MARINE FISHERIES: THE ATTACK OF THE GADGETEERS

 

When he published A Sand County Almanac in 1949, pioneering ecologist Aldo Leopold observed,

“Then came the gadgeteer, otherwise known as the sporting-goods dealer.  He has draped the American outdoorsman with an infinity of contraptions, all offered as aids to self-reliance, hardihood, woodcraft, or marksmanship, but too often functioning as substitutes for them.  Gadgets fill the pockets, they dangle from neck and belt.  The overflow fills the auto-trunk and also the trailer…

“I have the impression that the American sportsman is puzzled; he doesn’t understand what is happening to him.  Bigger and better gadgets are good for industry, so why not for outdoor recreation?  It has not dawned on him that outdoor recreations are essentially primitive, atavistic; that their value is a contrast-value; that excessive mechanization destroys contrast by moving the factory to the woods or to the marsh.  The sportsman has no leaders to tell him what is wrong.  The sporting press no longer represents sport; it has turned billboard for the gadgeteer…I do not pretend to know what is moderation, or where the line is between legitimate and illegitimate gadgets.  Yet there must be some limit beyond which money-bought aids to sport destroy the cultural value of sport…our tools for the pursuit of wildlife improve faster than we do, and sportsmanship is the voluntary limitation in the use of these armaments.  It is aimed to augment the role of skill and shrink the role of gadgets in pursuit of wild things.”

When he wrote those words, Leopold lived in Wisconsin, so he viewed outdoor recreation from an inlander’s perspective; I don’t recall that he ever wrote of the ocean.  When he wrote of sportsmanship, he wrote as someone who pursued deer and ducks, and perhaps trout and other freshwater fishes, and his words rang true for what was happening in his native lands during mid-20^th Century.

Here on the coast, things were a little different, at least for a while.  Saltwater angling, as a sporting enterprise, was not as well established as hunting or freshwater fishing back then.  Certainly, a lot of people fished but, with the exception of well-heeled sportsmen who sought tuna and marlin and swordfish out in blue water, and a handful of others who pursued tarpon and bonefish along southern shores, saltwater fishing was largely a food-gathering affair; there was little regulation, and it was perfectly acceptable, and perfectly legal, for the fisherman who caught more fish than he needed to sell his excess catch at a local market.

Catch and release was virtually unknown and, outside of the rarefied world of big-game tournaments and world record catches, concepts of sportsmanship and ethics were rarely a part of the conversation.

Slowly, such attitudes began to change.  While a lot of fish were still being killed and sold by ostensibly “recreational” fishermen, some anglers who pursued inshore species such as striped bass, red drum, and snook started expressing concern for the future of marine gamefish.  Thus, the Connecticut fishing report in the August 6, 1970 edition of The Long Island Fisherman (the publication that eventually spawned today’s local editions of The Fisherman magazine; in 1970, there was only one edition that focused on Long Island, but also provided some Connecticut and New Jersey coverage) ended with a warning:

“Tackle dealers are conservation minded, and it was no surprise to hear most of them had had it with the current bass run.  Too much of a good thing can be dangerous, and if you don’t believe it, just realize that most stripers over 30 lbs. are cows, and that a 40 lb. fish produces 5,000,000 million eggs in a season.  Multiply that by the amount of fish this size or close to it taken this year, or even reported in this column, then add in the nine (so far) reported found floating in the Sound with treble and Z-Nickel or stainless hooks in them, and you seriously damage the future of our fishing,,,”

As the striped bass population began to move toward eventual collapse in the late 1970s, many similar comments appeared in the outdoor press.  Fisheries conservation was viewed as a legitimate concern of both outdoor journals and outdoor journalists.

And when it came to the outdoor press, if you were a saltwater fisherman back then, you only had one national magazine that catered to your interests, and that was Salt Water Sportsman.  In the early ‘70s, its original leaders were still in command, with Hal Lyman serving as publisher while Frank Woolner filled the editor’s slot.  They put out a quality product, attracted quality writers, and had one surprising rule:  Products could not be mentioned by name in a story.  It was OK to show the picture of a plug hanging out of a fish’s mouth, or to show an angler fishing with a particular rod or reel, but mentioning the name of a product was strictly forbidden.

There, at least, Aldo Leopold’s observations about the sporting press no longer representing sport, and instead serving as a billboard for the gadgeteers, did not hold true.

Fast forward to today, or at least to the current century, and think about how much has changed.  Not only do Leopold’s observations about the sporting press now apply, in full force, to the marine angling world, but the gadgeteers have gone farther, attempting to control the way saltwater fish are managed, in order to promote the sale of their products.

It’s something that we’re not supposed to talk about, or even acknowledge.  If any writer challenges, or even questions, the industry’s efforts to shape fisheries policy, advertisers will quickly demand that magazines no longer publish such writer’s work.  And magazines will, for the most part, bend to such demands.

That’s something that I know about first-hand. 

About ten years ago, I got a message from someone who, from what I could tell, was associated with a well-known company in the fishing industry.  He questioned my position on a local fisheries issue; after we both spent some time exchanging thoughts, the other guy finally got to his core message:

“So how do you reconcile your stance with the advertisers who support your writing?

“…Your stance is not popular with a lot of folks on the rec side who are also well informed and whose businesses support many.

