RED SNAPPER MANAGEMENT JUST GOT MORE COMPLICATED

 

Red snapper has long been one of the more contentious  issues in United States fisheries management.

In the Gulf of Mexico, an expanding red snapper population has attracted more anglers to the fishery, leading to chronic recreational overharvest, the threat of significant paybacks in some states, and militant industry and anglers’ rights organizations which seem willing to overthrow the federal fishery management system in order to put a few more dead fish on the dock.

In the South Atlantic, the population is also expanding, but is still at such a low level of abundance that bycatch in other fisheries is coming dangerously close to causing overfishing, so that the directed red snapper fishery, both recreational and commercial, has been nearly shut down.  Again, controversy prevails.

While anglers, commercial fishermen, for-hire operators, conservation advocates, and fishery managers have often been in stark disagreement about the size of red snapper stocks and how they ought to be managed, they were more or less in agreement on at least one thing:  There are two stocks of red snapper, one in the South Atlantic, one in the Gulf of Mexico.

Now, research recently presented to the South Atlantic Fishery Management Council has blurred that line, and strongly suggests that some red snapper spawned in the western Gulf of Mexico end up in South Atlantic waters, and enhance the South Atlantic population.

The presentation was based on work done by Dr. Mandy Karnauskas, et al, and presented in a paper titled “Source-sink recruitment of red snapper:  Connectivity between the Gulf of Mexico and Atlantic Ocean,” which was published in the journal Fisheries Oceanography earlier this year.  (As the paper explains, “source-sink” recruitment occurs when “recruitment of the sink population (or stock) is subsidized by larvae from the source population;” in this case, the Gulf stock of red snapper is subsidizing the South Atlantic stock.)

The researchers began with known red snapper spawning areas in the western Gulf of Mexico, and then applied models that predicted how particles (i.e., red snapper eggs and larvae) would be transported in the water column during the 26 to 30 days that pass between time when the eggs are produced and the time when the larvae settle onto the bottom.  By doing so, they determined that red snapper spawned in the Gulf of Mexico make a significant contribution to the South Atlantic stock, with the precise contribution differing from year to year.

As a result, as the abstract of the paper notes,

“effective management of the Gulf of Mexico red snapper stock, particularly the spawning population in southwest Florida, may have important consequences for the sustainable harvest of red snapper off the Atlantic coast.”

That adds another dimension to red snapper management, both in the Gulf and in the Atlantic.

In the Gulf, it means that managers can’t only be concerned with maintaining Gulf red snapper numbers.  

Right now, Gulf of Mexico red snapper—at least, those in United States waters—are managed as a single stock, whether those fish are located off Galveston, Texas or Destin, Florida.  The current goal of the fishery management plan is to increase spawning stock biomass until the spawning potential of the stock equals 26% of the spawning potential of an unfished population (26% spawning potential ratio, or “SPR”).

But if red snapper spawned in a particular part of the Gulf are also needed to bolster the stock in the South Atlantic region, then managing the entire Gulf under the same set of regulations might not produce the best possible results.  While the current targeted level of removals might make sense for red snapper caught off Texas or Louisiana—and probably off Mississippi and Alabama, too—because those fish spawn too far west to make an appreciable contribution to the South Atlantic stock, Florida red snapper may be an entirely different issue.

The study recently presented to the South Atlantic Council’s Scientific and Statistical Committee advised that larvae from red snapper that spawn on the West Florida Shelf, which is located offshore, south of Tampa Bay, makes a significant contribution to the South Atlantic stock, and may provide as much as one-third of the recruitment to that stock in some years.  In the recent past, severe overfishing had badly depleted the number of red snapper that populated, and spawned on, the West Florida Shelf, but as the overall Gulf of Mexico stock has rebuilt, the West Florida Shelf has become largely repopulated as well, a circumstance that has probably benefited red snapper in the South Atlantic region.

But given the importance of that area to the South Atlantic red snapper, and the lesser but still real contributions to the South Atlantic stock made by areas both north and south of the West Florida Shelf, does it make sense to keep managing Gulf of Mexico red snapper as a single stock?  

While all Gulf of Mexico red snapper are spawned somewhere within the Gulf (although larvae may be transported some distance from where they were spawned, while other populations are supported largely by local spawning), does the fact that many snapper spawned off the West Coast of Florida end up in the South Atlantic justify managing red snapper from Florida’s portion of the Gulf more conservatively than those caught off other Gulf states, because of their potential contribution to the South Atlantic stock?

And if the answer to that question is yes, then managers need to figure out just how to do so.

Then, there is the question of red snapper that spawn in the South Atlantic.

It appears that many of the red snapper off eastern Florida were spawned locally; the models disagree on whether the greater proportion of the snapper off Georgia and South Carolina are probably also of eastern Florida origin, or whether they were spawned locally, too.  The models seemed to suggest that red snapper spawning off North Carolina was strong enough to justify calling the area a spawning “hotspot,” although some of the models also suggested that larvae from eastern Florida, and perhaps even from the Gulf of Mexico, were settling off North Carolina in substantial numbers.

Given the significant percentage of South Atlantic red snapper recruitment that is attributable to fish spawned in the Gulf—somewhere between 11.0% and 34.5% of recruitment in any given year, depending on the ratio of egg production off western Florida compared to egg production in the Atlantic—can the South Atlantic stock be managed to a somewhat lower spawning potential ratio, given that some percentage of its recruitment comes from the Gulf, and is not affected by the South Atlantic stock’s SPR?

Or might the opposite be the case:  Because the South Atlantic stock is currently being subsidized by Gulf recruitment, should the target SPR of the South Atlantic red snapper be higher than it currently is, so that the stock might continue to support itself should the Gulf stock experience unforeseen recruitment issues?

Those are things for the biologists to decide.

Right now, the published study advises

“Our simulation results characterize the primary source and sink locations of red snapper recruits in the Eastern Gulf and Atlantic and can guide future monitoring of key areas of spawning stock biomass as well as likely areas of settlement to develop recruitment indices.  In the Atlantic, there is essentially no published information documenting the occurrence, distribution, and habitat preferences of red snapper juveniles.  Identifying red snapper probably settlement locations, as done here, is a critical first step toward developing surveys to generate recruitment indices, which could subsequently be incorporated into stock assessments.  Probably source populations in the Gulf have only recently been studied, and source-sink dynamics in the Atlantic were previously unstudied.  From a stock assessment perspective, substantial input of recruits from an external population would complicate detection of any spawner-recruit relationship…

“Our results also have implications for red snapper management, both among jurisdictions and within.  Given that productivity of the Atlantic stock seems to be significantly impacted by dynamics of recovery and exploitation in the southern extent of the West Florida Shelf, more insights into these patterns could improve management advice.  Recent research initiatives with improved monitoring in these areas may lead to additional insights into patterns of abundance and may improve predictions of recruitment subsidies in the region.  In the Atlantic, the center of biomass off the coast of Florida may be relatively robust to localized depletion, so long as it is subsidized by recruits from Southwest Florida.  The compact area of high red snapper biomass off the coast of North Carolina may be even less susceptible to localized depletion as it appears to be only a sink location; it receives substantial input from both East and West Florida centers of red snapper abundance…  [internal references omitted]”

Thus, the recently released study has opened the door on a new line of inquiry for red snapper managers.  By providing insights into the contribution of Gulf-spawned red snapper to the South Atlantic population, it has provided a foundation for additional research into the relationship between red snapper in the Gulf and the Atlantic, into new approaches to red snapper management, and into other areas germane to the health of the red snapper stocks.

