TALKING ABOUT FISH: THREE DAYS IN D.C.

 

I spent the first three days of last week in Washington, D.C., rejoining old friends and meeting new faces who share a common interest in supporting, and hopefully improving, the federal fishery management system.

Federal fishery managers have come in for more than their fair share of criticism in recent years, much of it coming from various recreational fishing organizations that seem to feel that their “right” to take home more fish than either good science or good sense will allow is somehow being infringed.  My wife and I never had any kids, but we know enough couples who did that, when I hear the recreational groups’ attacks on the federal management system, I'm always reminded of the cries of “You don't love me any more” that indulged but ungrateful children aim at their parents any time they don’t get what they ask for.

In fact, the recreational sector has a lot to be grateful for, particularly with respect to federal fisheries.  Fish stocks are generally healthy, with the biomass of some well over their target levels; as to those that are not in good shape, most have rebuilding plans that are headed in the right direction.

Last week, the National Marine Fisheries Service released its annual report on the status of fish stocks; the agency reported that five stocks were removed from the list of fish experiencing overfishing, while three new stocks were added—a positive gain of two—and that three stocks removed from the “overfished” list, with no new stocks added.

Of course, there were a couple of nuances to those removals. 

Georges Bank yellowtail flounder shifted from “experiencing overfishing” to “status unknown” due to uncertainties in the stock assessment, so it's possible that overfishing is still going on, while SouthernNew England/Mid-Atlantic winter flounder shifted from “overfished” to “rebuilt”not because the biomass increased, but rather because the fish is in such deeptrouble that recovery is no longer deemed likely, and biologists decided thatthe current stock size is about as good as it’s going to get.

But even taking those two stocks out of the equation, today there are fewer overfished stocks, and fewer stocks experiencing overfishing, than there were a year ago, and that can only be a good thing.

Yet it seems that Congress usually only hears from fishermen when they have complaints, and doesn’t hear enough about how well the system is working and how it has benefitted both the recreational and the commercial sectors, or how it needs to be tweaked in order to meet a changing future.  So the American Saltwater Guides Association put together a team that included recreational fishermen and folks from the recreational fishing industry, representing just about all of the mid-Atlantic states, to give elected officials (or, more often, such officials’ staff) a bit of insight into what is right with the federal fisheries management system, and where it might need a little more help.

I’ve always felt it was an important thing to do.  Prior to the outbreak of COVID-19, I’d been on the Hill quite a few times, even testifying before a House subcommittee on one occasion.  Going back after a three-year hiatus felt almost like coming home; I’ve always been fascinated by politics, and always found Washington a very special place, where concerned individuals can, if they work hard enough, still make a difference.

Last week, we all had our stories.  Mine was a story of change.  

As the oldest member of the group, I can look back over six decades spent on and around the water, beginning at a time when wooden boats—often wooden rowboats—dominated the angling scene, monofilament lines were still wiry and unruly nylon strands, and hollow fiberglass was still the ultimate material for building fishing rods.  

I remember a time before regulation, when the only rule anglers needed to worry about was a 16-inch minimum size on striped bass.  I remember the decline of most of our important coastal fisheries—not just the New England groundfish that have proven so very hard to restore, but also the decline of fish such as summer flounder, scup, and black sea bass. 

I can easily recall 1989, when the summer flounderpopulation dipped to its nadir, and even federal surveyors had trouble finding a fluke more than two years old.  I can recall black sea bass being overfished as recently as 2007, how fishing improved throughout their recovery, and how, as sea bass abundance drew more and more angling effort, the average size of the fish again began to decline.

I can describe how passage of the Sustainable Fisheries Act of 1996, which gave teeth to the Magnuson-Stevens Fishery Conservation and Management Act and, in so doing, compelled the regional fishery management councils and federal fisheries managers to end overfishing and rebuild overfished stocks within a time certain, led to vastly increased fish abundance and a vastly improved angling experience in every coast of the United States—and yes, I have fished them all.

And I can talk to members and staff about the changes in the ecosystem that have occurred in the time that I’ve been on the water.  It was striking how a couple of the staff members—and remember that staff members tend to skew young—are fishermen, who fish in Long Island Sound and Great South Bay, yet never caught a winter flounder.

When a staffer, who is also an angler, learns that New York anglers took home well over 18 million winter flounder in 1984, before the population began to slide downhill so badly that current landings are too small to be reliably counted, but probably amount to—at best, one or two hundred fish, and might be far less, and that the population collapsed during his or her lifetime, the need for effective fishery management, as well as the cost of bad management, becomes very clear.

But lost fisheries and collapsed fish stocks are only a part of the story; recreational fishermen have also benefitted from a warming ocean.

Warm water has moved the center of black sea bass abundance farther north; although we’ve always caught a few out of New York and New England, the population has exploded northward over the past decade, causing northeastern landings to spike.  Yet quotas still reflect, at least in part, past patterns of abundance, instead of the current reality. 

And then there are dolphin (a/k/a “mahi-mahi”).

For my first thirty years on Long Island, when it was midsummer, and I wanted a few fish for dinner, I’d fish the inlet and the nearshore lumps, hoping to put a few fluke in the box.  Today, it’s generally easier to run a few more miles offshore and look for dolphin, which we can reliably target any time between mid-July and mid-September. 