“You are certainly entitled to your position, but it galls some of us quite a bit that you promote it while being active in a recreational fishing publication.  That’s not opinion, it’s a fact.”

I basically told the guy where he could shove his threats, although in far nicer words, knowing as I did that I’d probably find myself on the pariah list, and findi it a lot harder to get published, in the not-too-distant future.

That turned out to be the case; other conservation-minded writers I know have been subject to the same sort of industry censorship, from manufacturers that view editorial content as nothing more than an extension of their advertising campaigns.  

Such censorship is nothing new. 

Twenty years ago, when the Atlantic States Marine Fisheries Commission held a public hearing on the then-proposed Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass here in New York, the publisher of a weekly angling newspaper found the cojones to reflect the views of his readers, rather than those of his advertisers, in his testimony.  Although he made it very clear that the comments he made reflected a poll of his readers, and not his own views, he walked into his office the next morning to find his paper the target of an advertising boycott that caused him significant loss. 

He never challenged the industry again.

For one doesn’t challenge the tackle or boating industries, which have no interest in and no desire for a free and informed debate on issues that impact their bottom line, and expect to walk away unscathed.

Nonetheless, from my point of view, it's still far better to be a pariah than a whore…

If the industry—the gadgeteers—spent all of their time and effort on boycotting writers and publications who chose to oppose their political positions, the situation might not be too bad.  In this digital age, there are plenty of ways to reach anglers that don’t require advertisers’ imprimatur.

But what we have seen is that the gadgeteers have now gathered together to assault the foundation of the federal fishery management process, the science- and data-driven management measures mandated by the Magnuson-Stevens Fishery Conservation and Management Act.

That effort began in early 2014, after a report titled “A Vision for Managing America’s Saltwater Recreational Fisheries,” authored by a bogus “Commission on Saltwater Recreational Fisheries Management,” which just happened to be co-chaired by the owner of one of the nation’s largest fishing tackle retail businesses and the owner of a company that makes fishing boats, was released at the annual meeting of the American Sportfishing Association, the primary trade organization for the fishing tackle industry.

After explaining that anglers pay excise taxes that support conservation, that the number of saltwater anglers has “experienced tremendous advances” (i.e., has increased substantially) in the past 25 years, and that those anglers spent $27 billion on fishing tackle, the report complained that

“in the midst of our success in rebuilding marine fisheries and the growth in saltwater recreational fishing, the federal fisheries management system has not adapted to meet the needs of this economic and conservation powerhouse.”

Reading a little further makes it clear that the gadgeteers were concerned that the existing federal fishery management system, which was based on hard quotas intended to prevent overfishing, wasn’t providing the burgeoning numbers of recreational anglers will enough opportunity to kill fish (such ability to catch and kill fish being euphemized as “access” to fishery resources), and so wasn't maximizing the gadgeteers’ opportunity to sell their wares.

They thus wanted to replace hard quotas with the sort of “soft” harvest targets that allowed the striped bass stock, which had been fully rebuilt after it collapsed in the late 1970s and early 1980s, to become overfished once again, to allocate a larger percentage of fish to the recreational sector, and to delay rebuilding overfished stocks in order to reduce “socioeconomic impacts” (meaning reduced profits for the gadgeteers), arising out of such rebuilding.

The initial upshot of the report was the introduction of the Modernizing Recreational Fisheries Management Act in 2017.  Such bill, as originally written, would have allowed the recreational fishing sector to escape much of the conservation burden associated with fishery management.  It was heavily promoted by the Center for Sportfishing Policy, a sort of Gadgeteers’ Alliance that includes the American Sportfishing Association, National Marine Manufacturers Association, and a number of other industry-affiliated and anglers’ rights organizations.  The Center described the legislation, which they called the “Modern Fish Act,” as a bill that

“addresses many of the recreational fishing community’s priorities including allowing alternative management for recreational fishing, reexamining fisheries allocations, smartly rebuilding fishery stocks, establishing exemptions where annual catch limits don’t fit and improving recreational data collection.”

To put that into straightforward, uneuphemised English, the original bill would have allowed anglers to escape the discipline imposed by annual catch limits, given them larger allocations of fish at the expense of the commercial fishing sector, delayed the rebuilding of overfished stocks, and allowed anglers to exceed science-based catch limits in order to generate higher short-term profits for the boating and tackle industries.

Fortunately, Congress—or, more particularly, the U.S. Senate—didn’t buy the gadgeteers’ story, so the bill that finally passed was a very watered-down version that preserved Magnuson-Stevens’ core principles.  Still, the fact of its passage emboldened the gadgeteers to continue their efforts to undercut effective fisheries management.

In the Gulf of Mexico, the gadgeteers continue to challenge science-based red snapper management, with the American Sportfishing Association complaining that

“Gulf anglers have experienced the benefits of state management for red snapper over the last three years.  [Author’s note:  The foregoing statement is based on a false premise, as the National Marine Fisheries Service continues to manage Gulf of Mexico red snapper in federal waters, although states are permitted to set the seasons and, within closely set parameters, the size and bag limits required to keep their anglers’ catch within federally established catch limits.]  Now, a recent decision by the Gulf of Mexico Fisheries Management Council’s Science and Statistical Committee (SSC) could put the future of state management in jeopardy.