At this point, there’s no way to be sure where such inquiries will lead.  Yet one thing seems certain—while red snapper management has never been easy, the new study will probably lead to a more complex, more nuanced sort of management, a sort never imagined by spokesmen for the anglers’ rights crowd, who mostly bang on the tables while seeking to take home more fish.

 

 

 

 

 

 

MARINE PROTECTED AREAS CAN BENEFIT TUNA, BUT...

 

Anyone who has followed this blog for a while probably knows that I’m a skeptic when it comes to the worth of no-take marine protected areas. 

While I believe that time and area closures, gear restrictions, and similar measures can be effective fishery management tools, I also believe that management measures should be crafted to address specific and clearly defined problems.  Prohibiting all bottom fishing over a particular set of banks, ledges, or reefs, in order to protect spawning aggregations of grouper, for example, could be an entirely reasonable management measure.  Shutting down all fishing in such a place, including trolling for billfish, dolphin, and tuna 300 feet above such protected bottom, in the surface layers where grouper never go, is unacceptable management overreach.

I’m particularly critical of such indiscriminate closures when they prohibit angling for highly migratory species in a small geographic area that such fish might transit in the course of a day, if not a few hours; such ephemeral protections provide no real protection to pelagic fish, but could work real hardship on anglers if they shut down readily accessible fishing grounds, and make it a practical impossibility for fishermen to target their chosen species without embarking on long trips or shifting their boats to ports farther from home.

Even a week ago, I would have said that no-take marine protected areas have no place at all in highly migratory species management, but a recently released scientific study shows that is not true—although the area studied differs substantially from the typical MPA.

It’s nice to know that my skepticism was shared by many in the scientific community; the paper that describes the study, “Spillover benefits from the world’s largest fully protected MPA,” which appeared in the journal Science on October 20, admits in its abstract that

“Previous work had cast doubt on the potential for marine protected areas (MPAs) to provide refuge and fishery spillover benefits for migratory species as most MPAs are small relative to the geographic range of such species.”

But it turns out that if the MPA is large enough, such benefits can occur.  Dr. Sarah Medoff of the University of Hawaii, an author of the paper, expressed surprise at her study’s findings, saying,

“I think the common perception of no-fishing zones is that they really are only going to benefit less mobile species, like corals or lobsters…And so when we found that there was this positive benefit for bigeye and yellowfin, that was completely shocking to us.”

The study focused on yellowfin and bigeye tuna, and the protections and benefits provided by the Papahanaumokuakea (formerly, the Northwest Hawaiian Islands) Marine National Monument, which is located, as its name suggests, northwest of the eight larger islands that most people probably think of when they hear the name “Hawaii.”  The national monument encompasses 583,000 square miles, an area nearly four times the size of the State of California, and is the world’s largest no-take marine protected area.

The marine national monument was only about one-quarter of its current size when President George W. Bush created it in 2006; it was expanded to its current boundaries in 2016 by President Barak Obama.  That expansion turned out to be the key to the recently-released study.

The researchers conducted the study by examining records maintained by the National Marine Fisheries Service, which recorded the catch of tuna longliners that fished within 600 nautical miles of the marine monument during the years 2010 through 2019.  It turned out that after the monument was expanded in 2016, catch rates increased substantially.

The catch rate of yellowfin tuna by vessels fishing outside the Papahanaumokuakea monument increased by 54% between 2016 and 2019, with the greatest increases seen by boats setting their lines between 100 and 200 nautical miles from its borders.  The catch rate of bigeye tuna increased by a much smaller but still significant 12%.  A similar increase was not observed in the catch rates of vessels fishing outside the original borders of the marine monument during the years 2010 through 2016, suggesting that the improved catch rates were a direct result of the monument’s expansion.

An interesting sidenote to the findings was that the monument wasn’t created to benefit the yellowfin or bigeye tuna stocks.  As researcher Dr. John Lynham of the University of Hawaii noted,

“It’s important to point out that this protected area was not created with the intent of protecting tuna…This fish benefit was a happy accident of the initial intent, which was to protect biodiversity and culturally important areas.””

As to why the tuna benefitted from the marine monument, another of the paper’s authors, Dr. Jennifer Raynor of the University of Wisconsin, suggested a pair of possible explanations:

“The protected area could be doing one of two things.  The first is that these iconic fish populations are increasing because the areas provide nurseries for baby fish, and some of them are spilling over into nearby areas.  A second reason may be that fish are just finding a safe place to aggregate, near the protected area, where they can’t be caught.”

Luck may also have played a role, something Dr. Raynor admits.  While the marine monument wasn’t intended to benefit tuna, it just so happened that its shape conforms to the east-west pattern of tuna movements.  Yet, accident or not, the Papahanaumokuakea monument has proven to be a boon to both the tuna and Hawaii’s tuna longline fleet.  There is now little question that a no-take marine protected area can, if large enough and properly oriented, benefit tuna populations.

Having said that, there is still the need to keep the study’s conclusions in context.

The Pacific Ocean is a huge expanse of water, and the scene of much recent volcanic activity; much of it is dotted with volcanic islands that rise from the deep ocean floor, with banks and seamounts that mark the location of ancient islands that have since been eroded away by the sea, and with atolls where the remains of ancient volcanoes have not yet completely surrendered to the waves.  It is a place where a national monument 1,350 nautical miles long can comfortably fit amid the islands and the emptiness, and leave more than enough room for fishermen to ply their trade.

The Atlantic Ocean is a narrower sea, and one far less amenable to such large-scale closures.  The distance between the northernmost point on the Maine coast and the southernmost tip of mainland Florida is less than 1,600 miles; a no-take MPA the size of Papahanaumokuakea would, in a north/south orientation, run almost the entire length of the U.S. East Coast.  Yet there is no evidence to suggest that anything significantly smaller would provide meaningful benefits, either to highly migratory tuna stocks or to the fishermen who pursue them.

Despite that, there are reasons to worry that various marine conservation groups still seek to create much smaller, ineffective no-take MPAs along the Atlantic coast.

The concerns arose with the 30x30 movement, an international effort to protect 30% of the Earth’s lands and waters by the year 2030.  On its face, the movement is innocuous and, in all honesty, probably a good idea.  In the United States, the concept was embodied in an executive order issued by President Joseph Biden on January 27, 2021, and later in a multi-agency report titled “Conserving and Restoring America the Beautiful,” which was a balanced and well-reasoned document, but also contained the observation that

“Ocean stakeholders also noted that many of the nation’s marine protected areas are located in the Western Pacific.”