When it’s easier to catch what we used to think of as a tropical/subtropical species, rather than the formerly reliable summer flounder, change is surely in the air, but currently, there is nothing in Magnuson-Stevens that addresses such change.  Neither shifting stocks nor climate change is addressed in the current statute.  That needs to change, and helping Hill staffers understand what’s going on in the water is the first step in making that happen, just as it’s the first step in explaining why NMFS needs more money to develop the science that will let fishery managers adjust to the new reality.

Those of us who have spent a bit of time talking to legislators know that a single meeting won’t change the world.  But such meetings do begin conversations, which can lead to more talks which, in time, can result in positive action or prevent bad ideas from becoming law. 

Despite all the current skepticism leveled at the political process, it remains the key to maintaining and improving federal fishery management.  Despite such skepticism, every time I’m in Washington, I meet people on Capitol Hill who are honestly trying to make a difference, and care about well-managed fisheries.

And so my efforts, and the efforts of a lot of other folks whom I know, continue.  I look forward to being in Washington again, in the hopefully not-too-distant future.  Because history has already shown that dedicated, motivated people can move the system in the right direction.

And we intend to do it again.

ASMFC'S ATLANTIC STRIPED BASS MANAGEMENT BOARD FACES A CRUCIAL TEST

 

On the morning of March 30, 2023, the Atlantic States Marine Fisheries Commission’s (ASMFC) Atlantic Striped Bass Technical Committee (Technical Committee) held a meeting, where it agreed that the currently overfished striped bass population will probably not be rebuilt by the 2029 rebuilding deadline.

 

The news was not a surprise. Marine Recreational Information Program data had already let fishery managers know that striped bass landings in 2022 were roughly twice what they were in 2021, but it was still disheartening to anglers who had long advocated for better striped bass conservation. Just last November, a stock assessment update found that, so long as fishing mortality remained at the 2021 level (F=0.14), there was a 78.6 percent probability that the striped bass stock would fully rebuild by 2029.

 

The 2029 rebuilding deadline was set pursuant to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, and carried forward after the new Amendment 7 to the management plan was adopted in May 2022. The plan requires that “If female [spawning stock biomass] falls below the threshold, the striped bass management program must be adjusted to rebuild the biomass to a level that is at or above the target within an established timeframe [not to exceed 10 years]. [emphasis added]”

 

That requirement was tripped in 2019, after the ASMFC’s Atlantic Striped Bass Management Board (Management Board) accepted a benchmark stock assessment that found striped bass to be both overfished and subject to overfishing. However, the Management Board didn’t initiate rebuilding immediately. Instead, it first took the time to draft and debate Amendment 7; when that was finally done, the time for rebuilding had already shrunk from ten to just seven years.

 

Thus, the assessment update’s conclusion that the stock would probably rebuild, even if no additional management measures were taken, came as welcome news. Unfortunately, last year’s big spike in recreational landings has completely changed that outlook.

Removals of striped bass from the coastwide population increased by 33.5% in 2022, compared to removals in 2021. The 2022 fishing mortality rate was 0.1873, just about halfway between the fishing mortality target of 0.1679 and the fishing mortality threshold, which defines overfishing, of 0.2013.

Although fishing mortality has risen above the target, overfishing is not yet occurring.

Still, fishing mortality has risen high enough to frustrate the rebuilding process. If the fishing mortality rate does not change, the female spawning stock biomass will probably rise above the threshold, and will no longer be deemed overfished, at some point during 2023, but that recovery is expected to stall somewhere short of the spawning stock biomass target. Instead, striped bass abundance will probably level out at a point about midway between target and threshold.

By 2029 female spawning stock biomass, far from being rebuilt, will probably be shrinking slightly, due to the unusually low number of young bass that have recruited into the population since 2018.

 

How unlikely is it that the striped bass stock will rebuild?

If the Management Board chose to reject Addendum I to the Atlantic Striped Bass Interstate Fishery Management Plan (Addendum I) at its May 2023 meeting, and so continues its ban on the interstate transfer of unused commercial striped bass quota, and if the fishing mortality rate was no higher than 0.1837 (the average of the fishing mortality rates during the years 2019, 2021, and 2022), there would be a mere 14.6% probability that the stock will rebuild by 2029. There would also be a 93.9% chance that the stock would not be overfished in that year.

 

That’s the best-case projection.

The worst case, which assumes that the fishing mortality rate would remain at its 2022 level, that the Management Board will approve Addendum I and that the entire coastal commercial quota will be caught, gives the stock only a 3.4% chance of rebuilding by 2029. Under such circumstances, the probability of the stock not being overfished in 2029 drops to just 75.8%.

The Technical Committee considered a number of different scenarios, involving different levels of fishing mortality and commercial quota utilization, at its March 30 meeting, and decided to present the Management Board with three different projections for consideration at its May meeting. All will assume that recreational fishing mortality will equal the three-year (2019, 2021, 2022) average.

One projection will present the best-case scenario. Another, which assumes that Addendum I will be approved and the entire commercial quota caught, yields a fishing mortality rate of 0.1992. The third scenario assumes that all state commercial quota, with the exception of New Jersey’s, which was reallocated to the recreational fishery, will be caught, and results in a slightly lower fishing mortality rate of 0.1987.

