COMBATING BYCATCH IN LARGE-SCALE FISHERIES: COULD CIVIL RESTITUTION PLAY A ROLE?

 

A day or two ago, I received a press release prepared by Omega Protein, the sole remaining industrial-scale menhaden harvester on the Atlantic seaboard.  The release began

“Yesterday, Monday, July 25, while fishing for menhaden, an Ocean Harvesters vessel fishing on behalf of Omega Protein had a rare and unexpected encounter with a school of red drum.

“Menhaden fishing is performed using spotter aircraft whose pilots are experienced in identifying schools of various species from the air.  When a spotter pilot sees a school of menhaden, they direct the fishing vessels on the water to that location where they will surround the school with a net called a ‘purse seine…’  When a menhaden spotter pilot sees a school of fish that they identify as red drum or another game fish species, they will advise their boats to avoid that location, and as a courtesy, will often radio recreational captains in the area with the location of the sport fish.

“On Monday, the Ocean Harvesters crew made a set approximately 1 mile offshore of Kiptopeke State Park.  While bringing the menhaden aboard the vessel, the captain attentively noted a group of red drum in the net.  He immediately instructed the crew to open the net and release the fish.  The crew observed that many fish swam away, but the captain acknowledged that many fish likely died in the incident.

“It is a rare event for menhaden nets to interact with red drum, or any other species…The most likely explanation is the unusual situation in which a school of red drum swam beneath a school of menhaden, making them unobservable to the spotter pilot…

“…Bycatch in the menhaden fishery is rare.  Current research indicates that catch of non-targeted species comprises less than 1 percent of the volume…”

The release is a wonderful example of a corporate public relations department doing its best to sugar-coat an unpleasant truth, in this case, the harm that its operations do to publicly owned natural resources.

While I don’t know all of the facts surrounding the incident, since it occurred just off a state park on a hot midsummer’s day, it probably didn’t go unnoticed, but instead was witnessed by quite a few people.  Omega undoubtedly wanted to get ahead of the story, and put its spin on the facts in front of the public before the conservation and recreational fishing communities had a chance to cast its actions in a more negative light, and maybe convince that same public that Omega was engaged in activities that were not in the interests of most Virginians. 

Getting ahead of the story was probably particularly important to Omega, given that some Virginia politicians have been arguing that allowing Omega to purse seine menhaden within the confines of the Chesapeake Bay is bad public policy, and talking about legislation to halt the practice.

Such legislation would likely have significant public support, given that a letter, signed by 21 separate organizations, was sent to Virginia governor Glenn Youngkin more than a month before the red drum kill, asking him to close the purse seine fishery within the Chesapeake Bay.

In the face of such threats, it’s not surprising that Omega is trying to downplay the dead drum and burnish its tarnished image, although to anyone who spends much time on the water, much of the release doesn’t ring true—particularly the effort to make purse seine bycatch seem like the exception rather than the rule.

The plain truth is that purse seines are non-selective gear, which will catch and kill anything unfortunate enough to be trapped by their curtains of mesh.  The movement demanding “dolphin-safe tuna” erupted after the public learned of how many marine mammals were killed by purse seiners operating in the Pacific Ocean over two decades ago.

While the purse seine fishery for Atlantic menhaden is far less destructive than the fishery that targeted Pacific tuna back in the ‘90s, it still does its share of harm.  Omega trumpets the fact that no more than 1% of the fish that it kills constitute bycatch, failing to mention that it harvests such a huge amount of menhaden that even 1% of such figure is still a lot of dead fish.

In 2019, Virginia reported landings of 332,511,812 pounds of menhaden.  Not all of those landings can be attributed to Omega’s operations, but the 2016 landings for the reduction fleet, which supplies menhaden only to Omega’s facility in Reedsville, Virginia, were 137,400 metric tons (302,915,148 pounds), not much below the 2019 Virginia purse seine landings.  So even if we round Omega's landings down to 300,000,000 pounds, to avoid exaggeration, that 1% of landings would still amount to 3,000,000 pounds of bycatch. 