“…the lack of a quota increase jeopardizes the highly successful state management system that was begun three years ago for private anglers and has resulted in substantially improved fishing access…”

The problem is that such “substantially improved fishing access” meant that anglers were killing a lot more red snapper, and a number of states were overfishing their allocations, triggering mandatory paybacks of the overages.  Paybacks, even if justified by the federal data, meant fewer fishing days, which meant less opportunity to sell gadgets to anglers, so…

In the mid-Atlantic, the gadgeteers' latest ploy was to suggest managing bluefish, summer flounder, scup, and black sea bass with something called a “harvest control rule” instead of hard-poundage harvest limits.  Once again, the goal was to allow anglers to increase their harvest beyond what would be deemed scientifically prudent.  

For a while, the control rule seemed to have developed real legs, and the smart money was on it passing at the June meeting of the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission.

However, such control rule was heavily criticized by the Council’s Scientific and Statistical Committee, and even the Council staff most closely associated with its development now recommends against its adoption.  While it’s not clear what the Council and ASMFC will do, the gadgeteers may end up losing on this issue, too.

But even if they do, that won’t stop them from trying again.  Gadgeteers, after all, aren’t in the business of maintaining healthy fish stocks.  They’re not being paid to be conservation advocates. 

They are in the business of making and selling as many gadgets as they can, and we’d be foolish to believe that they’ll stop their attacks on any law or regulation that gets in the way of that very profitable goal.

 

 

 

 

; 

 

 

EPA ACTION PROVIDES HOPE FOR BRISTOL BAY WATERSHED

 Yesterday, the U.S. Environmental Protection Agency issued a press release announcing a revised Proposed Determination under the Clean Water Act, which would restrict, and in some areas, completely prohibit, the discharge of dredged or fill material from the so-called “Pebble Mine” into the Bristol Bay watershed. 

The Proposed Determination is a comprehensive document.  More than 300 pages long, it includes scientific and other information collected over the course of nearly twenty years.  The potential impact of the Proposed Determination is spelled out in its very first paragraph:

“The U.S. Environmental Protection Agency (EPA) Region 10 is publishing for public comment this proposed determination (2022 Proposed Determination) to prohibit and restrict the use of certain waters in the Bristol Bay watershed as a disposal site for the discharge of dredged or fill material associated with mining at the Pebble deposit, a large ore body in southwest Alaska.  EPA Region 10 is exercising its authority under Section 404(c) of the Clean Water Act (CWA)…and its implementing regulations at 40 Code of Federal Regulations (CFR) Part 231 because of the unacceptable adverse effects on anadromous fishery areas in the Bristol Bay watershed that could result from discharges of dredged or fill material associated with such mining.  Development of a mine at the Pebble deposit and such a mine’s potential effects on aquatic resources have been the subject of study for nearly two decades; the 2022 Proposed Determination is based on this extensive record of scientific and technical information.  The scope of the 2022 Proposed Determination applies only to specified discharges of dredged or fill material associated with mining in the Pebble deposit.”

If a Final Determination substantially similar to the Proposed Determination is eventually issued, the long-debated Pebble Mine might finally die a well-deserved death, and the health of the Bristol Bay watershed might be maintained.

And that would be a good thing for, as the Proposed Determination notes,

“Alaska’s Bristol Bay watershed…is an area of unparalleled ecological value, hosting salmon diversity and productivity unrivaled anywhere in North America…The Bristol Bay watershed provides intact, connected habitats—from headwaters to ocean—that support abundant, genetically diverse wild Pacific salmon populations.  These salmon populations, in turn, help to maintain the productivity of the entire ecosystem, including numerous other fish and wildlife species.

“The Bristol Bay watershed’s streams, wetlands, and other aquatic resources support a more than 4,000-year-old subsistence-based way of life for Alaska natives, as well as world-class, economically important commercial and sport fisheries for salmon and other fishes.  The Bristol Bay watershed supports the world’s largest run of Sockeye Salmon, producing approximately half of the world’s Sockeye Salmon…Bristol Bay’s Chinook Salmon runs are also at or near the world’s largest, and the region also supports significant Coho, Chum, and Pink salmon populations.  Because no hatchery fishes are raised or released in the watershed, Bristol Bay’s salmon populations are entirely wild and self-sustaining…

“…The total economic value of the Bristol Bay watershed’s salmon resources, including subsistence uses, was estimated at more than $2.2 billion in 2019…The Bristol Bay commercial salmon fishery generates the largest component of this economic activity, resulting in 15,000 jobs and an economic benefit of $2.0 billion in 2019, $990 million of which was in Alaska…”

Of course, determining what is “good” often turns out to be a matter of perspective, and from the perspective of the Pebble Limited Partnership, the entity hoping to develop the Pebble Mine, the Proposed Determination doesn’t look good at all.  The Washington Post reported that

“the company behind the mine, Pebble Limited Partnership, said Wednesday that it will still work to secure a permit to dig up ore bearing gold, copper and molybdenum, used as an alloy in steel.

“John Shively, the company’s chief executive, said it is ‘ironic’ that the Biden administration would block a domestic source of copper, a crucial material for renewable energy, when it has set a goal of eliminating the nation’s contribution to global warming by the middle of the century…

“Pebble Limited Partnership argues that its hamstrung project would have created 850 direct jobs and generated more than $150 million in state and local taxes a year.