The implication of such comment is clear; some “ocean stakeholders” are eager to see marine protected areas created in other regions, as well.  That intention was confirmed in a letter dated October 7, 2021, which was signed by 44 marine scientists and addressed to the Secretary of Commerce, the Secretary of the Interior, and other leading environmental officials.  Such letter broadly supported 30x30 and, in that context, the creation of additional no-take MPAs, saying

“We must take bold steps to halt and reverse the trajectory of the threats to our ocean and communities—now.  Marine protected areas (MPAs) represent a powerful tool to do so.  Below, we offer recommendations to leverage marine protected areas to achieve the bold, inclusive vision laid out in America the Beautiful for oceans and coasts….

“…MPAs are ocean areas set aside primarily for the long-term conservation of nature, and provide associated benefits to people such as enhanced fish stocks and cultural ecosystem services like mental and physical health, sense of place, and identity formation.  They remove direct human pressures, protecting undisturbed areas and allowing disturbed areas to recover.  Importantly, research has shown that fully-protected MPAs (where all abatable destructive or extractive activities are removed) and highly protected MPAs (where only light destructive or extractive activities with low impact are allowed) are more effective than lightly or minimally protected areas at restoring and preserving biodiversity and enhancing ecosystem resilience in the face of climate change…

“…MPAs currently cover 26% of U.S. federal and state waters, including inland bays and estuaries.  However, 99% of these protections are in the remote Pacific, leaving most of the coastal communities of the continental US and US Caribbean without access to MPAs and leaving those ecosystems and habitats vulnerable to overexploitation, degradation and destruction..

“Because highly to fully protected areas are the most effective type of MPA for delivering the goals of America the Beautiful, we recommend the Administration work to establish more of these effective conservation measures in U.S. waters…”

Thus, with respect to tuna, it seems that we have almost come full circle.  In the past, the prevailing belief was that marine protected areas were of little benefit to such highly migratory species, but recent research indicates that, if an MPA is large enough, and properly sited, it can benefit both tuna stocks and tuna fishermen.  However, as the Papahanaumokuakea-related longline data collected prior to 2016 shows, such benefits are not provided by smaller MPAs.

Yet MPAs advocates still call for the creation of fully-protected MPAs, in which fishing for all species, including tunas, would be prohibited, in areas such as the US Caribbean and the Gulf and Atlantic coasts, even though such waters lack the vast expanses that would permit the creation of MPAs large enough to benefit highly migratory species while still offering adequate fishing opportunities in unprotected waters.

Such arbitrary closures make no sense.

If very large and well-sited MPAs can provide real benefits to the tuna and tuna fishermen of the Pacific Ocean, then such existing MPAs should be maintained, and the creation of new protected areas considered.  But, where the creation of such vast closed areas is not a practical option, the notion of fully-protected ocean areas should be abandoned in favor of more directed restrictions that address the problems at hand.

 

 

 

 

 

STRIPED BASS: ANOTHER POOR SPAWN IN MARYLAND

 

Earlier this week, Maryland released the 2022 striped bass juvenile abundance index, and the news is not good.  This year’s JAI was 3.6, well below the long-term average of 11.3; it marked the fourth year in a row when the index did not rise above 4.0, something that has never before happened in a time series stretching all the way back to 1957.

The Maryland JAI represents the average number of juvenile striped bass caught in a series of samples taken throughout the summer.  All samples are taken with a 100-foot-long, hand-operated beach seine, deployed at 22 established sampling points in the upper Chesapeake Bay, and on the Potomac, Choptank, and Nanticoke rivers.  Each site is sampled three times during the summer, and two sweeps of the seine are made at each site during each sampling session.

Since the time series began in 1957, the annual index reached a high of 59.39 in 1996, and a low of 0.89 in 2012.  Typically, the index fluctuates widely from year to year with no apparent pattern.  The record high index of 59.39 was bracketed by slightly below-average years, when the indices only reached 9.27 and 7.98; the record low index of 0.89 was preceded by the highest JAI in the past 20 years, 34.58 in 2011.  In that context, it is somewhat disconcerting that the index has been stalled in a low and very narrow range, between 2.48 and 3.60, since 2019.

The four-year average for 2019-2022, 3.16, ties the lowest average for any 4-year period in the entire 65-year time series; the previous low occurred during the years 1983-1986, when the stock was just beginning to recover from its collapse in the late 1970s and early 1980s.

The question on many anglers’ minds is what the continued poor recruitment might mean for the recovery of the overfished stock, and on future regulations.

The answer to that question isn’t clear.

The first thing to remember is that striped bass recruitment isn’t dependent on the size of the spawning stock biomass.  There is no clear stock/recruitment relationship; the scientists who performed the last benchmark stock assessment set the “steepness” variable at 1, which implies that there is no stock/recruitment relationship at all.  A very small spawning stock biomass can produce a very large year class; a very large spawning stock can and has produced disappointlingly low JAIs.

Instead, striped bass recruitment seems to be driven largely by environmental conditions in the spawning rivers.  When the winter has been cold and wet, and spring comes late, there is a very good chance that a large year class will emerge.  Under such conditions, more nutrients are washed into the spawning rivers, feeding blooms of zooplankton large enough to sustain unusually strong numbers of juvenile bass.  Warm, dry winters paired with early springs minimize nutrient runoff, and what runoff occurs enters the rivers too early in the year to benefit the newly-spawned fish.

Thus, fishery management is less a matter of keeping the spawning stock biomass large enough to assure a healthy spawn, and more about making sure that the population retains enough older, larger females to be able to take advantage of favorable spawning conditions when they finally recur, even if it might take many years for such conditions to come about.  

In a paper published more than 20 years ago, “Spawning in the nick of time?  Effect of adult demographics on spawning behavior and recruitment in Chesapeake Bay striped bass,” Dr. David H. Secor argued that

“Through a moratorium on Maryland State harvests in the Chesapeake Bay, the 1982 year-class was effectively protected and became a dominant one.  Ironically, most egg production in 1982 was attributable to striped bass >10 years of age.  Old remnant females produced during the 1960s were a hedge against a long period of recruitment overfishing which occurred during the 1970s.  [citation omitted]”

In the same paper, Dr. Secor noted the advantage of having a well-stratified spawning stock, which includes both young and old females, because striped bass of different ages enter the rivers at different times, with the older, larger fish entering sooner.  Such a reproductive strategy makes it more likely that, even in years when environmental conditions are not generally favorable, some portion of the spawning stock will enter the rivers during a time when conditions are relatively good, and thus prevent a spawning failure.

The current 28- to 35-inch recreational slot limit, which protects older, larger fish, would seem fairly well suited to supporting such a reproductive strategy, although commercial fisheries in a number of states may still harvest older, larger striped bass, and Maryland’s spring “trophy” season allows the continued landing of even the largest females—fish that may not be retained by anglers anywhere else—in the heart of the Chesapeake Bay. 

