"FULL BOAT LIMITS" AND OTHER THINGS THAT AREN'T EXACTLY TRUE

 

Part of my day-to-day routine involves keeping abreast of the fisheries issues that are spurring debate along the United States coast. So I was routinely perusing a piece on party boat fishing for black sea bass somewhere off the Delaware coast when I came across the following line:

“…I was busy cranking in black sea bass on every drop but one.  On three drops, I had doubleheader keepers…I ended the day with 20 keepers, of which five were distributed by the mates to anglers who did not fill their limits.  It was a wonderful day.”

Someone might casually read those words, and see nothing particularly remarkable—except, perhaps, that the writer had a particularly enjoyable day.

The problem is, Delaware’s daily bag limit for black sea bass is just 15 fish, so it appears that the author of the piece didn’t only have “a wonderful day,” but that he admitted keeping five fish over the legal limit. 

In this case, that might not matter, because federal fisheries law would probably condone what he did, so long as everyone on the boat stayed within their aggregate limit, and the applicable Delaware regulation reads,

“It shall be unlawful for any recreational fisherman to have in possession more than 15 black sea bass at or between the place where said black sea bass were caught and said recreational fishermen’s personal abode or temporary or transient place of lodging during the period of May 15 through September 30 and October 10 through December 31,  [emphasis added]”

so by the time the boat returned to Delaware waters, where Delaware regulations apply, the angler would only have had 15 fish in his possession.

There might be some point that I’m missing that would change the analysis, because I’m not an expert on Delaware law, but it appears that the angler in question probably acted within the law.

But the same behavior would be clearly illegal here in New York, where the relevant regulation reads,

“It is unlawful for any person to take or possess on the waters of the marine and coastal district…fish…in excess of the possession limit or trip limit specified for such species…  [emphasis added]”

While the Delaware regulation focuses on possession, the use of the phrase “take or possess” in the New York rule makes it clear that an angler cannot escape a bag limit violation simply by giving over-limit fish away; once an angler has “taken” a fish, that fish counts against the angler’s daily limit, whether the angler keeps it or gives it to someone else.

Yet the same practice described in the Delaware piece—giving away over-limit fish to less successful anglers—is common practice on New York party boats, too, regardless of what the regulations might say.  New York regularly advertise

“keeping a full boat limit”

of striped bass or some other species, and there is a very real difference between saying that a vessel kept “a full boat limit” and saying that every angler on board managed to catch and keep a legal bass.

Perhaps the biggest difference is that in New York, and in a number of other states, the latter is legal, while the former is not.

It’s not just party boats anglers who fall into the “boat limit” trap; charter boat and private boat anglers also typically pool their landings, taking care only that they don’t exceed the aggregate bag limit of all the people on board.  That’s not how bag limits generally work, although are some exceptions; the original bluefish management plan provided that

“On vessels with several passengers, the number of bluefish contained on the vessel may not exceed ten (or the adjusted limit) times the number of people aboard the vessel.”

But absent such specific provisions, bag limits are personal, not collective, even though many people believe that sharing “boat limits” is perfectly fine.

In truth, although it’s more likely that an angler will be ticketed and fined for boat limit issues than it is that he’ll win the top Powerball prize, neither event is very likely to occur.  As a practical matter, even if law enforcement agents board the boat, so long as no one possesses more fish than the law allows, no one is going to suffer any legal consequences.

It thus comes down to a matter of ethics, and as Aldo Leopold once observed,

“Ethical behavior is doing the right thing when no one is watching, even when doing the wrong thing is legal.”

Of course, in the case of boat limits, doing the wrong thing often isn’t legal, but given the lack of enforcement, it might as well be. 

In the end, does it matter?  The answer is probably yes, if only because the number of fish that anglers keep in any given season is considered when the regulations for future seasons are being devised.

That’s because fishery managers have only three tools that they can use to control recreational landings and keep them at sustainable levels: bag limits, size limits, and seasons.  To calculate an effective set of management measures, managers review the past performance of the fishery to determine how each factor affected overall landings.  That review includes a determination of the number of fish caught on an average recreational trip.

Anglers don’t limit out every time that they go fishing, so the average number of fish caught per trip is always below—often far below—the bag limit.  That means that when harvest reductions are needed, bag limits often have to be slashed, sometimes more than 50 percent, to achieve a needed reduction in fishing mortality.  Such fact is exemplified in a staff memorandum sent to the Mid-Atlantic Fishery Management Council in advance of its December 2021 meeting, when the Council was confronting a potential 56% reduction in recreational scup landings.  The memo advised that

“Major changes in the bag limit would be needed to notably reduce coastwide harvest because most anglers do not take the full bag limit of 30 to 50 fish.  For example, changing the bag limit from 50 to 25 fish in state and federal waters would result in an estimated 3% decrease in total harvest.  Changing the bag limit from 50 fish to 7 fish in state and federal waters would result in an estimated 51% decrease in total harvest.”