“Shively, the chief executive, pointed to a U.S. Army Corps of Engineers conclusion in 2020 that the mine would have no ‘measurable effect’ on fish populations, noting that foreign miners ‘simply do not have the same environmental standards as we do.’”

Such comments make it clear that the Pebble Limited Partnership has not given up its fight to develop the mine.  As The Washington Post also reported,

“Alannah Hurley, executive director of United Tribes of Bristol Bay, a consortium of tribal governments, called the EPA’s announcement a ‘monumental step.’

“’Our tribes have been asking for this for the last 12 years,’ added Hurley, who is Yup’ik.  But she warned that the federal government has come close to protecting these waters in the past, only to fall short.

“’We’ve been here before,’ she said.”

In fact, the fight to protect the Bristol Bay watershed from the impacts of mining has been a long, harrowing roller coaster ride, which has seen the fortunes of both the fishermen, natives, and conservationists, as well as the Pebble Limited Partnership, wax and wane.  

In 2014, the Obama administration acted to restrict mining in the watershed, but didn’t complete such action before President Obama left the White House.  Pebble Limited Partnership had sued to protect its interests, and one of the Trump administration’s first significant acts was to settle such lawsuit by agreeing to let the Partnership apply for the needed permits.  However, conservationists responded by bringing a lawsuit of their own, arguing that the Trump administration’s settlement violated both the Clean Water Act and the Administrative Procedures Act, which governs federal rulemaking.  After significant legal debate, the trial court agreed that the Trump administration’s actions violated the applicable statutes.

While that was a win for the watershed, it came after two seemingly contradictory decisions by the Army Corps of Engineers.  In July 2020, the Corps released the final environmental impact statement for the permits.  Despite finding that the Pebble Mine would

“permanently remove approximately 99 miles of streambed habitat,”

that

“Direct effects on fish, including displacement, injury, and mortality, would occur with the permanent removal of stream habitat,”

and that

“Stream productivity…would be reduced to some degree with the loss of physical and biological inputs.  These impacts would be permanent, and certain to occur,”

the final environmental impact statement found that “under normal operations,” the activities of the Pebble Mine

“would not be expected to have a measurable effect on fish numbers and result in long-term changes to the health of the commercial fisheries in Bristol Bay.”

It looked as if Pebble Limited Partnership was certain to receive the permits needed to begin operations.  But that was before the Partnership found itself publicly embarrassed after environmental advocates, posing as potential investors in the Pebble Mine, recorded company representatives admitting that they were planning a much larger operation than the one described to the Corps of Engineers, which might continue for 160 years, instead of the publicly claimed 20, and double the mine output originally claimed.

It also turned out that a lot of important Republicans, including Donald Trump, Jr. and Trump apologist and media personality Tucker Carlson, liked to fish for salmon in the Bristol Bay watershed, and weren’t in favor of the Pebble Mine.

Whether or not such factors came into play, the Army Corps of Engineers ultimately denied the needed permits, saying that the Pebble Mine

“does not comply with Clean Water Act guidelines.”

The Pebble Limited Partnership appealed that decision to the Corps’ Pacific Ocean Division, which is headquartered in Hawaii.  Such appeal is still pending.

Thus, the Proposed Determination, while encouraging, does not guarantee that the Pebble Mine will be defeated.  The pendulum, which has already swung so many times, could still swing again.

The Marine Fish Conservation Network recently released a “Waterside Chat,” in which Tom Sadler, its deputy director, interviewed Sam Snyder of the Wild Salmon Center and Scott Hed of Businesses for Bristol Bay, and solicited their views on the Proposed Determination and what comes next for Bristol Bay.

As one might expect, both Mr. Snyder and Mr. Hed were cautiously optimistic about the future, with the emphasis on “cautiously.”  Both recognized that, with the issuance of the Proposed Determination, the Bristol Bay watershed is in about the same place as it was in the closing days of the Obama administration, which didn’t finalize the protections in time to prevent the Trump administration from undoing them.  

While the 2022 Proposed Determination is somewhat more comprehensive than its 2014 counterpart, right now, it’s just as unfinished.

As Mr. Hed observed,

“We’re happy that we’re back on track, but we can’t be satisfied with being back on track.  We’ve got to push, push, push until we reach our goal.”

He also noted that, if conservation efforts fall short of their goal once again, the consequences for the watershed could be dire.  While Pebble Mine is getting all of the media attention, about 800 square miles of mining claims have been filed for Bristol Bay region; should the Pebble Mine be approved, and the related infrastructure, including roads and a power plant large enough to supply the electrical needs of the city of Fairbanks, be built, such development will encourage others to develop other mines, which collectively will have a catastrophic impact on the watershed.

Fortunately, the conservation goals are now within sight.  The EPA will be accepting comments on the Proposed Determination through July 5, and will be holding three public hearings, including one Zoom hearing on June 16, which will give the public plenty of opportunity to show their support.

Once the public comment period is over, the EPA will draft and, eventually, issue a Final Determination regarding the discharge of dredged and fill materials into the Bristol Bay watershed.  It is critical that such Final Determination be issued well in advance of the 2024 election, to prevent it being blocked by the next administration, and to prevent Congress from overriding the regulatory action pursuant to the Congressional Review Act.