The recently adopted Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass also includes provisions intended to address periods of low recruitment.  It provides,

“If any of the four JAIs used in the stock assessment model to estimate recruitment (NY, NJ, MD, VA) shows an index value that is below 75% of all values (i.e., below the 25^th percentile) in the respective JAI from 1992-2006 (which represents a period of high recruitment…) for three consecutive years, than an interim [fishing mortality] target and interim [fishing mortality] threshold calculated using the low recruitment assumption will be implemented, and the [fishing mortality]-based management triggers…will be reevaluated using those interim reference points.  If [a fishing mortality]-based trigger is tripped upon reevaluation, the striped bass management program must be adjusted to reduce [fishing mortality] to the interim [fishing mortality] target within one year.

“The lower interim [fishing mortality] reference points will remain in place at least until the next stock assessment update or benchmark assessment is approved for management use.  Upon reviewing the results from the next assessment, the Board will determine which [fishing mortality] rate (target or interim target) to manage towards moving forward by considering factors such as current stock status, recent JAI data, and [Technical Committee] input.”

That all sounds fairly straightforward, but putting it into practice may not be all that simple.

The “low recruitment assumption” is based on Age-1 recruitment for the years 2008-2017 which, because survival of Age-0 fish can vary from year to year, doesn’t necessarily correspond to the annual JAIs (e.g., the 2011 Maryland year class was the highest in the last 20 years, yet its Age-1 recruitment was significantly less than that of the 2015 year class, which had a JAI roughly two-thirds the size of the 2011).  However, if we just look at the JAIs in order to more easily accommodate the recent Maryland indices, the average JAI for the years 2007-2016 was 10.9, not too far below the long-term average.

Thus, the average Maryland JAI for the years used to calculate the “low recruitment assumption” was more than triple the average JAI for the past four years.  If we extend the recent JAI out a little farther—say, out 6 and 8 years, to capture fish maturing into the spawning stock—things get a little better, with the average JAI for the past six years being 6.77 and the average for the most recent eight years being 8.38.  Still, even such 6- and 8-year averages fall below the average JAI for the years used to determine the low recruitment scenario, which suggests that the interim fishing mortality reference points used in the low recruitment assumption might not be low enough to capture what is actually happening with the striped bass stock (although the lower Year-1 recruitment of the 2011 year class may at least partially offset the higher average JAI for the low recruitment base years).

Then there is the question of setting interim reference points.

In August, the Management Board was advised that the Maryland JAI for 2019, 2020, and 2021 tripped the new recruitment trigger, but took no action to set interim fishing mortality reference points, perhaps because many Board members assumed that new management measures would be required pursuant to a rebuilding plan.  However, even if the Management Board had initiated action on interim reference points, the release and likely acceptance of a stock assessment update at the Board’s November meeting would relieve the Management Board of its absolute obligation to adopt such interim reference points, although it must still determine whether such interim reference points are needed.

The new Maryland JAI numbers would seem to trip the recruitment trigger again, and start the clock running on a new requirement to adopt interim reference points, but with a benchmark stock assessment scheduled for next fall, that requirement, too, will seemingly not survive long enough for any interim reference points to be put into effect, although the Board could set interim reference points if it felt that doing so would best benefit the stock.

As far as rebuilding goes, if the opinions expressed atrecent Technical Committee meetings hold, the striped bass stock has a goodchance of attaining its target level by the 2029 deadline.  That view incorporates a low recruitment assumption (although that assumption is still based on a recruitment level higher than what we’ve seen in the most recent years).  Most of the recent low JAIs have been incorporated into that projection.  

Because it takes striped bass a while to mature, the great majority of the fish spawned after this year will not enter the spawning stock until after 2029, making future recruitment irrelevant to rebuilding, although such recruitment will be very relevant to maintaining the stock at the target level.

Thus, whether or not the stock rebuilds by 2029 will not be determined by the 2022 JAI.

Even if the stock rebuilds by the 2029 deadline, continued low recruitment could threaten the long-term health of the striped bass resource.  Until the Maryland JAI returns to more typical levels, conservative management will be required to prevent an eventual decline in abundance.  

Although we can hope that the Management Board will be willing to maintain a conservative management regime until recruitment rebounds, whether it will actually do so remains an open question.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE FORGOTTEN FISHES

 

At the September meeting of New York’s Marine Resources Advisory Council, the members present requested that the state’s Department of Environmental Conservation consider adopting regulations governing the commercial and recreational fisheries for northern puffer, the creature better known simply as “blowfish.”

The DEC agreed to take a look at the matter and come up with some possible rules although, given the agency’s limited authority to manage marine species, it might take an act of the state legislature before any such regulations may be put in place.

Even so, the Advisory Council’s request, and the DEC’s response, were significant.

Regular readers of this blog know that just a few species of fish get most of the attention.  Striped bass probably lead the pack, closely followed by red snapper and black sea bass, with river herring, Atlantic cod, bluefish, various flounders, and shortfin makos trailing well behind.  Some other fishes make cameo appearances, but there are many, many more that don’t get any attention at all.

Fishery management works about the same way.

While fishery management plans may include many diverse species—the South Atlantic Fishery Management Council’s Snapper-Grouper Fishery Management Plan encompasses 55 different fishes—only a relative handful of those species receive the lion’s share of managers’ attention and resources.  While species such as summer flounder and striped bass, which are important to both the recreational and commercial fisheries, might be assessed on a regular basis, other fish, such as blowfish or northern kingfish, may not be assessed, or even managed, at all.

That’s not a good thing, and it can seem unduly dismissive of the such fishes' role in both the ecosystem and in local fisheries, but in a world where the resources committed to fisheries science and management are far less than the task requires, there will always be species that command less attention than others.  The striped bass, cod, and red snapper will always be better-researched, and probably better managed, than the cunner, tomcod, and windowpane.

Still, every now and then one of the forgotten fish manages to get its day in the sun.  Here in New York, a few decades ago, that happened to the humble oyster toadfish.  Long reviled as a slimy nuisance by anglers, and generally ignored as unmarketable by commercial fishermen, the toadfish suddenly drew the attention of buyers in urban live-fish markets, where it became popular with some folks who were recently arrived in the United States.

Crabbers and potters in New York’s bays suddenly found themselves in a rare situation, able to make good money catching an abundant and completely unregulated species of fish.  The boom times went on for a while, but it wasn’t too long before toadfish numbers, particularly the numbers of big toadfish that brought the best price, went into noticeable decline.  And since toadfish are part of a reasonably complex bay ecosystem, that’s not all that happened; when toadfish numbers declined, the numbers of small crabs, which had composed a big part of the toadfish’s diet, began to spike.