The fishing mortality rates of the latter two scenarios come perilously close to the fishing mortality threshold of 0.2013. Since any such projection includes some degree of uncertainty, it is possible that, when such uncertainty is considered, either one might lead to overfishing.

 

Now, anglers must wait until the Management Board meets on May 2nd, to find out what the Management Board chooses to do with the Technical Committee’s projections. It has the authority to take remedial action, but it is not required to do anything at all. That’s because the projections provided by the Technical Committee do not constitute advice provided by a formal stock assessment or assessment update.

Yet, even if the projections were derived from an assessment, they wouldn’t have tripped any of the triggers that require management action, the most pertinent of which reads, “If [the fishing mortality rate] exceeds the target for two consecutive years and the female [spawning stock biomass] falls below the target in either of those years, the striped bass management program must be adjusted to reduce [fishing mortality] to a level that is at or below the target within one year. [emphasis added]”

 

Since the fishing mortality rate has so far only risen above target in a single year, 2022, action is not yet required. If the Management Board chooses to act, it will only be because it decides to act prudently, to head off a problem, rather than waiting until a crisis has already occurred.

Will it choose to do so?

If history is any guide, the answer is, unfortunately, no. When faced with such a choice in the past, the Management Board has always eschewed precautionary action. Perhaps the best example occurred at its November 2011 meeting when, after being advised by a recent stock assessment update that “Abundance and exploitable biomass of ages 8+ [striped bass] are expected to decline regardless of the recruitment scenario,” and that “Female [spawning stock biomass] will fall slightly below threshold by 2017,” meaning that the stock would become overfished by that time, the Management Board chose to do nothing.

 

Its mood was well expressed in the comments of Pat Augustine, then the Governor’s Appointee from New York, who observed, “[there are] the 688 pages of documentation that say that the stock is pretty doggone healthy—that we’re looking at a sustainable yield and at the same time looking at sustainable spawning stock biomass to carry it through a minimum of 2016, minimum, unless there is a catastrophe and then that will be something else to worry about…We haven’t had a real spawning disaster to even trigger one of the triggers within the [fishery management plan], and we’re sitting here gnashing our teeth as to which way to go.”

The Management Board’s comments and actions during the Amendment 7 process provided reason to hope that it has become more responsive to the needs of the striped bass stock than it was a decade ago, but there is still no assurance that it will act in the face of 2022’s increased landings, even though the management plan requires it to rebuild the stock by 2029, and the latest projections make it clear that such rebuilding is very unlikely to happen unless fishing mortality is reduced.

That leaves the Management Board with three options.

It can begin a new management action at its May 2nd meeting, to reduce fishing mortality and put the stock back on track to rebuild by 2029. Given that the current fishing mortality rate isn’t too far above its target level, narrowing the slot limit, and so making it harder to catch a legal-sized fish, might be enough to set things right.

It can sit on its hands and do nothing until after the 2024 stock assessment update is completed. At that point, given the Technical Committee’s projections, it will probably take very substantial restrictions, almost certainly including substantial closed seasons, to accomplish rebuilding in the two or three years remaining to get the job done.

Or, it can renege on the commitment it made to the public, and not rebuild the stock at all. It can demonstrate that the language of the management plan, which requires the Management Board to rebuild the stock within ten years, is no more than words inked on paper, void of any binding legal or moral effect. As it makes its excuses for why the stock was not rebuilt by 2029, it can make up other excuses as to how the poor recruitment in 2019, 2020, 2021, and 2022 will prevent rebuilding from occurring at any time in the foreseeable future as well.

Hopefully, that latter scenario will not occur.

Hopefully, the Management Board will act responsibly, with precaution, and with eyes sharply focused on the future health of the stock.

Hopefully.

On May 2nd, we will know.

-----

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

 

WHEN FISH STOCKS DECLINE

 

I never knew that it could be so hard to buy a container of clams.

My boat went into the water ten days ago, and with a good offshore forecast for Friday, I thought that I would run outside and see if there might be some fish on our local.  So on Thursday, I ran the boat to a nearby fuel dock, topped off the tanks, and tried to buy a gallon of clams, along with some ice to put in the cooler.

It turned out that neither was available.  The dock hadn’t turned on its ice-maker yet, and wasn’t planning on stocking clams—or any other frozen bait—for another week or so.

That created a bit of a nuisance, but I figured that I could always stop at a 7-11 to buy ice the next morning, and pick up some clams at another shop.

It turns out that the ice was no problem, but I was very wrong about the bait.  I stopped at two more shops, including one that was big enough to have a national clientele, but there was nary a clam to be found.

At that point, I was getting frustrated.  It was April 19^th, which from a historical perspective, was well past the start of the local fishing season.  The South Shore of Long Island, New York is a traditional hotbed of fishing activity, both inshore and offshore.  It's a place where, if an angler wasn’t too choosy about what they caught, fish had always been available 24/7/365.

Most of the fishing during the coldest quadrant of the year—say, from mid-December through mid-March—was usually done on for-hire boats, most particularly the big party boat fleet moored at Captree State Park, which targeted winter cod, ling (red hake), and pollock on offshore wrecks, with blackfish (tautog) a lesser but still important part of the mix.  But beginning around the middle of March, private boats would start being launched, as anglers looked forward to St. Patrick’s Day, the unofficial start of the winter flounder season.