But assuming that the EPA can act with the needed dispatch, and also assuming that the courts do not intervene, there may finally be a real chance that meaningful protections for the Bristol Bay watershed will be put in place.  The Pebble Mine may, at long last, be defeated.

 

 

 

 

 

 

 

NEWEST AMENDMENT TO ASMFC'S STRIPED BASS MANAGEMENT PLAN EMPHASIZES CONSERVATION

 

On Wednesday, May 4, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board (Management Board) completed its work on Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 7).

 

Amendment 7 maintains the conservation measures adopted in earlier amendments, while embracing additional improvements to striped bass management that promote conservation and should help to ensure the success of future management actions.

 

Such a favorable outcome didn’t seem likely three years ago, when Amendment 7 was first proposed. Then, much of the impetus behind initiating a new amendment came from Management Board members who sought to change the reference points used to gauge the health of the striped bass stock, in order to lower target abundance while increasing landings. Such sentiments remained strong a year later, when a Work Group created by the Management Board not only recommended reviewing the reference points, but suggested that any new amendment be built around the “themes” of management stability, flexibility, and regulatory consistency.

 

Rebuilding the overfished striped bass stock did not appear to be among the Work Group’s recommended priorities.

Stakeholders got their first opportunity to comment on the proposed Amendment 7 after the Public Information Document for Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass was released in February 2021. They made it clear that they were far less concerned with bureaucratic concerns such as stability and flexibility than they were with seeing striped bass managed for abundance rather than for yield; they also made it clear that they were very unhappy with the Management Board’s failure to make any effort to initiate a rebuilding plan for the overfished stock.

 

The Management Board heeded the stakeholders’ message, and proposed no changes to either the reference points or to the goals and objectives of the management plan. Instead, the draft of Amendment 7 that was finally released for public review addressed only four issues. Those included proposed modifications to the so-called “management triggers” that determine when managers must respond to potential threats to the stock, strategies to reduce recreational release mortality, rebuilding the overfished stock, and modifications to the Atlantic States Marine Fisheries Commission’s use of “conservation equivalency,” a management tool which allows states to adopt regulations different from the standard coastwide measures adopted by the Management Board, provided that such state measures achieve “the same quantified level of conservation for the resource under management.”

 

Even limited to those four issues, the draft Amendment 7 was nearly 150 pages long and densely worded, facts that led to many stakeholder complaints. Nonetheless, oral and written comments were submitted by about 5,000 individuals and organizations. About 99% of those comments supported strong and effective striped bass conservation.

 

Management triggers that prevent delay

In 2003, the Management Board adopted Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 6), which included five triggers for management action. Two of such triggers tripped if fishing mortality rose too high, two tripped if female spawning stock biomass fell too low, and one tripped if an extended period of below-average spawns led to recruitment failure.

 

In the nearly twenty years since Amendment 6 was adopted, the fishing mortality triggers were tripped twice, in 2014 and 2019, causing the Management Board to adopt the management measures needed to reduce fishing mortality back to its target level within one year.

 

The biomass triggers were also tripped in 2014 and 2019. In 2014, the Management Board, on the advice of then-Fishery Management Plan Coordinator Michael Waine, ignored its clear obligation to initiate a 10-year rebuilding plan. When the stock was declared overfished in 2019, the Management Board delayed again, initiating the Amendment 7 process instead of a rebuilding plan. The Management Board has since committed to drafting a rebuilding plan once a stock assessment update is completed in October 2022; however, past delays will make it more difficult to achieve rebuilding by the 2029 deadline.

The recruitment trigger was tripped only once since 2003. That happened in 2020, after three consecutive years on very low recruitment in North Carolina’s Albemarle and Roanoke rivers. Low recruitment in Chesapeake Bay, which contributed to the stock becoming overfished, never tripped the trigger, despite recent Maryland Juvenile Abundance Indices that were every bit as low as they were during the stock collapse of the 1980s.

As part of the drive for management stability and flexibility, some Management Board members sought to inject delay into the fishing mortality triggers. They proposed allowing two years, rather than one, to reduce fishing mortality back to its target level after a trigger was tripped, and would have required a two-year average of fishing mortality to exceed the overfishing threshold, rather than just a single year of overfishing, before management action was needed.

Stakeholder comment overwhelmingly opposed such delay, and the Management Board opted against both proposals. To speed up its response to the spawning stock biomass triggers, the Management Board also approved a new proposal that requires it to adopt a ten-year rebuilding plan within two years after such a trigger is tripped.

A more sensitive recruitment trigger was also adopted, which would trip if, in three consecutive years, the juvenile abundance index for four “core” spawning areas, the Hudson River, the Delaware River, and the Maryland and Virginia portions of Chesapeake Bay, fell below 75% of the values for such index during the period 1992-2006. If such trigger had been part of Amendment 6, it would have tripped three times since 2003. Should the new recruitment trigger be tripped, Amendment 7 requires the Management Board to adopt lower, interim fishing mortality reference points, that reflect the low recruitment, and then apply the fishing mortality triggers to such reference points to determine whether action must be taken.

A trigger that only trips three times in nearly 20 years does not seem unreasonably sensitive, but the Management Board was nonetheless concerned that such trigger might trip too often, and possibly interfere with a management measure already being considered. Thus, the Management Board included language in Amendment 7 that allows it to defer action on any new management measure, if it is already working on another management action.