Crabs are important predators of shellfish, particularly clams, and it doesn’t make any difference to them whether the clams that they feed on derived from natural sets, whether they were seeded by local hatcheries trying to supplement overfished beds, or whether they were planted by the new aquaculture operations that were beginning to appear along New York’s shores.  So it didn’t take very long for folks in the shellfish industry to contact the DEC, and demand that they do something to protect the toadfish, before the crabs ate them out of house and home.

The state responded with what may be the only oyster toadfish regulations on the East Coast, with anglers limited to a 3-fish bag, 10-inch minimum size, and a season that’s closed between May 15 and July 15, to protect fish during their spawn, while commercial fishermen share the same season and size limit, but may retain up to 25 toadfish per day.

New York has come a long way since the days when there were no restrictions on the species at all.

Toadfish may be one of the few fish that are protected solely for ecosystem reasons (although federal fishery managers have extended limited protections to some forage species), but economic arguments can be made for protecting quite a few more.  For many species might be largely forgotten for purposes of conservation and management but, when taken together, still be important recreational and food species, merely because they are the only fish available in certain places during particular times of the year.

Back in the 1980s, my wife and I used to invite our then very young niece and nephew out to the house for a few days during the summer.  Going out on the boat and fishing was always on the agenda.

Back then, there was a 14-inch size limit for fluke and, I believe, a 12-inch size limit for weakfish (there was also a 24-inch limit for striped bass, but since the bass had not yet begun to recover for their collapse, that one was largely irrelevant), and no other restrictions on what one might keep.  So a casual day of fishing could amount to little more than grabbing a pack of frozen clams, or maybe some squid and spearing, and drifting around the backwaters catching whatever wanted to bite.

Over the course of an afternoon, we’d typically fill the livewell with a bunch of sand porgies and pin sea bass, with maybe a spot or a fluke or a weakfish for a little variety.  By the time we got back to the dock there would be enough fish swimming around in the well (despite the fact that I tossed as many as I could over the side when the kids weren’t watching) to turn my hands into pincushions by the time the cleaning was done. 

Our niece and nephew enjoyed it, and they kept coming out through most of their grade school years.

Today, we don’t have so much of that casual “family fishing” available in our local bays.  While some legal fluke, scup, and black sea bass can still be caught inside, higher size limits, particularly for the fluke and sea bass, pretty much dictate that most of the fishing take place in the ocean, where even on nice days a hostile inlet and rolling swell limit access for younger children and smaller boats.

But that’s where the blowfish and the other “forgotten” species come in.  While young anglers—and their families—looking for something to catch and take home in the waning days of summer can’t depend on the fluke, sea bass, and porgies that might have been available three decades ago, they can put together a pretty nice catch of blowfish and kingfish, and maybe a couple of spot and triggerfish, which have become more abundant in recent years.

And it’s not just about families fishing from their own boats.  When the wind blows, and makes transiting inlets uncomfortable and perhaps even dangerous, many party boats are stuck fishing in the bays; there is little question that the captains on those boats are always happy when their customers don’t go home with empty buckets, even if the fish that they catch aren’t the fluke or the porgies that they might have preferred.

So we need to remember those fish that are so easily forgotten.

Blowfish abundance tends to swing in boom-or-bust fashion; when the fish aren’t around, no one thinks much about them, but when there is a strong year class, and they reappear in large numbers, they are hit very hard by both anglers, who fill buckets with them while paying little attention to either numbers or size, and by commercial fishermen, who serve a restaurant trade that is always willing to put blowfish tails on the menu, even if some of those tails are surpassingly small,.

The sort of regulations that were discussed at the recent Advisory Council meeting, which would set a minimum size that allowed the females to spawn at least once and establish a reasonable bag limit for both commercial and recreational fishermen, might go a long way to smooth out highs and lows of blowfish abundance, and make them a more regular resident of the summer bay.

Although no formal recommendations were made, the same Advisory Council discussion that focused on blowfish also noted the increasing importance of another species, the northern kingfish.  A croaker not-too-distantly related to weakfish, kingfish are common on sand bottoms, readily take small, soft baits, and provide a good meal.  They’re not a big fish, averaging perhaps a foot long and—very rarely—reaching a maximum size of around 18 inches, but they can be abundant.  Like the blowfish, the fishery is completely unregulated and, like the blowfish, the abundance of kingfish can swing wildly from year to year.  A better understanding of its biology, along with appropriate regulations, could well make it a more consistent resident of local bays.

And then there are the other fish, species that have generally been shunned by anglers, or caught and quickly released, either because like the toadfish, they seemed too ugly to eat, or because they were otherwise deemed inedible.

On the mid-Atlantic coast, the striped sea robin may be one of the best examples.  Somewhat bizarre-looking, with a big, bony, spine-studded head, pectoral fins that flare out into broad “wings” and other fins that resemble feet and are used by the fish to “walk” across the bay bottom, sea robins were once seen as nothing but nuisances, and often killed and tossed on the beach for doing nothing more than eating bait that an anger had cast out for some prettier creature.

But people are beginning to learn that sea robins taste good, and are not really difficult to fillet.  More and more people are beginning to take them home, and some anglers are actively seeking them out when fluke and other more traditional food fish are hard to come by.  Sea robin tournaments are even beginning to crop up in New York and Connecticut.  

Although sea robins are not an important commercial species in the United States—less than 25,000 pounds, worth only about $4,275, were landed in 2021 in the New England and mid-Atlantic regions—they are a traditional food fish in southern Europe, where they are called “gurnard,” and their popularity is expanding into other parts of the continent.  It is not hard to imagine that, as commercial fishermen seek other species to make up for fishes that have become more difficult to harvest due to more restrictive regulations or climate-driven shifts in abundance, sea robin could see a similar increase in popularity.

Should that occur, and should sea robins experience an increase in commercial and/or recreational harvest, it is also not hard to imagine fishery managers being caught off guard, resulting in the scenario that played out in New York with respect to oyster toadfish repeating itself with the sea robin, leading to as-yet unpredictable ecological consequences.

Although this essay has focused on fish in the New York/upper mid-Atlantic region, the same situation exists all along the coast.  In New England, windowpane flounder (a/k/a “sundials” or “sand dabs”) used to be common in the bays and in the wash right off the beach.  Because the fish were so thin—only the dark side was really filletable, the white side was literally just skin and bone—they had little commercial value and usually ended up as lobster bait, although anglers might keep a few on a slow day, because what meat those bones carried tasted very good.  No one paid much attention to the low-value windowpane, until a stock assessment was performed and found them to be overfished.

Anglers aren't catching so many these days.

In the south, there are a plethora of small fish—grunts, mojarra, lookdowns, sand trout and the like—that are generally unmanaged, but collectively keep fishing rods bent for the people who fish from bulkheads and piers, and can provide a fine dinner for those who want to take the time to clean and cook the small fish.

These are the forgotten fish, that we only remember when, suddenly, they’re no longer around, and our bays seem a little emptier and less welcoming.  It’s a practical impossibility to manage them all, but like New York with its toadfish, and hopefully, in the future, with its blowfish as well, it’s always a good thing when one of them gets a little attention.