To put that in perspective, if we look at five species of fish that frequently feed on and associate with menhaden schools-- striped bass, bluefish, cobia, red drum, and weakfish--we find that Virginia’s total commercial landings for such fishes are 1,389,039 pounds, 192,431 pounds, 38,711 pounds, 2,616 pounds, and 39,724 pounds, respectively, an aggregate harvest of 1,662,521 pounds of marketable fish—not much more than half of Omega’s theoretical bycatch.  (Virginia’s estimated recreational landings in 2019 are higher--224,077 pounds of striped bass, 581,458 pounds of bluefish, 1,573,485 pounds of cobia, 470,940 pounds of red drum, and 30,573 pounds of weakfish, for aggregate landings of 2,880,533 pounds—but still smaller than the 1% bycatch figure cited in Omega’s press release).

Yet the directed commercial fisheries for such species are closely regulated/  Anglers fish under relatively strict regulations as well.

Omega’s bycatch isn’t regulated or restricted in any way.

Now, I’m not asserting that Omega’s bycatch is limited to, or even primarily made up of, the five species mentioned.  Since the reduction fleet's boats aren't required to carry observers, there is no way to be certain just what the actual bycatch looks like.  However, Omega’s comment that “It is a rare event for menhaden nets to interact with red drum, or any other species,” is very, very difficult to believe.

Menhaden are magnets for predatory fish.

While I’ve never fished on a menhaden school in the Chesapeake Bay, here off Long Island, any given menhaden school might be hosting striped bass, bluefish, cobia, sharks (with threshers, sandbars, duskies, spinners, and juvenile whites the most common), or even giant bluefin tuna—not to mention humpback whales, bottlenose dolphin, and other protected species.  Anglers look for the menhaden schools because they know that such schools will concentrate any predators in the area.

It's hard to believe that Virginia menhaden schools don’t draw predators in the same way; however, it’s easy to believe that the red drum recently killed by one of the purse seiners were just doing what red drum do, following beneath a bait school and feeding from time to time, rather than doing anything unusual.  In such a situation, bycatch is inevitable.

Yet, except for public relations considerations, the reduction fleet has no reason to avoid bycatch, as it suffers no penalties if and when it occurs.

Perhaps that ought to change.

Such bycatch could never be criminalized, because criminal sanctions normally, although not always, require some level of intent.  There aren’t many strict liability crimes on the books.

Civil liability, on the other hand, presents a possibility that is already being exploited in other fields of wildlife management, where people who illegally take fish and game are required to pay, in addition to criminal penalties, civil cash restitution intended to compensate the public for the destruction of public resources. 

The Boone and Crockett Club, which focuses on big game conservation, conducted a study on the use of restitution to deter and compensate for the illegal harvest of game animals, in which it noted that

“Eighty-one percent (N=42) of all states have restitution for illegally taken big-game species.”

The federal government has required commercial fishermen who intentionally violated fisheries law to pay substantial restitution as well.

Extending such restitution requirements not only to poachers, but to those who unintentionally--but perhaps negligently or recklessly--kill marine fish like the drum described in the Omega release could inspire commercial fishermen to make a greater effort to avoid killing non-target species.

Of course, it’s easy to picture the objections of the commercial fleet.  They’re not doing anything illegal when they kill non-target species; doing so is completely accidental.

While that may be true, the situation isn’t much different from that of the hunter who, having a tag that only allows him to harvest an antlerless deer, fails to take a good enough look at the “doe” that he sees in the dim pre-dawn light, shoots as the animal walks out of sight, and ends up killing a spike buck by accident.  In a restitution state, a civil penalty would still be applied, despite no intent to break the law.

The trawler that makes a tow through an aggregation of squid, even though large fish, which turn out to be striped bass, clearly show up on its sonar, is arguably more culpable for its bycatch than the huner would be for killing the little buck.  At least the hunter thought that he was shooting at a legitimate target.

The trawler, on the other hand, knows that the off-limits bass are there.  It knows that, as it  catches its load of squid, it will  also end up catching, killing, and dumping many, many incidentally caught striped bass.  Witnesses have reported seeing slicks of dead bass, floating on the surface, that extend for “miles” behind the fishing vessel.  Such events have been reported from here on Long Island, as well as from Martha’s Vineyard.  