Such provision was contrary to strong stakeholder sentiment; about 99% of all comments opposed allowing the Management Board to defer action when a trigger was tripped, regardless of the circumstances.

Closed seasons rejected

About half of all striped bass fishing mortality can be attributed to fish that die after being released by anglers. In hopes of reducing such release mortality, the draft Amendment 7 included three proposals that would have imposed closed seasons that would, in theory, reduce recreational fishing effort.

 

One such proposal would have required each state to impose a closed season at least two weeks in length, during which even catch-and-release striped bass fishing would be prohibited, during a period when anglers in such state make most of their directed striped bass trips. The Management Board was unable to estimate the fishing mortality reduction generated by any such season, while the Atlantic States Marine Fisheries Commission’s Law Enforcement Committee stated that any no-targeting closure was completely unenforceable, as there is no way to prove that an angler was targeting striped bass and not some other species. Such considerations led the Management Board to vote against including any such closure in Amendment 7.

The Management Board also failed to approve two other proposals intended to reduce angling effort. One such proposal would have prohibited all striped bass harvest in spawning areas between January 1 and April 30; the other would have imposed a two-week no-targeting closure in such areas.

The only release mortality-related measures approved by the Management Board included a measure that banned the use of gaffs to land striped bass, and another requiring the release of any striped bass caught on bait and traditional J-hooks, instead of the circle hooks already required by the management plan. It is not clear how much either measure will reduce recreational release mortality.

Steps toward rebuilding the stock

While the Management Board intends to initiate a plan to rebuild the overfished stock in October 2022, it is not clear what form such plan might take. However, Amendment 7 contains two provisions that makes it more likely that any such plan will succeed.

The first recognizes that the recruitment of young striped bass into the population has been lower than average in recent years. It requires that, in preparing the upcoming rebuilding plan, scientists must assume that recruitment will remain at the low levels experienced between 2007 and 2020. By incorporating a low recruitment assumption into the rebuilding plan, such scientists can better ensure that the stock will be fully rebuilt by 2029.

Because 2029 isn’t too far away, the Management Board also approved a provision which allows it to fast-track the rebuilding plan, and not go through the public hearing process that is typically required before changes to the management plan may be adopted. Doing so will allow the rebuilding plan to go into effect early in 2023 while, if the normal procedures were followed, rebuilding would not begin until 2024.

Conservation equivalency reform

Conservation equivalency is one of the most controversial aspects of striped bass management, and was certainly one of the most hotly debated topics in Amendment 7. It is defined in the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Program Charter (Charter) as “Actions taken by a state which differ from the specific requirements of the [fishery management plan], but which achieve the same quantified level of conservation for the species under management.”

 

As initially conceived, conservation equivalency would allow states to tailor fishery management measures to the particular needs of their local fisheries, while still providing needed protections to the managed stock.

In practice, conservation equivalency has been abused by states seeking to escape their full share of the conservation burden. In the most recent example, the management actions originally included in Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan (Addendum VI) had a 50% probability of reducing fishing mortality to or below the target level; however, after a few states, most notably Maryland and New Jersey, adopted conservation equivalent management measures, the probability of success fell to a mere 42%, rendering Addendum VI more likely to fail than succeed.

Thus, a large percentage of stakeholders and Management Board members wanted to see conservation equivalency reforms included in Amendment 7. They got their wish. The Management Board voted to prohibit the use of conservation equivalency at any time when the stock was overfished. Because state-level recreational fishing data is less precise than coastwide data, the Management Board also adopted a precision standard that prohibited the use of any recreational data with a percent standard error (PSE) greater than 40 to calculate conservation equivalent measures.

Stakeholders wanted to prohibit the use of data with a PSE greater than 30, and a number of Management Board members, including Massachusetts’ Dr. Michael Armstrong, who made the relevant motion, agreed that, based on purely scientific considerations, a maximum PSE of 30 would have been the right way to go. The Management Board ultimately settled on the less precise standard out of fear that, particularly in smaller states, more precise data might not be available.

In an effort to address the uncertainty inherent in state level data, the Management Board also decided that states adopting conservation equivalent measures would be subject to an “uncertainty buffer,” which would lead to slightly more restrictive management measures. Such buffer would impose a 10% penalty on all conservation equivalent regulations based on data with a PSE of 30 or less (i.e., if the coastwide rules would have required a state to achieve a 20% reduction, its conservation equivalent measures would have to achieve a reduction of 22%), which would increase to a 25% penalty for conservation equivalent measures with a PSE above 30 but no higher than 40.

But the single most important reform was the Management Board’s decision to define “conservation equivalency” in Amendment 7 the same way that it is defined in the Charter: Any conservation equivalency measures adopted by a state must have the same conservation impact, in that state, as the standard, coastwide measures. While that result is seemingly mandated by the Charter, the Management Board had previously chosen to ignore the Charter’s language, and permitted states to adopt allegedly conservation equivalent measures which only achieved the coastwide, and not the state-specific, reduction.

The Management Board’s decision to allow states such as New Jersey to only achieve Addendum VI’s 18% coastwide reduction, instead of the much larger reduction imposed on such states by the coastwide rules, is the sole reason why Addendum VI had such a low probability of success. By prohibiting such abuses of conservation equivalency, Amendment 7 will make it more likely that future Management Board actions will succeed.