 

WHY LET A LITTLE EXTINCTION GET IN THE WAY OF BIG BUSINESS?

 

Today’s edition of One Angler’s Voyage isn’t going to focus on fish, at least not for a while, although it will eventually get around to the topic.  But it’s going to start by addressing a much larger matter.

That matter is whales.  In particular, Atlantic right whales.

Such whales were once common along the North American coast, so common that, when the original European settlers entered into treaties withthe native tribes, the rights to beached whales were an important part of thenegotiations.  Later, the right whales, which were abundant, docile, filled with oily blubber, and floated after being killed—traits that made them the “right whale” to pursue—formed the basis of New England’s nascent whaling industry.

But that industry was unregulated, and the whalers had unlimited access to the right whale resource, so the creature’s fate was written in stone.  Its population collapsed, and the industry that it supported was forced to turn to other whales in other waters, often on the opposite side of the world.  

In 1970, the North Atlantic right whale was listed as “endangered” under the federal Endangered Species Act.  Today, the species remains endangered, with a total population thought to number less than 350, with fewer than 100 of those being females of breeding age.  Although the population seemed to be slowly increasing between 1980 and 2010, it has declined sharply since then, falling back almost to its 1980 level.  

Since 2017, 34 right whales—about ten percent of the population—have been killed and another 21 seriously injured; 36 additional whales suffered sublethal injuries.  While the causes of 13 of the deaths remains unknown, scientists have determined that 11 died as a result of vessel strikes, 9 from entanglements, and 1 from natural causes.

The National Marine Fisheries Service issued final regulations intended to reduce right whale entanglements in crab and lobster gear a little over one year ago. 

Last summer, the agency took preliminary steps to address the vessel strike issue, expanding current 10-knot maximum speed zones and reducing the minimum size of the vessels to which such speed zones apply from 65 to 35 feet.  In explaining the need for the new rule, NMFS noted that

“Vessels less than 65 feet in length account for five of the 12 documented lethal strike events in U.S. waters since the first speed rule went into effect in 2008, demonstrating the significant risk this vessel size class presents and the need to extend the speed restrictions to include smaller vessels.”

The proposed speed zones would extend from Maine through the upper section of North Carolina’s Outer Banks for the period November 1-May 31; along most of the rest of the North Carolina coast from November 1 through April 30; from southernmost North Carolina to northern Georgia from November 1 through April 15; and from southern Georgia to the northeastern Florida coast from November 15 through April 15.  

While the speed restrictions would have a fairly minimal impact on recreational fisheries in northern waters, being in effect when most anglers are either finishing up their striped bass season or have already taken their boats out of the water for the winter, they would likely have a significant detrimental effect on fisheries in the lower mid-Atlantic and the Southeast.

Needless to say, the recreational boating industry was not pleased with the proposal.

It’s very possible that at least some of that displeasure was justified; it’s possible that smaller reduced-speed areas, or areas that shift with the known presence of whales, or some other less restrictive means of protecting the endangered cetaceans could be put in place, and if the industry took that tack in their comments, you wouldn’t be reading this blog. 

Instead, the industry’s approach was very different, focusing not on the plight of the whales, but on the plight of boatbuilders’ cash flow.  As the Asbury Park Press reported,

“A coalition of trade groups representing the industry compiled an analysis of National Marine Fisheries Service data, the fisheries arm of NOAA, and that found approximately 5.1 million recreational fishing trips were taken in the proposed zones by vessels 35 to 65 feet in length since 2008.  Assuming all five right whale strikes during that time were from recreational vessels, and that all these vessels were on fishing trips, the chance of a 35- to 65-foot recreational vessel striking a right whale during a fishing trip is less than one-in-a-million, the group argued.”

And that statement is true, if one focuses on the vessels and the trips, and not on the whales.

But when you’re talking about extinction, it is the impact of threats on the whales that matters.  And when you look at things from the whales’ perspective, but otherwise make the same assumptions that were made in the industry association’s comments, the odds of something bad happening aren’t more than one in a million—the odds of a particular boat on any given trip striking and killing a right whale--but around 5 deaths in a population of less than 350, or something less than one in 70, of any given whale being killed by a smaller vessel

While that may still seem a reasonably remote possibility, we have to remember that an Atlantic right whale can live for more than 70 years, and that once they survive their first year of life, they face very few threats from the natural world.  While females mature at about 10 years of age and, under ideal conditions, can birth a calf every three years, the stresses they face from entanglement and other human-related injuries have resulted in a longer, six to 10-year interval between births, which represents a sharp reduction in the fertility rate.  In addition, because human-related injuries have reduced the average female’s lifespan to just 45, rather than 70-plus, years, the male/female ratio in the population has been skewed, with males outnumbering females by more than two to one.

Under such circumstances, the loss of even a single individual to human-related causes can represent a meaningful loss to the stock.  The National Marine Fisheries Service has stated that

“The North Atlantic right whale is one of the world’s most endangered large whale species,”

and some conservation groups warn that the species could become extinct by 2040—less than two decades from now.

Yet, based on comments made by its president, Frank Hugelmeyer, the biggest concern of the National Marine Manufacturer’s Association isn’t that the North Atlantic right whale could forever disappear from the Earth’s seas, but that

“NOAA’s proposed rule unfortunately underestimates the very real economic impacts on the recreational boating and fishing industry, the largest contributor to the nation’s $689 billion outdoor recreation economy.  The rule will bring the vast majority of boating and fishing trips along the Atlantic Coast to a screeching halt, impacting millions of Americans who go boating every year.”

That’s a dubious statement, as it ignores the high percentage of recreational boating and fishing trips that take place inside coastal bays, sounds, and estuaries, which would be completely unaffected by the proposed speed restrictions, the number of trips that take place within five or ten miles of a vessel’s home inlet, rendering whale-related speed restrictions relatively unimportant and, although they have almost no relevance to the angling community but are nonetheless "boating...trips,' the number of trips that are made aboard sailboats, that aren’t in a hurry to get anywhere and seldom sail much above 10 knots even when not in a restricted speed area.  

Corporate hyperbole always strives to make things seem far worse than they actually are, yet the Center for Sportfishing Policy, an umbrella organization representing the recreational fishing and boating industries, along with a handful of closely affiliated anglers’ rights organizations, has jumped on the anti-speed zone bandwagon.  Its president, Jeff Angers, complained that

“Protecting right whales is urgent, and we are ready to do our part.  NMFS’ failed due diligence excluded from the conversation America’s recreational anglers and boaters—the most affected stakeholders.  The agency needs to get it right.  Based on actual interactions between recreational boats and right whales, the proposed restrictions on vessels 35-65 feet are unjustifiable, ineffective and unnecessarily costly to America’s economy.”

And perhaps Angers has some sort of a point.  After all, we don’t boil right whales down for their oil any more, and they’re not common enough to be seen on most whale-watching tours, so they really don’t have too much economic value these days.  So maybe, from some warped perspective, it does make more sense to let the whales go extinct in order to avoid unnecessary economic costs.

