NEW JERSEY THREATENS STRIPED BASS REBUILDING

 

After the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board adopted emergency management measures, which would substantially reduce 2023 recreational landings, at its last meeting, there was reason to hope that the bass population was on the road to recovery.

After all, the emergency measure passed on a 15-1 vote, with only New Jersey dissenting.  With that sort of overwhelming support, it would seem that the emergency measures would be quickly adopted, and fishing mortality quickly reduced to something approaching sustainable levels.

And that might have happened—if the dissenter wasn’t New Jersey.  For as anyone familiar with East Coast fisheries knows, New Jersey has a long history of opposing conservation measures, no matter how badly needed, of gaming the system in order to kill more and smaller fish than its neighboring states, and of defying fishery managers who dare to suggest a need to keep a few more fish in the water, regardless of the species involved.

Given New Jersey’s history over the last thirty years, I wouldn’t be surprised to see the state’s legislature name the fish hog as New Jersey’s official animal.

Thus, I also wasn’t surprised by what happened a week ago, when New Jersey’s Marine Fisheries Commission met to discuss, among other things, the striped bass emergency measures.

On the surface, it seemed that there was little worth discussing.  The ASMFC had approved the emergency management measures, and under federal law, states must comply with the ASMFC’s management actions, or face a possible closure of the relevant fishery.  

But New Jersey has eluded the law before, most recently in 2017, when it proposed non-compliant summer flounder regulations that were so bad that no other member of the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board would even second New Jersey’s motion for discussion purposes, but managed to leverage then-governor Chris Christie’s relationship with the new Trump administration to convince the doddering Secretary of Commerce, Wilbur Ross, to override the ASMFC’s objections to such non-compliant rules.

Thus, whether or not a discussion of the emergency measures was merited, it went on nonetheless.  The Asbury Park Press reported that

“There were some strong words spoken by the public at the council meeting, as New Jersey grapples with the [ASMFC’s] decision.  Some such as Eddie Yates, a charter boat captain and United Boatmen member, said the ruling will only lead to more discards as fishermen will throw back more fish as they try to land a keeper.

“Ray Bogan, legal counsel for the United Boatmen of NY/NJ, questioned what benefit the state derives from being part of the ASMFC..

“The ASMFC made the decision to implement a smaller size limit to protect the 2015 year class of striped bass, which is reaching the plus 31-inch size right now, so as to meet a 2029 stock rebuilding goal.  However, it did so without public input which Bogan said ‘was not an open and fair process.’

“’We should not be subjugated to this type of regulatory process,’ Bogan said, suggesting the state go ahead and go out of compliance.

“Greg Cudnik, owner of Fishermen’s Headquarters in Ship Bottom, however, feared going out of compliance and subsequent moratorium if it got that far could jeopardize his tackle business.”

The Marine Fisheries Commission ultimately took no action on the emergency measures, instead referring the matter to its Striped Bass Advisory Committee, which is scheduled to act in June; shortly after that, the Marine Fisheries Commission is planning to hold a special meeting, at which a vote on the emergency measures will, presumably, be taken.  

Whether that will leave time for the state to put compliant regulations in place before the July 2 deadline remains to be seen.

It's still possible that such regulations will be adopted in a timely manner.  It's also possible that New Jersey will choose to go out of compliance and do nothing at all.  The members of the Management Board, and of the ASMFC’s Interstate Fishery Management Program Policy Board, ought to be thinking about what they will do if New Jersey opts for the latter course.

New Jersey’s recreational fishermen kill a lot of striped bass.  Back in 2020, the state convinced the Management Board to allow New Jersey anglers to fish under a 28- to 38-inch slot limit, which lets them kill fish—the majority of them mature females—larger than the 35-inch recreational maximum that was in effect for most of the rest of the coast.  And after New Jersey eliminated its commercial fishery sometime in the late 1970s or 1980s, it decided to allocate its commercial quota to the recreational sector, and to let them kill little striped bass—fish between 24 and 28 inches long—which include a lot of immature females that never get the chance to spawn even once.

In 2022, recreational fishermen between Virginia and Maine landed nearly 3.5 million striped bass, which weighed about 36 million pounds.  Roughly one-third of such bass—about 1.1 million fish, weighing 13.5 million pounds—died off New Jersey, which clearly makes New Jersey’s adoption of the ASMFC’s management measures crucial to the future of the striped bass stock.  

If New Jersey fails to adopt the emergency measures, it will become significantly more difficult to rebuild the striped bass stock by 2029, and given recent poor recruitment, perhaps for a very long time after that.  Thus, it is in everyone’s interest to ensure that New Jersey adopts the emergency measures as soon as possible, even if the state must be coerced into doing so.