But note the language that I used:  “Historical perspective.”  “Traditional hotbed.”  “Fish had always been.”

Lots of past tense, and with good reason.

As I said, it was April 19^th.

When I moved to Long Island forty years ago, the winter flounder season would have been well underway, with the Captree party boats sailing daily, fishermen lined shoulder-to-shoulder along their rails.  Private boats would have been clogging the flats and channels where flounders fed, while shorebound anglers cast their baits from public piers, parks, and bulkheads.  

Atlantic mackerel would not have been be too far away, as offshore anglers waited for them to show, hoping to fill their freezers with fish that would later serve as bait for shark and tuna.  The first striped bass would be in the back bays, with a few scattered fish on the open beaches, while somewhere nearby, the very first bluefish of the season would be caught.

But as I eased down the State Boat Channel last Thursday morning, all of that was clearly in the past.  Outside of a single commercial boat outside Babylon Cove—I’m guessing he was setting crab pots—the upper part of the bay was empty, as was the state channel.  There were two empty trailers at the Captree boat launch, so some folks were on the water, but no cars to speak of at the party boat dock; from what I could tell, not a single one of those boats had sailed.

There was a little more life in the lower bay.  Three private boats fished in the shadow of the Robert Moses Bridge, probably hunting striped bass, although they might have been hoping that an early blackfish or two had already moved into the inlet.  A fourth boat, definitely targeting stripers, drifted along the south side of the inlet.

That was all.

It was thus pretty clear why I hadn’t been able to find any clams:  There weren’t yet any fishermen to buy them, because the fish that they used to target in the spring were just about gone.

The April fishery on the South Shore has, for all practical purposes, died.

Winter flounder collapsed close to two decades ago, although the writing was on the wall by the late 1980s.  

When New York’s Department of Environmental Conservation tried to put in regulations to stem the flounder’s decline around 1987 or 1988, they got a lot of pushback from the recreational fishing industry, particularly the party boat industry, which argued that customers needed the “perception” that they could have a “big day,” which meant keeping a pailful of fish, or they wouldn’t come out.  Such comments led the DEC to adopt regulations less restrictive than needed to protect the population, and began a series of management measure that were always too little, too late to stem the stock’s decline.

New York was not alone in such practices, nor can recreational fishing be blamed as the sole cause of the flounder’s decline. 

The New England Fishery Management Council was responsible for regulating the commercial and recreational flounder fisheries in federal waters; it allowed the stock to be continually overfished for decades, refusing to impose annual commercial catch limits for any groundfish species until compelled to do so by Congress.  

Patricia Kurkul, once the regional director of NMFS’ Greater Atlantic Regional Fisheries Office, did eventually impose a moratorium on harvesting southern stock winter flounder near the end of her tenure, but her successor, John Bullard, soon reopened the fishery once he took over, perhaps hoping to provide the northeastern trawler fleet with something to fish for after annual catch limits for cod were slashed.

Inshore, the Atlantic States Marine Fisheries Commission adopted a management plan that required managers to constrain fishing mortality to a rate that would maintain the stock’s spawning potential at a level no less than 40% of that of an unfished stock,  However, in January 1999, after learning that the spawning stock biomass had fallen below that level, the ASMFC’s Winter Flounder Management Board suspended states’ need to comply with such requirement, arguing that that federal measures remained unchanged, and that the ASMFC’s management plan should be consistent with NMFS’ regulations. 

That logic somehow didn’t apply when NMFS imposed a moratorium on landing southern stock flounder; while the ASMFC tightened recreational and commercial management measures, it still allowed harvest to continue.  However, after NMFS again allowed flounder harvest, and liberalized the landings limit as well, the Management Board again saw the virtues of following federal managers’ lead, and increased the length of the recreational season from sixty days to ten full months, despite the fact that the stock had already collapsed.

The recreational fishing industry opposed a flounder moratorium, arguing that they represented the first fish caught every year, and brought customers into shops that had been cash-starved for months.  It never urged managers to conserve the flounder resource.

Now boats don’t sail, and tackle shops don't need to stock much bait in April, because without fish, customers are nearly as scarce as the flounder.

Flounder represent an extreme example, but no matter the species, the recreational fishing industry seems disinterested in the long-term health of fish stocks.  Here in New York, we saw representatives of the for-hire fleet oppose the harvest reductions proposed in Addendum VI to Amendment 6 of the ASMFC’s striped bass management plan.  We saw a mob howling its discontent when the ASMFC tried to adopt science-based tautog regulations.  We saw resistance to measures intended to restore the overfished bluefish population.

A former DEC employee once told me that one of the more aggressive tackle shop owners even said something like (I’m probably not getting this down verbatim, although I am accurately reflecting the sentiment)

“I can’t worry about the long term; I need to get through this season first.”

And thus, even this late in April, few people are fishing, and the shops don't need to sell clams..  The season has grown shorter, and significantly less profitable, for April revenues, once lost, are gone forever.

The industry's short-term focus is, unfortunately, not limited to Long Island, New York, or the northeast. At the national level, the recreational fishing and boating industries are working to undercut federal fisheries management by expanding recreational landings, regardless of the long-term impacts of such efforts. 

