SOME THOUGHTS ON THE NMFS' MAKO SHARK CLOSURE

 

Last Friday, the National Marine Fisheries Service issued the long-awaited rule that prohibits the retention of all shortfin mako sharks caught along the Atlantic and Gulf coasts.  Beginning on July 5, no shortfin makos may be landed by anyone until NMFS determines that retaining such fish will do no harm to the shark,

The regulation was issued in response to last November’s action by the International Commission for the Conservation of Atlantic Tunas, which requires all member nations to prohibit shortfin mako landings throughout the North Atlantic.  If and when shortfin mako fishing mortality, including discard mortality, throughout the entire North Atlantic basin is reduced to or below 250 metric tons—roughly 550,000 pounds—ICCAT will consider reopening the fishery with a 250 metric ton annual catch limit.

Should ICCAT authorize such a reopening, NMFS will likely reopen the U.S. fishery, too.  However, because the United States is only responsible for about 14% of North Atlantic mako landings, and it is highly unlikely that fishing mortality will fall much below 250 metric tons, such landings will be very limited, and will probably be restricted to sharks that are brought to the boat dead in the longline fishery.

The recreational mako shark fishery that we once knew will probably be gone for a very long time.  Scientists are only giving the North Atlantic mako stock a 60% to 70% chance of rebuilding by the year 2070, so it’s far from certain that the traditional recreational fishery will ever return at all.

All things considered, that might not be a bad thing. 

When I first started shark fishing, more than a half-century ago, the mako shark fishery was almost all catch and kill.  There were no size or bag limits.  Juvenile makos, no longer than a loaf of French bread, commonly met their end in someone’s fish box, while slightly larger sharks, fish in the 40 to 60 pound range, were killed as a matter of course. 

Throughout the 1980s and ‘90s, shark tournaments flourished; here on Long Island, from the middle of June through the end of July, and sometimes into early August, there was at least one tournament held every weekend.  For much of that time, until NMFS finally put size and bag limits in place, many fish that had no realistic shot at a prize were killed and weighed anyway…just in case.

Makos were seen as both a prestige catch and a valued source of food, so even anglers who weren’t involved in a tournament usually wanted to put their fish on a scale.  The good news is that most weren’t wasted, although some of the largest, most valuable breeding females were discarded, either because their flesh was too coarse to provide good dining, or because they were too big to bring into the boat, had to be towed back many miles to get to the dock, and their uniced flesh degraded along the way.

At the same time, the makos were just fun to fight.  They were fast, they pulled off spectacular jumps, and they were as beautiful as any tuna or marlin when brought to the side of the boat.  So some anglers who participated in NMFS’ Cooperative Shark Tagging Program eventually began to tag and release more and more makos, recognizing them as not merely food, but as a valuable and valued sport fish.

That recreational release fishery will still be allowed under the closure.  In response to stakeholder comments suggesting that such fishery should also be shut down, NMFS responded that

“The purpose of this action is to implement ICCAT Recommendation 21-09, which prohibits retention of shortfin mako sharks.  Catch-and-release fishing is consistent with the measures in Recommendation 21-09 and with implementation of a flexible retention limit with a default of zero.  The retention limit of zero would prevent recreational fishermen from retaining shortfin mako sharks, which would reduce mortality.  Allowing catch-and-release is consistent with the non-retention requirements…Additionally, by allowing fishermen to catch-and-release shortfin mako sharks, data required for stock assessments would continue to be collected…”

Thus, while anglers might lose their seared mako steaks, and some opportunities to compete for prizes (although, having fished in my share of tournaments and having seen the relatively low standards of sportsmanship that prevailed—I once heard an angler auctioning off a good-sized mako over the VHF radio to participants in a particularly large and well-paying event, and he had no shortage of bidders—the latter is probably a good thing), NMFS left them the speed and the leaps and the beauty, which in the end are the best things of all.

For some anglers, that wasn’t good enough.  NMFS received a number of comments that argued for management measures short of a complete ban on recreational retention, including

“a recreational limit of one shortfin mako shark per vessel per year; a limit of two sharks per year: one trophy size and one for personal consumption; banning the retention of females; banning retention in tournaments; mandatory reporting; increasing the minimum sizes; and managing shortfin mako sharks like deer (i.e., through administration of a system that provides fishermen with a tag or limited number of tags).  NMFS received a suggestion to implement a fee for each shortfin mako shark caught, and a higher fee if the shark is brought to the vessel dead.”

However, all of those suggestions were, at least for the moment, dead on arrival, as NMFS must comply with the ICCAT decision to ban all mako landings over the next couple of years. 

We can probably expect some illegal landings to occur, primarily in the recreational fishery, where too many anglers seem to feel that the simple fact that they purchased fuel and bait gives them the right to take a fish home, regardless of any regulations that might say otherwise.  We saw such anglers violate the size limits that previously applied to shortfin makos, just as we saw some charter boat operators allow their fares to retain undersized sharks in order to make them happy and increase the chances for repeat bookings.

Having said that, an absolute ban will probably make poaching a little more difficult, for while no one but NMFS or state enforcement agents are likely to measure a fish to see whether it fell a few inches short of the limit, the very act of lifting a mako out of the boat now marks the people involved as poachers, and in this era of smartphones, could easily inspire a quick photo and a call to the enforcement folks.  