In North Carolina, trawlers have intentionally towed their nets through striped bass aggregations, culling out a trip limit of the most saleable fish and leaving the rest as a buffet for the gulls.

As things stand today, accidentally killing and subsequently dumping even a large number of off-limits fish is completely legal.  Other than trying to avoid the extra work involved in dumping the dead bycatch overboard, fishermen have no incentive to avoid discard mortality.

But what if the commercial fleet had to reimburse the public for the fish that are inadvertently—and often negligently—wasted?  

What if restitution had to be paid for every striped bass, every red drum, every summer flounder or croaker or weakfish or immature scup that ended up killed?

If the reimbursement price was set properly, as it is in many states that require reimbursement for big game violations, trawlers, purse seiners, and other large-volume boats would have to pay a real and hopefully prohibitive price for their dead discards.

The Boone and Crockett explains how that might work in its description of the Ohio reimbursement program.

“In Ohio, for example, the seven scoring criteria included in the wildlife value formula includes:  recreation, aesthetics, educational, state-list designation, economics, recruitment, and population dynamics.  The current, minimum value calculated by state wildlife biologists for an antlered white-tailed deer is $500.  If the buck qualifies for trophy status, the…gross score [for its measured antlers] is plugged into an equation…to determine the trophy restitution value.  Therefore, if a violator is convicted of poaching a white-tailed deer with a gross score of 180”, he/she would have to pay a $500 base value penalty plus an additional restitution of $10,560.”

The restitution for each fish discarded dead wouldn’t have to be nearly that high.  Perhaps the going ex vessel price for the fish, plus an additional restitution amount linked to size and reproductive potential.  So the price for accidentally killing a 20-pound striped bass might be $80 or $90 ($4.00 or $4.50 per pound) with nothing more added, while killing a 50-pound fish might incur a $200 or $225 base rate plus another $200 or $300 to compensate the public for the lost trophy and reproductive capacity.

Numbers like that add up quickly, and would probably convince any trawler that making a tow through a concentration of off-limits striped bass would be a very poor economic decision. 

Down in Virginia, paying similar restitution for dead red drum—even though many of them were too large to have any market value at all—could well be seen as an unacceptable financial risk that made fishing in the ocean, rather than in the Chesapeake Bay, where the purse seiners are limited to an annual landings cap of 51,000 metric tons/1,124,360 pounds, the preferred economic alternative.  (While there is still the possibility of dead discards when fishing offshore, there less of a chance that anyone will witness the kill, something likely to make captains monitor the net less “attentively” and which also leads to the question, “If no one sees you dumping a load of red drum or striped bass overboard, did any bycatch occur?”)

 The commercial fleet might well call such outcomes unfair, but is it any more equitable to allow a handful of people to not only profit from a public resource without paying the sort of royalties or separation fees associated with taking timber or minerals from public land, but also to incidentally diminish the abundance of other public resources and so impair the public’s ability to enjoy them?

Restitution fees would also create incentives, as they would have the least impact on diligent fishermen, who are willing to avoid setting nets at times and places where bycatch is likely, and/or are willing to invest in new technology such as the bycatch-reducing Ruhle Trawl.  But they would impose a meaningful economic cost on those who are willing to kill significant quantities of non-target species in order to net a profit.  

Restitution fees would also favor fishermen who use more selective and/or less damaging gear, such as traps, pound nets, or hook and line, which allow for a very high proportion of live releases (admittedly, with some low level of discard mortality), over those who fish less selective gear designed to capture large quantities of fish at one time, which often kills a large proportion of anything that ends up in their nets.

Restitution payments may sound like a radical concept, and when applied to bycatch-related mortality, they are. 

But they are also widely employed in other wildlife management scenarios, and if applied to large-scale fisheries, would provide an economic incentive to do the right thing.  That would be a sharp contrast from the current situation, where doing the wrong thing often carries the greater financial reward.