 

What comes next?

Once its discussions of conservation equivalency concluded, the Management Board voted to approve its final version of Amendment 7. The Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Policy Board approved the completed amendment on May 5.

Most of Amendment 7 became effective upon such approval, although the two equipment-related provisions, which ban the use of gaffs and require the release of all bass caught on bait and J-hooks, don’t need to be adopted by the states until January 1, 2023. The two rebuilding-related provisions are technically in effect right now, but will have no practical impact on striped bass management until the Management Board begins work on a rebuilding plan.

Still, the fact that Amendment 7 has been completed does not mean that the striped bass debate is over. Some issues are likely to resurface soon.

If the management measures needed to rebuild the stock by 2029 prove extremely severe, it is far from unlikely that some Management Board members will try to argue for a longer rebuilding period, despite the clear language of the management plan.

And given some comments made at the last Management Board meeting, it is also likely that some Management Board members will again argue that the current biomass target and threshold are unrealistically high, and will try to reduce them, at some not-too-distant point in the future. When that question arose on May 4, Capt. John McMurray, New York’s Legislative Proxy, asked Dr. Katie Drew, who leads the striped bass stock assessment team, whether it is possible to rebuild the stock all the way to the current biomass target. Dr. Drew answered the question in the affirmative, based on the current state of the science, but her answer won’t prevent others from asking the question again.

Even so, that debate lies in the future. Contrary to early expectations, Amendment 7 represents a step forward for striped bass conservation, and sets a firm foundation for the upcoming rebuilding plan.

Right now, stakeholders should thank the Management Board for a job well done.

-----

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

MAGNUSON-STEVENS: IS FAMILIARITY BREEDING CONTEMPT?

 

People too often take things for granted, depreciating what they have simply because it’s familiar; sometimes, things must be seen through someone else’s eyes before they are fully appreciated. That certainly seems to be true of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens).

 

When the Sustainable Fisheries Act of 1996 (SFA) became law, amending Magnuson-Stevens, Congress created something which had not been seen before. Prior to the SFA, fisheries laws, including the Fishery Conservation and Management Act of 1976, which gave birth to Magnuson-Stevens, were primarily concerned with creating, protecting, and subsidizing fishing industries.

 

Magnuson-Stevens was the first law passed by a major fishing nation that was primarily concerned with protecting the fish on which such industries depend.

For the first time, fishery managers were required to end overfishing, even if doing so caused short-term economic harm. For the first time, overfished stocks had to be rebuilt within a time certain; if biologically feasible, such rebuilding time could not exceed ten years.

Thanks to such mandates, the United States’ depleted fish stocks began to rebuild. According to the National Marine Fisheries Service (NMFS), 47 once-overfished stocks have been rebuilt since 2020. NMFS believes that, out of 460 managed stocks and stock complexes, only 49 remain overfished and 26 are subject to overfishing, although the status of some managed stocks remains unknown.

 

Despite such success, Magnuson-Stevens is frequently criticized. Dr. Brian Rothschild, a biologist sympathetic to the commercial fishing sector, has argued that federal regulators have taken an “unnecessarily hard-line, inflexible approach” to the law’s provisions, “that wastes fisheries resources, minimizes landings, and kills jobs.”

 

However, most criticism of Magnuson-Stevens comes from the recreational fishing industry. In 2009, commercial and recreational fishermen staged a rally at the Capitol Building in Washington, hoping to convince Congress to weaken the law. Jim Hutchinson Jr., then the managing director of the Recreational Fishing Alliance, an “anglers rights” group, claimed that “This is a much bigger issue than any one state issue or individual grievance. Whether it’s our restrictive fluke fishery in New York, the arbitrary closure of state waters for our anglers in California or the shutdown of red snapper and amberjack down South, our community has been divided by preservationist tactics for too long. It’s time to unite the claims in defense of our coastal heritage and traditions.”

 

That effort failed, but the recreational fishing industry continued its efforts to undercut the law.

In 2014, a coalition of industry-affiliated organizations released “A Vision for Managing America’s Saltwater Recreational Fisheries,” a document which argued that,

While the Magnuson-Stevens Act has produced a demonstrable improvement in fish stocks, we now need to manage that success in a way that fully develops saltwater recreational fishing’s economic, social and conservation benefits to our nation…The NMFS should manage recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas. This strategy has been successfully used by fisheries managers in the Atlantic striped bass fishery, which is the most sought-after recreational fishery in the nation. By managing the recreational sector based on harvest rate as opposed to a poundage-based quota, managers have been able to provide predictability in regulations while also sustaining a healthy population.

Events later demonstrated that the Atlantic States Marine Fisheries Commission’s (ASMFC) use of “soft” management targets, rather than hard-poundage quotas, didn’t work quite as well as the fishing industry groups claimed; a benchmark stock assessment released in 2019 revealed that such management had allowed the once-thriving striped bass stock to become overfished, and that such stock was also experiencing overfishing.

 

Nevertheless, the industry pressed forward, convincing Rep. Garret Graves (R-LA) and Sen. Roger Wicker (R-MS) to sponsor the Modernizing Recreational Fishery Management Act, which in its initial version would have largely relieved the recreational sector of the burdens of science-based fisheries management, and allowed federal managers to adopt the same ineffective management approaches that failed the striped bass.