National Marine Manufacturers’ Hugelmeyer seems to endorse such a view, urging that

“Every employee in the entire industry needs to respond to this to protect their jobs and protect their industry,”

by, we can only assume, preventing NMFS from protecting the whales.

And this is where the fish come in, because groups like the Center for Sportfishing Policy and the National Marine Manufacturers Association don’t just spend their time trying to frustrate right whale conservation.  They spend a lot of time trying to frustrate fisheries conservation, too.

A few years ago, the same coalition of organizations supported something called the Modernizing Recreational Fisheries Management Act—dubbed the “Modern Fish Act” for short—which sought to weaken the conservation and management provisions of federal fisheries law in order to allow larger recreational harvests and an expansion of the recreational fishing and boating industry.  Thom Dammrich, then the president of the National Marine Manufacturers’ Association, observed that

“For far too long, the federal fishery management system has limited access for America’s recreational anglers and boaters due to faulty data and misguided regulations, which in turn have jeopardized the economic vitality of the recreational boating industry.  On behalf of the estimated 650,000 workers the recreational boating industry supports, we are eager to continue working with our allies in both chambers of Congress to get this important legislation to the president’s desk.”

The similarity to the rhetoric used to oppose proposed right whale protections are strikingly clear.

At about the same time, down in the Gulf of Mexico, the same coalition advocated for, and then celebrated, a temporary rule that would allow private boat recreational anglers to substantially overfish their annual red snapper catch limit, with the Center for Sportfishing Policy’s Angers declaring that

“The federal fisheries management system is failing recreational anglers on many levels, and the red snapper is the ‘poster fish’ of the quagmire.  The temporary rule directly addresses this problem, giving millions of recreational anglers in the Gulf of Mexico an opportunity to enjoy America’s natural resources and giving the Gulf economy a much needed shot in the arm.”

Such language, with its reference to NMFS “failing” recreational anglers and its elevating economic concerns over conservation imperatives, echoes the comments that Angers made with respect to the proposed right whale protections.

In 1908, the pioneering American naturalist and ocean explorer William Beebe, who descended half a mile beneath the ocean’s surface in the bathysphere, observed that

“The beauty and genius of a work of art may be reconceived, though its first material expression be destroyed, a vanished harmony may yet again inspire the composer; but when the last individual of a race of living beings breathes no more, another heaven and another earth must pass before such a one can be again.”

Or to paraphrase, in more modern terms,

“Extinction is forever.”

Yet it appears that the recreational boating and fishing industries are willing to increase the chance of the Atlantic right whale becoming extinct, just to prevent a decline in sales.  Such callousness pretty well explains why such organizations should not have a say in endangered species policy.

But their indifference to the very survival of a species also provides a very good window why such groups, and particularly the Center for Sportfishing Policy, shouldn’t be heeded when it comes to somewhat less critical issues of fishery management:  When the needs of conservation and profit conflict, they will always subordinate the needs of the resource to those of their bank accounts.  Such approach may very well serve their short-term interests, but it does absolutely nothing for ours.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NORTH CAROLINA LAWSUIT COULD BRING CHANGE TO FISHERIES MANAGEMENT

 

Nearly two years ago, the Coastal Conservation Association, acting through its North Carolina chapter, brought a legal action against the State of North Carolina, alleging that the state has badly mismanaged its marine fishery resources and failed to fulfill what the plaintiffs claim are its “public trust responsibilities” to protect citizens' “public trust rights” to fish in coastal waters.

In announcing the lawsuit, a CCA spokesman claimed that

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

More particularly, CCA argues that the North Carolina Division of Marine Fisheries has done little or nothing to reverse long-term declines in the health of coastal fish stocks, in particular stocks of river herring, southern flounder, striped bass, spot, croaker, and weakfish.

The CCA has typically been hostile to the commercial fishing industry, often while ignoring or even justifying recreational abuses of marine fisheries resources.  In North Carolina, it again focuses on supposed commercial harm to fisheries resources, complaining that

“three critical state management failures that have infringed on the public’s right to fish for personal use:  (1) facilitating commercial fishing practices and gears that cause staggering amounts of resource wastage; (2) allowing chronic overfishing of multiple fish stocks historically important to the fishing public to cause stock demise; and (3) disregarding a lack of reporting of any harvest by over half of all State commercial fishing license holders.”

Perhaps such complaints are justified, perhaps they are not.  Citing a section of the North Carolina Constitution, CCA alleged in its complaint that

“The public-trust doctrine imposes a fiduciary duty on the State to manage and regulate the harvest of [coastal finfish and shellfish] in a way that protects the right of current and future generations of the public to use public waters to fish.  As a result, the State may not allow the harvest of finfish or shellfish in public waters in quantities or by methods that cause unnecessary waste or impair the sustainability of fish stocks, which in turn threaten the right of current and future generations of the public to use such public waters to fish.”

It further alleges that North Carolina

“has continued to allow—and even facilitated—several commercial fishing practices that result in substantial wastage of coastal fish stocks or their prey species, or result in critical habitat destruction.  Those commercial fishing practices include trawling in estuarine waters with significant populations of juvenile finfish, and using ‘unattended’ gillnets…As a result, stocks of multiple fish species…have declined precipitously—84 to 98 percent—since the last major fisheries management reform legislation was enacted in North Carolina in 1997.”

Not surprisingly, North Carolina regulators strongly objected to the allegations, and sought to have the lawsuit dismissed. 

Such motion to dismiss did not directly address the allegations made but, as is typical in the early phases of litigation, relied on technical legal arguments, including claims that the state had not waved its sovereign immunity with respect to such fisheries issues, and so could not be sued; that only the state could raise claims based on the public trust doctrine; and that, for various reasons, the CCA complaint failed to state any claims on which relief could be granted.

On July 28, 2021, a trial court denied North Carolina’s motion to dismiss, and allowed the suit to proceed.

While that was not an insignificant action, when dealing with novel issues such as those addressed in the CCA suit, what happens at the trial level means far less than what is decided when the trial court’s decision is, inevitably, appealed.  So appellate briefs were duly filed, arguments were made, and on September 6, 2022, the North Carolina Court of Appeals unanimously upheld the trial court’s decision.

That was a much more impoortant action, made more so by the fact that, a few days ago, the state decided not to appeal the matter to the North Carolina Supreme Court, presumably because it felt that the Court of Appeals' decision was well-reasoned, and was unlikely to be overturned.

With the purely legal arguments out of the way, and the law of the case firmly established, a trial will now be held on the merits, in which the CCA will have to prove the allegations made in its complaint.  That won’t be a cakewalk, but some language in the Court of Appeals decision suggests a clear path forward for the plaintiffs.  More specifically, the court wrote, in part, that

“…Article XIV Sec. 5 was added to our State Constitution in 1972 and states: ‘[i]t shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry…’  Our Court interpreted this amendment…as tasking the State with a constitutional duty to not only protect the public lands, but also the public trust rights attached thereto. 

