plan Development Team seems to have the potential to improve the way striped bass are managed.  But the Management Board can cut easily cripple Amendment 7’s potential.

If it votes for more delay.