 

Although such legislation was signed into law late in 2018, the version that made it through Congress left the key conservation provision of Magnuson-Stevens intact, and merely gave regional fishery management councils “the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulation, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component.”

Based on such language, six of the same organizations submitted a letter to the Mid-Atlantic Fishery Management Council, which requested that such council replace the current hard-poundage catch limits for the recreational fishery with a “control rule” that held anglers to less rigid landings targets. In response to such letter, and to follow-up conversations, the council and the ASMFC developed a “harvest control rule” that, if adopted, will radically change how the recreational summer flounder, scup, black sea bass, and bluefish fisheries are managed.

 

Depending on the form that such harvest control rule takes, it could largely or completely divorce recreational management measures from both the annual catch limit and the recreational fishery’s actual landings. Whether such control rule would comply with the legal standards established in Magnuson-Stevens remains a debatable issue.

 

Yet, as fishermen in the United States, and some NMFS employees, seek to move away from Magnuson-Stevens’ demonstrably successful management standards, other nations have been moving their management standards closer to those of Magnuson-Stevens.

The European Union (EU) adopted a common fisheries policy, which became effective on January 1, 2014. Although less prescriptive than Magnuson-Stevens, at least with respect to conservation issues, the policy sought to end overfishing and limit harvest to the maximum sustainable yield for each managed stock by 2020. Rules established pursuant to the policy require that a total allowable catch (TAC) for most managed stocks be established each year, although for certain deep-water species, such TAC need be set every two years. According to the EU, each member nation is “responsible for assuring that the quotas are not exceeded. When an EU country’s available quota for a species is exhausted, it must close the fishery.”

 

While critics note that the common fisheries policy has, in practice, been irregularly applied, and that many stocks are still experiencing overfishing, The Pew Charitable Trusts observed that “decision-makers have continued to bring fishing pressure overall closer to scientific advice, and fish populations have responded to these improvements, on average growing in size. This growth, in turn, has helped to bolster fishing industry profits, with the Commission’s data showing average profitability close to all-time highs.”

 

Thus, although the EU still hasn’t realized the level of success achieved by the United States subsequent to passage of the SFA, adoption of science-based management measures in many of its fisheries has it moving in the right direction. Important European fish stocks, and European fishermen, are benefitting from the new management approach.

Canada took longer to adopt such science-based measures, but once it did, they were more rigorously applied.

Canada’s requirements for conservative, science-based management aren’t found in that nation’s Fisheries Act, but in rebuilding regulations that were only published on April 4, 2022. Such regulations provide that any rebuilding plan required by the Fisheries Act include, among other things, “measurable objectives aimed at rebuilding the stock, including a target for rebuilding the stock; the timelines for achieving the objectives;…a method to track progress toward achieving the objectives; and a schedule for periodic review of the plan in order to assess progress in achieving the objectives and to determine whether an adjustment to the plan is needed. [internal numbering and formatting omitted]”

The rebuilding regulations, like Magnuson-Stevens, require that a rebuilding plan be completed within two years although, unlike United States law, the Canadian regulations allow that time period to be extended by as much as 12 months if such extension is justified, in writing, by the Minister of Fisheries.

The regulatory impact analysis statement that accompanies the rebuilding regulation notes that “a number of commercially significant marine fish stocks in Canada are at low levels. Others are at risk of decline…Preventing their decline by managing them sustainably will preserve important ecosystem functions and improve economic outcomes for the fish and seafood sector.”

It also refers to another policy document, “A fishery decision-making framework incorporating the precautionary approach” (Precautionary Approach), which incorporates many of the principles found in Magnuson-Stevens, including reference points that denote a healthy and an overfished stock (respectively deemed the Upper Stock Reference Point and the Limit Reference Point), the need to consider uncertainty when calculating such reference points, and aggressively rebuilding stocks which have fallen below the Limit Reference Point, and are in the so-called “critical zone.”

 

Pursuant to the Precautionary Approach, when a stock is “In the critical zone, management action must promote stock growth and removals from all sources must be kept to the lowest possible level until the stock has cleared this zone. There should be no tolerance for preventable decline. When a stock has reached the critical zone, a rebuilding plan must be in place with the aim of having a high probability of the stock growing out of the critical zone within a reasonable timeframe.”

Such requirements are arguably even more stringent than those imposed by Magnuson-Stevens; the mandate that “removals from all sources must be kept to the lowest possible level” led to Canada’s recent decisions to completely shut down fisheries for Atlantic herring and Atlantic mackerel, and reduce landings of Pacific herring.

 

Other nations, including Canada and the member states of the EU, are beginning to understand that it is impossible to maintain healthy fisheries in the long term without maintaining equally healthy fish populations; to better ensure the health of fish stocks, they are adopting some of the same precautionary, science-based management principles that are found in Magnuson-Stevens.

It is thus both ironic and dismaying that, just as foreign jurisdictions are beginning to adopt fishery management approaches that more closely resemble those that the United States embraced twenty years ago, some U.S. fishermen, legislators, and fishery managers are seeking to undermine Magnuson-Stevens, so that federal fishery managers may adopt the sort of shortsighted fishery management measures that have already failed elsewhere.

-----

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