We saw that in the fight to pass the so-called “Modern Fish Act” in 2018.  We see it in the continuing efforts to sabotage federal red snapper management in the Gulf of Mexico.  We saw it in the recent adoption of the so-called “Harvest Control Rule” by the Mid-Atlantic Fishery Management Council, despite scientists, and council staff’s, reservations.

So far, the industry has been doing pretty well, as it manages  to convince enough anglers that, if they only buy enough high-tech gear, and fish from boats big enough and fast enough, and laden with enough cutting-edge electronics, to reach the remaining concentrations of fish, they can still be successful.

It has invested considerable talent and resources in lobbying federal and state decisionmakers, urging them to adopt regulations that allow anglers to land more fish now.

But they don’t seem to realize that, at some point, the party is going to end.  You can overexploit a resource for only so long.

Perhaps they lack the long-term perspective to understand that, despite all of today’s technological advances, from a catch-per-unit-effort standpoint, we're catching fewer fish today than we did back in the early 1960s, when we fished from slow wooden rowboats, and rarely ventured more than 15 or 20 minutes from the dock.

But if popular fish stocks continue to decline, following the path of striped bass and bluefish, of winter flounder and amberjack, of Gulf cobia and New England cod, the industry will eventually learn that the number of anglers will also decline, for, as I regularly note, fishing in an empty bay, ocean, or sound soon loses its appeal.

On the plus side, such waters won't be very crowded during much of the year.

And the tackle shops won't have to stock any clams at all.

 

 

 

 

IN SEARCH OF A REAL "RIGHT TO FISH"

 

Every April, New York’s Marine Resources Advisory Council holds a special session, when it focuses on pending legislation and provides its views on which bills ought to pass, which ought to be opposed, and which might be of value if amended in the right way.  Each MRAC member is provided with a list of bills that might be discussed at the meeting.

This year, as in the past, one of the bills we could have discussed (but ultimately didn’t) was A3348, which would amend the state’s constitution to create a right to hunt, trap and, most relevant to this discussion, fish.  A3348 is very brief, taking up less than one page; it would add the following language to New York’s constitution:

“Hunting, trapping, and fishing and the taking of wild animals, birds and fish are a valued part of our heritage and will be forever preserved for the people.  Fish and wildlife shall be managed by state laws and regulations that provide persons with the continued opportunity to take, by traditional means and methods, species traditionally pursued by hunters, anglers and trappers.  Fish and wildlife management, including taking, shall be consistent with the state’s duty to protect this heritage and its duty to conserve wild animals, birds, and fish, and shall be subject to reasonable regulation as prescribed by state statute.”

I’m in general agreement with the intent of the bill, which is to maintain people’s ability to hunt, trap, and fish, and the ability of the state to glean the economic benefits that accrue from such activities.  I also agree with the language in the memo accompanying the proposed legislation, which concludes,

“Because of the public dollars and license fees that have supported game reintroductions and habitat improvements, the increasing suburbanization of the state, continued loss of open and wild areas, the distance between the population and our subsistence roots, and their foundation in our culture and history, particularly in our rural areas, the time honored and respected pastimes of hunting, fishing and trapping should be recognized in our constitution as rights of the people.”

The problem with the bill, though, is that it doesn’t go far enough.  It might ensure that people can carry a bow or firearm in the woods, set traps, and ply the state’s waters with various baits and lures, but it doesn’t do anything at all to assure that there will be sufficient fish and wildlife available to make such efforts worthwhile.

A long time ago, when this blog was still young, I noted that if you want a fishing industry, it helps to have fish.  That hasn’t changed.  Yet nothing in the proposed “right to fish (or hunt, or trap)” legislation requires the state to ensure that when fishermen venture out, there will be enough life in the water to make it worth at least trying to catch something.

Fishing in an empty ocean gets old pretty fast.

Here in New York, we are fortunate enough to have a saltwater fishery management policy that has been established by statute.  Section 13-0105(1)(a) of the Environmental Conservation Law begins,

“It is the policy of the state that the primary principle in managing the state’s marine fishery resource 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…”

As far as I can tell, that policy has never been interpreted by the courts, so we can’t be completely sure what phrases like “sustained in usable abundance” actually mean, but the statute nonetheless seems to make a strong pro-conservation statement.  

Assuming that an appellate court eventually agrees, ECL Section 13-0105 probably creates a much more valuable right to anglers hoping to actually catch fish than does the proposed change to the state’s constitution, which merely ensures that anglers may cast a line into state waters, but leaves open the possibility that such waters could be all but devoid of life.

Section 13-0105 also states that

“The state shall actively manage its marine fisheries and shall endeavor to protect and conserve habitats; restore habitats in areas where they have been degraded; and maintain water quality at a level that will foster occurrence and abundance of marine resources.”

This is where things begin getting complicated.  The law requires “the state” to protect habitat and maintain water quality, but just who in “the state” has the power to do so?  The Department of Environmental Conservation has the authority to regulate many (but not all) marine fisheries, and some pollution sources, but it is very, very far from omnipotent.  

For example, one of the biggest problems we have on Long Island is harmful algae blooms in our coastal bays.  Such blooms are fed by nitrates that run in from the land—from septic tank fields, from fertilizer runoff, from other sources of non-point source pollution.  It is a problem that the DEC has little ability to resolve.