Since anglers will no longer be able to massage their egos by hanging big makos on the scale for all to see, the motivation to kill such fish will probably be somewhat diminished.  Once the landings ban goes into effect on Tuesday, the makos that will be most at risk are likely to be the forty-pounders that can be slipped into a cooler and clandestinely transported to the poacher’s barbecue.

The next big question is whether the new NMFS regulation will be the final word on the subject, or whether even greater protections will be put in place.

On January 25, 2021, Defenders of Wildlife, a prominent animal rights group, filed a petition with the Secretary of Commerce, seeking to have shortfin makos listed under the Endangered Species Act. 

On April 15, 2021, NMFS issued a so-called “90-day finding” which concluded that

“the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.  Therefore, we are initiating a status review of the species to determine whether listing under the [Endangered Species Act] is warranted.  To ensure this status review is comprehensive, we are soliciting scientific and commercial information regarding this species.”

The key word in the above finding is “may.”

While NMFS found that a listing “may” be warranted, its final decision will be based on the information reviewed during the status review.  Pursuant to the Endangered Species Act, if a federal agency finds that a listing under the Act may be warranted, that agency has 12 months from the date the initial petition was filed to determine whether the relevant species should be listed as “threatened” or “endangered.”

Thus, NMFS should have published its final decision on shortfin makos more than five months ago.  Because it has failed to do so, Defenders of Wildlife recently served NMFS and the Commerce Department with a Notice of Intent to Sue, which sets the stage for it to begin legal action 60 days after such notice was presented.

While such notice might help to ensure that NMFS completes the status review over the next few months, it probably wasn’t needed, as in its comments accompanying the retention ban, the agency noted that

“NMFS is actively working on the 12-month finding to consider listing shortfin mako sharks under the ESA and plans to release the determination soon.”

Given the need to comply with the ICCAT decision to prohibit all mako landings, it wasn't unreasonable for the agency to address that issue first.  I also suspect that completing the regulation was the more compelling task, because the agency will ultimately decide that listing shortfin makos, or at least listing the North Atlantic stock of shortfin makos, under the ESA is not warranted.

That’s because one of the criteria for an ESA listing is

“the inadequacy of existing regulatory mechanisms.”

I believe that NMFS will find that the ICCAT decision to ban shortfin mako landings, coupled with the new NMFS regulations, created a regulatory environment likely to rebuild the North Atlantic stock of shortfin mako by 2070, thus rendering a listing unnecessary.

That thinking might change if the ICCAT action doesn’t adequately reduce discard mortality in the pelagic longline fishery, but for now, I predict that NMFS will base its status review, and its finding that listing is not warranted, on the ICCAT decision.

And, in the end, that probably makes a lot of sense, because any action taken under the Endangered Species Act would probably have little impact on the North Atlantic shortfin mako stock, while having a substantial impact on commercial and recreational fisheries.  

Since the U.S. has already banned shortfin mako retention, the only additional restrictions that could result from an ESA listing would be regulations designed to reduce other sources of mako “take,” which the law defines as

“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

In other words, to place further restrictions on fisheries that might accidentally “harm…wound, kill,..[or] capture a shortfin mako, which as a practical matter includes just about any commercial or recreational fishery operating in the ocean off the New England or mid-Atlantic coast.

I’m pretty sure that NMFS has no intention of going that far.

So where does that leave the mako?

Certainly, in a far better place than it was in last October, before ICCAT imposed the retention ban, and in a better place than it was before the U.S. prohibition on landings was released.

Yet it is still an animal facing real risks. 

The shortfin mako’s late maturity and relatively slow reproductive rate makes it vulnerable to even low levels of harvest, and there is no guarantee that the Spanish and Portuguese longliners, who are responsible for most of the bycatch mortality, will make much of an effort to avoid killing a fish that now provides them with no economic benefits at all.  There is also no guarantee that they will accurately report their dead discards.  In fact, there is no guarantee that such longliners will even honor the ban, and won’t attempt to land illegal makos or, probably more likely, mako fins in the hope that enforcement of the landings ban will be lax, if such enforcement exists at all.

At the same time, the retention ban is probably the last, best hope that the North Atlantic stock of shortfin makos can be restored.

As for mako fishermen?

While some commercial fishermen will undoubtedly complain, the landings ban will have minimal economic consequences for the pelagic longline fleet; for the years 2018 through 2020, commercial mako landings for the entire Atlantic and Gulf coasts only generated an average of $96,000 in annual revenues.

Recreational fisheries will be hit somewhat harder.  NMFS estimates that the retention ban will eliminate about $1.1 million in angler expenditures attributed to traditional kill tournaments, and will have only a “minor” impact on the for-hire fishery, as only about 10% of for-hire vessels operating between Maine and Virginia target mako sharks, and just 7% of all for-hire trips targeting highly migratory species in that region are directed at shortfin makos.

Over all, that seems a small price to pay for measures which help to ensure that the fastest, highest-leaping, and arguably the most beautiful shark in the sea still exists, hopefully in greater abundance, when the twenty-second century dawns.