The Atlantic Coastal Fisheries Cooperative Management Act provides,

“The [ASMFC] shall determine that a State is not in compliance with the provisions of a coastal fisheries management plan if it finds that the State has not implemented and enforced such plan within the timeframes established under the plan…”

Upon making such determination, the ASMFC must forward its findings to the Secretary of Commerce who, after making independent determinations that the state is, in fact, out of compliance with one or more management measures and that such measures are necessary for the conservation of the relevant fishery.  Assuming that the Secretary supports the noncompliance finding, she must declare a moratorium on fishing in such fishery.

While that sounds like a reasonable way to deal with a recalcitrant New Jersey, timing could make it all meaningless.  New Jersey could easily find a way to game the system once again.  

The next scheduled meetings of the Atlantic Striped Bass Management Board and the Policy Board will take place sometime between August 1^st and August 3^rd, with the Policy Board typically convening on the last day, to address any issues that might arise during the various management board meetings.  Assuming that New Jersey was found out of compliance by both relevant boards, the ASMFC would then have 10 business days—until August 12—to notify the Secretary of Commerce, who in turn would have up to 30 days—until September 11—to determine whether New Jersey failed to adopt a management measure that is necessary to conserve the striped bass resource.

After that, assuming a positive finding, the Secretary could delay imposing the moratorium for up to six months, at which point a new addendum to the management plan will have already rendered the adoption of the emergency measures moot.  At best, even a more timely imposition of the moratorium would allow the existing regulations to extend farther into the fall.

Under such a scenario, New Jersey would have effectively defied the will of the other 15 members of the Management Board, done significant harm to the striped bass stock and its chances of a full recovery, and escaped most and possibly all consequences for its intransigence.

But there could be a way to avoid such an outcome (assuming that New Jersey doesn’t decide to grudgingly honor its obligations as an ASMFC member and adopt the emergency measures, making any additional actions unnecessary).

First, the Management Board and Policy Board must assume that New Jersey will remain non-compliant, and tentatively schedule meetings to address the issue shortly after the Fourth of July (while July 2^nd is the compliance date, scheduling such meetings for Monday, the 3^rd is a little too much to hope for, given the long Fourth of July weekend).  Simply by doing that, they can cut a month out of the non-compliance process.

The Management and Policy Boards should then seriously consider making their findings under the Atlantic Striped Bass Conservation Act, rather than the Atlantic Coastal Fisheries Cooperative Management Act. 

Under the former statute, the ASMFC would need to notify both the Secretary of Commerce and the Secretary of the Interior of a non-compliance finding.  However, the secretaries would only be required to find that New Jersey was out of compliance with the Management Board’s emergency action; there would be no need to take the next step, required under the Atlantic Coastal Fisheries Cooperative Management Act, of determining whether such action was necessary to conserve the fishery.  That, alone, should streamline the secretarial process, and allow a decision to be made in less than the 30 day maximum period provided by law.

The Atlantic Striped Bass Conservation Act also provides that

“if the State is not in compliance, the Secretaries shall declare jointly a moratorium on fishing for Atlantic striped bass within the coastal waters of that coastal State,”

without specifying the time within which a moratorium must be imposed.  Such language suggests that any moratorium must be imposed promptly.

If the ASMFC called special meetings (which could be held virtually) to address New Jersey’s failure to comply, and then invoked the moratorium provisions of the Atlantic Striped Bass Conservation Act, they might be able to cut a month, and perhaps even two, off time it would take to put a moratorium in place.

In addition, violating a moratorium imposed under the Atlantic Striped Bass Conservation Act exposes the violator to substantial civil penalties, which could include assessments of as much as $100,000 (although in the real world, absent aggravating circumstances, they would be far less), and the possible forfeiture of

“any vessel (including its gear, equipment, appurtenances, stores, and cargo) used, and any fish (or the fair market value thereof) taken or retained, in any manner, in connection with, or as the result of, the commission of any act that is unlawful [after a moratorium has been imposed].”

Such provisions would go a long way to deter a for-hire operator from repeatedly taking his passengers “fishing for bluefish” in an area holding large numbers of bass once a moratorium has been imposed.

It’s unfortunate that, given the current state of the striped bass stock, that there is any need to seriously consider the possibility that New Jersey, or any other state, would put the future health of the stock in jeopardy by going out of compliance with the emergency measures.  However, New Jersey’s opposition to such emergency measures is an example of what happens when a state fishery management infrastructure—and by infrastructure, I include both the state agency and the organizations which allegedly represent recreational interests—is dominated by the for-hire fleet and other elements of a fishing industry concerned only with profits, which is unresponsive, and often hostile, to the concerns of the private anglers.

Yet such anglers' concerns were heard last night, at the first of four virtual hearings that the ASMFC has scheduled to address the emergency measures.  At that hearing, 17 out of the 19 persons who spoke supported the emergency action. Eight were anglers from New Jersey, who not only supported the emergency measures, but blasted their state for not clearly doing so.

It will be interesting to see whether that trend continues in the remaining three hearings.

It will also be interesting to see whether New Jersey listens to the voice of its anglers, or whether it will continue to heed the voices that speak neither for the resource nor for the anglers, but only for themselves.