The legislature has not granted the Department the authority to require the replacement of aging and defective septic tanks, or to mandate that homeowners hook up to sewers when such sewers become available (although in other places, such as the town in Connecticut where I grew up, hooking up to available sewer lines is required by law).  It has not given the Department the authority to mandate how much and how often people may fertilize lawns, golf courses, and other private lands.  

Absent specific actions by the legislature, there are very real limits to what “the state” is able to do to protect marine fish habitat and maintain water quality.

In that, New York is not alone.

Recently-published commentary notes that there is a bill pending in the Florida legislature that, like A3348 in New York, would enshrine the right to hunt and fish in the state’s constitution.  But then the piece notes that

“when it comes to clean water—upon which our health, local economies, property values and wildlife (including fish) depend—the Legislature is looking to restrict the rights of citizens, exercised through their local governments, from having any impact upon the quality of Florida waters and aquatic ecosystems.”

That’s because Florida’s legislature is actively considering, and will very probably pass, legislation that would outlaw

“counties and municipalities from adopting laws, regulations, rules, or policies relating to water quality or quantity, pollution control, pollutant discharge prevention or removal, and wetlands.”

Apparently, state legislators are afraid that local governments might take action when the state did not, implement effective regulations to clean up and/or protect local waters, and in doing so upset real estate developers, whose incomes depend, in part, on their ability to lay down more runoff-prone pavement, create untold thousands of acres of new fertilizer and pesticide-laden lawns and, of course, attract thousands of new residents, whose sewage will add to the organic waste that is flowing into local waterways and feeding the harmful algae blooms that now regularly plague both coasts of the state.

Real estate developers, after all, vote and make very large campaign contributions.  Fish do neither.  So the legislators’ proper course of action is clear--at least to them.

While protecting the developers who degrade the state';s waters, they can still throw a bone to anglers, creating a meaningless “right” to fish in waters where the fish themselves are becoming ever harder to find.

The opinion piece quotes Blair Wickstrom, senior editor of Florida Sportsman magazine, who accurately noted that

“without fish there is no [fishing] industry, there is no way of life.  And without clean and healthy water there are no fish.”

But the sponsors of what has been dubbed “The Dirty Water Act” see things differently, with Rep. Randy Maggard (R-Dade City), the bill’s sponsor in Florida’s House of Representatives, complaining that

“Cities and counties are using water as a weapon to slow down their growth,”

as if growth is the only good, and municipalities which would rather maintain the quality of their waters and their quality of life, rather than mindlessly expand, are some inherent evil that must be expunged.

Which, I suppose, is true—if you’re a real estate developer or belong to their army of obedient flunkies.

So instead of legislation protecting the waters where the fish live, we get legislation that guarantees our right to cast lines into waters that, at some times and in some places, are scarcely more appealing than an open sewer.

It’s possible that fish can’t even live there, but then, as they say, it’s called “fishing,” not “catching,” so some will have you believe that as long as your right to fish is protected, bills protecting the fish and their habitat can be put aside.

Of course, we don’t all believe that.

CoastalReview.org, the online news outlet maintained by the North Carolina Coastal Federation, recently published a profile of Capt. Tom Roller, a light tackle guide.  I’ve had the opportunity to meet and speak with Capt. Roller a couple of times, and it isn’t hard to notice that he’s both a passionate fisherman and a passionate advocate for fish and their habitat.

As he observes,

“Healthy fisheries take care of their fishermen.”

And he doesn’t only talk a good game; he goes out and works for good outcomes.

“I love our natural resources, and I love the North Carolina coast—and all outdoor places—so much that I have been hyperfocused on being involved in conservation and management, in an effort to hopefully conserve our fisheries and ecosystems for future generations…

“I’ve served on federal advisory panels for bluefish, Spanish mackerel and king mackerel.  In the state I’ve served on advisory committees for southern flounder and blue crab.  Currently I am appointed to the main fisheries rulemaking body in North Carolina, the North Carolina Marine Fisheries Commission.”

He also holds a seat on the South Atlantic Fishery Management Council.

And you’ll note, fisheries conservation and management takes up his time; it isn't wasted on the fluff of creating a right to fish in what might well be empty waters, for fishermen need healthy fisheries far more than they do some largely meaningless “right.”

So if legislators want to really help fishermen, recreational and commercial alike, they ought to start thinking of the sort of “rights” bill that will really do the job.  A bill that doesn’t merely confer a right to cast a line, but one which creates a public right to clean waters and healthy fisheries.

If legislators want to create fishing-related rights, what about giving the public the right to sue developers, if the government fails to act, allowing them to confront those who destroy coastal or riparian habitat, allow sewage- and fertilizer-related nitrates to flow into the bays, or otherwise degrade coastal waters, and compel such developers to clean up the mess they created at their own expense?

Or how about creating a right to compel a state—or an interstate body—to properly conserve and manage the fisheries under its jurisdiction?  Federal fishery management actions are already subject to some judicial review, and anglers in North Carolina are currently suing that state, trying hard to establish such a right there. 

Maybe, in the end, the whole debate about the “right to fish” comes down to basic grammar, and the defined parts of speech.

Make “fish” a verb, and the right is all about action,

“to try to catch fish, for example using a net or a fishing rod.  [emphasis added]”

Success is not a necessary element of that action, nor is even the possibility of success.  One may fish, in good faith, in lifeless waters, whether sterile or catastrophically polluted, so long as one believes that fish might be there.