“Plaintiffs alleged the State breached this constitutional duty by ‘mismanaging North Carolina’s coastal fisheries resources.’  Specifically, Plaintiffs alleged the State has mismanaged the fisheries by ‘permitting, sanctioning, and even protecting two methods of harvesting coastal finfish and shrimp in its State public waters’—shrimp trawling and ‘unattended’ gillnetting—‘that result in enormous resource wastage[;]’ ‘refusing to address and remedy chronic overfishing of several species of fish[;]’ and, ‘tolerating a lack of reporting of any harvest by the majority of commercial license holders for more than a decade.’  Plaintiffs alleged ‘the State’s mismanagement of coastal fisheries resources…has eliminated or, at a minimum, severely curtailed the public’s right to fish for [popular fish species]…’  Thus, the alleged facts here support Plaintiffs’ contention that the State did not protect the harvestable fish population ‘for the benefit of all its citizenry.’  [citations omitted]”

The court also stated that

“Section 38 was added to Article I of our State Constitution in 2018 by amendment proposed by legislative initiation and adopted by popular vote.  It states:

The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good.  The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing…

“The state contends the language of this provision places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good.  We disagree.  ‘In interpreting our Constitution—as in interpreting a statute—where the meaning is clear from the words used, we will not search for a meaning elsewhere.’  ‘The plain meaning of words may be’ construed by reference to standard, nonlegal dictionaries… 

“The first sentence of Section 38 makes clear the right to fish belongs to the people.  Moreover, its inclusion in Article I indicates the General Assembly intended for this right to be protected against encroachment by the State.  Indeed, this right is ‘subject only to laws…and rules…to (i) promote wildlife conservation and management and (ii) to preserve the future of…fishing.’

“The plain meaning of the next phrase in the first sentence ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.  ‘Shall’ means ‘has a duty to’ or ‘must’ and imposes ‘imperative or mandatory’ obligations on the party to which ‘shall’ applies.  Forever, means ‘for a limitless time.’  ‘Preserve’ means ‘to keep safe from injury, harm or destruction.’  Thus, the plain meaning of the phrase indicates the General Assembly, when drafting the proposed amendment, intended to create an affirmative duty on the State to preserve the right of the people to fish and harvest fish.  However, the right to fish and harvest fish would be meaningless without access to fish.  Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time…  [emphasis added; citations omitted]”

Such language suggests that, in order to prevail in their lawsuit, the plaintiffs must first prove that North Carolina’s fish stocks have been harmed—something that the seem very able to do—and that the State of North Carolina has somehow failed to meet its constitutional obligation to prevent such harm.

That might be a bit trickier.

The plaintiffs will undoubtedly point to trawling within North Carolina’s bays, the use of unattended gill nets, and other allegedly inappropriate fishery management measures as evidence of North Carolina’s failures.  However, once the case goes to trial, merely alleging that state regulations caused, or at least did not prevent, harm to fisheries resources.  Plaintiffs must be able to prove, probably by a preponderance of the evidence (although some other evidentiary standard might apply), that such is the case; mere appeals to common sense, unsupported by data, will not get the job done.

North Carolina will undoubtedly challenge the plaintiffs’ allegations and evidence, and will almost certainly present evidence supporting its approach to fishery management.  The issues of scientific and management uncertainty will undoubtedly arise.  

While it’s very easy to second-guess fishery managers when their preferred measures fail to maintain a healthy stock, it’s far more difficult to devise measures that will both maintain stock health and allow a reasonable level of commercial and recreational harvest.  North Carolina will probably claim that, based on the data available, it did its best to maintain healthy fish stocks, but simply fell victim to the uncertainty inherent in the management process.

North Carolina might also maintain that it did what it could to protect and manage fish stocks, but that its efforts were frustrated by events that occurred outside its jurisdiction. 

While it might, for example, be able to manage its own Roanoke/Albemarle stock of striped bass, its loss of what was once a vital winter striped bass fishery for the coastal migratory stock was due to warming waters pushing both the bass and their forage farther offshore, while also allowing the bass to remain farther to the north, and not any failure of state fishery managers.

On the other hand, the decline in southern flounder abundance might well be laid on North Carolina’s doorstep.  The state released a stock assessment update in 2019, which admits that

“Model estimates of [fishing mortality] for the U.S South Atlantic coast are largely a function of the commercial fishery operating in North Carolina, which has generated considerable landings (1,000 to 2,000 metric tons annually) for nearly three decades,”

and also describes a path that would lead to the stock’s recovery:

“To reach the [spawning stock biomass] target by 2028, fishing mortality would need to be lowered to 0.18…and total catch would need to be reduced by 72%...All projections are associated with probabilities of 50%.”

When the state recognizes both a major contributor to the problem and the likely solution, it’s difficult for it to argue that the southern flounder issue can’t be fixed—although, even in that case, the assessment update acknowledges many unknowns related to other state’s fisheries, which could impact flounder abundance in North Carolina, and to the movements of a segment of the adult population.

Thus, the ultimate fate of the CCA lawsuit cannot be predicted.  Yet it’s interesting to ask the question:  What if the plaintiffs prevail?

The impact on North Carolina will be clear—if the state loses, it will be forced to embark on a much more aggressive, and far more conservative, fishery management program, which will be required to rebuild depleted fish stocks, and to manage all state fish stocks for long-term sustainability.

Elsewhere, any impacts will be less predictable, but could still be profound.

North Carolina is the only state defendant, and the court's decision in the matter will be based on the North Carolina Constitution and North Carolina law.  It will be binding authority only with respect to that state.  However, depending on how it is worded, the decision could also become persuasive authority—that is, precedent which isn’t binding on a court, but might be cited by attorneys litigating a similar matter, when binding precedent is lacking in the relevant state—elsewhere.

The constitutional provision guaranteeing people’s right to hunt, fish, and harvest wildlife isn’t unique to North Carolina; such measures were heavily promoted by the National Rifle Association a few years ago, and have made their way into other states’ constitutions.  The North Carolina Court of Appeals decision, with respect to the meaning of such provision, could already constitute persuasive authority there.

More broadly, any final decision in the matter could make its way into debates about the scope of states’ responsibilities under the public trust doctrine, and whether such doctrine not only requires states to guarantee the public right to fish in coastal waters, but also to guarantee that those waters will hold enough fish to make angling worthwhile.  

Coupling such a legal theory with existing state statutes--for example, with something like section 13-105 of New York’s Environmental Conservation Law, which opens with the statement that

“It is the policy of this state that the primary principle in managing the state’s marine fisheries 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,”

could yield some very important victories for conservation advocates.

But that sort of speculation belongs to the future.  Before we can start thinking about how to apply the North Carolina court’s decision in the CCA lawsuit to other situations in different jurisdictions, the court—and likely one or more appellate courts—first needs to decide the case.

But from what has been decided so far, in the interlocutory appeal, there is a fair chance that the decision, once handed down, will represent a win for the fish.