And for just that reason, such right is of dubious worth.

But make “fish” a noun, and the right becomes one of substance.

It is no longer merely protects one's ability to cast a line into degraded and largely empty waters; instead, it becomes a right to have healthy and abundant coastal seas, where life thrives and going fishing is truly worthwhile.  

It creates an environment where those who dredge and fill coastal marshes, degrade estuaries, or allow pollutants to flow from their lands and buildings, no matter how far upstream—as well as the government entities which condone such actions--could be held accountable for encroaching on private citizens' right to have and enjoy fish in all of their myriad forms.

Should a legislator with the vision and courage to create that sort of “right to fish” ever step forward, a new era might truly begin.

 

 

 

THE SAME OLD BULL***T ABOUT STRIPED BASS

 

It doesn’t really matter what the fishery is.

Start talking about imposing new regulations to rebuild a stock, or even to halt a stock's decline, and the first thing you know, somebody starts hopping up and down, eager to tell you why the new rules won’t work, why they’re not needed, and/or why the science is out of whack, and how the fish stock in question isn’t just healthy, but it’s so healthy that, for the sake of the ocean, we ought to be killing quite a few more.

If you’re a striped bass fisherman, and if you’ve attended some fisheries meetings, you know the sort of thing that I’m talking about.  

In the face of a stock assessment finding that the stock is both overfished and experiencing overfishing, we saw one set of folks who tried very hard to convince us that the bass stock was still healthy, but the fish had just moved far offshore, a position that immediately falls apart when you stop to realize that bass are an anadromous species that spawn well up coastal rivers, and thus would be picked up by state surveys during the spawning period if such a pool of offshore fish really existed (yes, bass sometimes venture offshore, following or looking for schools of baitfish, but research conducted in Massachusetts demonstrated that they all return inshore pretty quickly).

Then there’s the old “there’s so many striped bass that they’re eating everything else in the water” claim.  I mentioned one example of that in last Sunday’s post; another very typical comment came from Russell Dize, Maryland’s Governor’s Appointee to the Atlantic States Marine Fisheries Commission and its Atlantic Striped Bass Management Board.  At the October 2014 Management Board meeting, in response to efforts to reverse a decline in the spawning stock biomass by reducing fishing mortality by 25%, Mr. Dize said,

“I’ve been a commercial fisherman for 55 years in Maryland.  I’ve watched the striped bass come and go.  At this time, we’ve probably got more striped bass in the bay than I’ve ever seen in my life.  We’ve got so many striped bass that it’s affecting our crab-catching industry.  We are probably down to a low ebb last summer on crabs.

“One of the predators is rockfish, striped bass.  When the charterboats catch the striped bass and they clean them, you can count anywhere from ten to forty small crabs in the belly of a rockfish…”

Thus Mr. Dize checked two of the boxes; despite a peer-reviewed stock assessment that found the spawning stock biomass to be in decline, he was claiming that Chesapeake Bay held “more striped bass than [he’s] ever seen in [his] life.”  And, of course, those super-abundant striped bass were eating all the crabs, and thus should not receive more protection.

We always hear that sort of thing, and it’s pretty much expected.

But ever since the 2018 benchmark stock assessment came out, setting a higher biomass target than any previous assessment, we’re also hearing people start to wonder out loud whether such target was attainable.  The first such source of dissent was probably Maryland fishery manager Michael Luisi, who commented at the April 2019 Management Board meeting that

“currently the threshold reference point is 91,000 metric tons and 125 percent of that puts us at a target value, and when you look at the estimate of spawning stock biomass that came out of the benchmark.  We have never achieved the target in all of that time as we’re evaluating that.”

Mr. Luisi can be excused his comment, for he thought it was true at the time, even though the 2022 stock assessment update revealed that, despite an excessive fishing mortality rate, female spawning stock biomass actually did rise above target for four consecutive years, 2002-2005 and, again despite above-target fishing mortality, managed to fall just short of the target during the years 2008-2010.

It’s much more difficult to excuse those who, despite the information provided in the 2022 assessment update, are still trying to argue that the current biomass target isn’t realistic, justifying their positions by saying things like “it has only been attained” two (or three, or four) times “in the past 40 years.”  

While it would be easy to overlook such comments, and write them off to ignorance, some are being made by folks who are not ignorant at all, but are very familiar with the data and the fishery management process. 

Given where some such comments are coming from, there is very real risk that many anglers will begin to believe them, and start undercutting the ASMFC’s efforts—and the ASMFC’s obligation—to rebuild the stock by 2029.

So to see where such comments go wrong, let’s take a look at them from a few different angles.

The right place to start is probably in the past.

When people say things like “Spawning stock biomass only reached target two [or three, or four] times in the past 40 years, we’re talking about the period 1983-2022.  The striped bass stock collapsed in the late 1970s, and remained in a collapsed state throughout the 1980s, with female spawning stock biomass bottoming out in 1987.  So for the first seven years of that 40-year period, managers were trying to figure out how to deal with—and recover—a collapsed striped bass stock.

To argue that we can’t achieve the target biomass today, because we didn’t achieve it during a period when the stock had actually collapsed, is really no argument at all.

Taking the 1980s out of the picture, because of the stock collapse, cuts the relevant time period down to 33 years.  But even considering that shortened length of time, the arguments against the current biomass target necessarily fail.

After all, once a stock collapses, it has a long, long way to go to get back to its target level.  The 1990s were a time of rebuilding, with the first six years, from 1990 through 1995, seeing the spawning stock biomass raised to the threshold level; at that point striped bass were no longer overfished. 

Of course, rebuilding was only partway done at that point; the stock was still waxing toward its target level.  Thus, it’s not reasonable to consider those six years when trying to decide whether the target is reasonably achievable, for rebuilding was still underway.

That contracts the rebuilding skeptics' 40-year reference period even more, down to just 27 years.  And even then, striped bass abundance, measured in female spawning stock biomass, was still on an upward trend. 

It wasn’t the sharp upward trend demonstrated between 1988 or so and 1995; striped bass recruitment varies a lot from year to year, depending on environmental conditions on the spawning grounds, so after ’96, there was some retrenchment.  But a full rebuilding was achieved by 2002, despite the recreational regulations that prevailed at the time, which allowed anglers on the coast to keep two striped bass at least 28 inches long.  

And despite such rules, which allowed fishing mortality to creep above its target rate, spawning stock biomass remained above target through 2005.  The fact that the stock began experiencing overfishing in 2004, and that such overfishing became more severe through 2007, then forced spawning stock biomass below the target once again.

During the period 2004-2017, the striped bass stock suffered overfishing in all but three years, and in one of those years, the fishing mortality rate was just about equal to the overfishing threshold.  Under such conditions, it’s not reasonable to expect the stock to achieve target biomass.  

It’s far more reasonable to expect the stock to become overfished which, in the real world, is exactly what happened.

History thus teaches that attaining target biomass is not an impossible dream.  To do it, we only need to keep the fishing mortality rate at or below the fishing mortality target.  It’s not all that difficult to do so, although it will require a more dynamic sort of fisheries management than we normally see at the ASMFC.

Typically, the ASMFC has engaged in what might best be described as “plug-and-play” fisheries management.  It waits until a benchmark stock assessment is produced, which usually happens about every five years.  If the fishing mortality rate is too high (historically, the Management Board has been very slow to act if biomass has fallen too low), the Management Board then adopts measures intended to reduce the fishing mortality rate back to its target level.  Such regulations then remain in place until the next benchmark stock assessment, regardless of how the fishery might perform in the meantime.

Such an approach to striped bass management allows the stock to deteriorate for years before any action is taken to correct the problem; over the past decade, it has allowed the stock to become overfished because the Management Board has failed to intervene when the first signs of excessive fishing mortality appeared.

The Management Board has always preferred to address an existing crisis, and has always seemed averse to early intervention, that might head off the crisis before it occurs.

Right now, we know—and, more importantly, the Management Board knows—that fishing mortality is well above the fishing mortality target, although the stock is not yet experiencing overfishing.  To rebuild the stock, the Management Board need only reduce the fishing mortality rate to its target level—or maybe a little below—to have a better than even chance of rebuilding by the 2029 deadline.

That can probably be accomplished merely by narrowing the slot size limit—now, 28 to 35 inches—to something like 28 to 30, or 28 to 32, or whatever other configuration that the Atlantic Striped Bass Technical Committee determines will get the job done.

And once the female spawning stock biomass is rebuilt to target, we can address the other flaw in the “four out of forty years” argument—the assumption that a stock must always remain at or above target to be considered healthy.

In fact, that doesn’t happen. 

While a rebuilding plan is intended to restore the spawning stock biomass to its target level, once that is accomplished, striped bass abundance will naturally fluctuate.  Should conditions favor strong recruitment, spawning stock biomass may well rise above the target, and stay there for a few years.  Should unfavorable conditions prevail, as they have for the past four years (and will probably be the case this year as well), abundance will drop below target for a few years, until spawning conditions improve.

Such fluctuations are contemplated in the ASMFC’s management plan.  A provision in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass states that

“If female [spawning stock biomass] falls below the target for two consecutive years and the [fishing mortality] rate exceeds the target in either of those years, the striped bass management program must be adjusted to rebuild the biomass to a level that is at or above the target within an established timeframe [not to exceed 10 years].  [emphasis added]”

In the end, the fishing mortality rate is the key to it all. 

Keep it at or below target, and biomass will eventually come close to, and sometimes exceed, its target as well.  If recruitment conditions are poor, spawning stock biomass may well remain below target for a while, but over the long term, so long as fishing mortality is adequately constrained, spawning stock biomass will, in time, reach the biomass target.

That’s what the “just four times in forty years” crowd forgets, or at least forgets to mention.  Constraining fishing mortality is a prerequisite to having abundant striped bass. 

In the 20 years [because, as we’ve illustrated, 40 years is a meaningless measure] since striped bass were fully restored in 2002, striped bass fishing mortality has only been below the fishing mortality threshold four times, in 2006, 2008, 2020, and 2021; for the rest of that time, overfishing has occurred.  Given that, it is hardly surprising that abundance has waned.

But keep fishing mortality below the fishing mortality target—something we’ve successfully done as recently as two years ago—and rebuilding biomass back to its target level becomes a very achievable goal.