Managers determine the number of fish harvested on an average trip by taking the data collected during in-person dockside interviews, which provide interviewers an opportunity to count and measure interviewed anglers’ fish, and then applying that data to the entire universe of anglers.  Because a very small number of interviews can be used to estimate the total landings from millions of recreational trips, any irregularities in the data collected can bias the final results.    

Thus, boat limits can skew landings estimates, for if interviewers encounter someone who contributed excess fish toward a boat limit, they would not count all of the fish that such angler kept, while if interviewers encounter someone who took home fish that they didn’t catch, they would overcount such angler’s landings.  The precise impacts of such miscounts are difficult to predict, but they could conceivably lead managers to adopt regulations that were either more restrictive than necessary, or not restrictive enough to keep landings at a sustainable level.

While some argue that fishery managers need to devise a better way to estimate recreational harvest, no one has yet devised an approach that provides more accurate data, while remaining economically and operationally feasible.

Which brings us to vessel trip reports, better known as VTRs.

All party and charter boats that hold permits to catch species managed by the Mid-Atlantic Fishery Management Council have, since 2018, been required to submit electronic VTRs to the National Marine Fisheries Service within 48 hours after completing a trip.  In theory, VTRs provide a census of for-hire fishing activity which, because it’s being recorded first-hand by every for-hire boat in the fleet, provides far more accurate data than that afforded by estimates based on a relative handful of interviews of shore-based and private boat anglers.

For-hire vessels frequently argue that, because of such presumably superior data, they should be granted special privileges, in the form of unique size limits, bag limits, and/or seasons not enjoyed by the greater angling community.

But while the VTR data provided by for-hire vessels is theoretically better than that provided by angler interviews, it’s not completely clear whether the reality reflects such superiority, or whether VTR data is clouded by both intentional efforts to skew the numbers and by for-hire captains’ inability to accurately account for the number of fish caught and released from their vessels.

With respect to the latter issue, comments made by for-hire captains suggest that they don’t have any real idea of the number of fish that their customers are catching.  For example, after a well-known New Jersey party boat was boarded by state law enforcement personnel, who confiscated 819 illegal, out-of-season black sea bass, the captain commented,

“I didn’t think it was that many.  And I’m not getting paid by the State of New Jersey to take fish out of people’s buckets.”

So it’s a legitimate question to ask, if the same situation recurred today, would all of those 819 illegal fish show up on the boat’s VTR?  After all, while the captain “didn’t think it was that many,” he knew that some fish were taken.  What number would he have used?

At it’s March 2018 meeting, New York’s Marine Resources Advisory Council addressed the issue of for-hire compliance, and a for-hire vessel’s responsibility for customers’ over-limit fish.  The bulletin summarizing the discussion notes that one for-hire captain commented that

“It is simply not possible to count every fish that comes on board [because] the crew has other responsibilities,”

while another stated that passengers might object, perhaps violently, to a crew member’s efforts to look inside their coolers.  A law enforcement officer informed the Council that customers who exceeded the bag limit often abandoned their coolers when the boat was approached by enforcement agents, and that such abandoned coolers have contained up to 130 fish (when the bag limit was no more than 8).

If for-hire crew is too busy to count the number of fish that passengers keep, they certainly can’t keep track of how many additional fish such passengers released; if crew is unwilling to count the fish in passengers’ coolers, and if some of those coolers might hold one hundred or more illegal fish, are the boats’ VTRs really as accurate as the for-hire captains claim them to be?

And could the uncertainty in the VTRs’ data be compounded by intentional efforts to conceal certain information?

While it would be foolish to intentionally misrepresent the number of fish that customers keep, because such information can be easily checked should a boat be boarded, it’s just about impossible for fisheries managers to know whether the number of fish released is underreported. 

I’ve been told on good authority—by folks who themselves operate for-hire boats—that some vessel operators chronically underreport releases in the hope that, by doing so, they can reduce the estimates of release mortality, and so increase the number of fish that their customers might be allowed to keep.

Such intentional underreporting was seemingly evidenced in some VTR data that I had a chance to see, which was obtained through a freedom of information request.  It listed the striped bass retained and released by one state’s for-hire fleet over the course of a year.  There were some striking anomalies.

For most boats, the number of bass killed was close to the number of bass released, although for a few, the proportion of releases was significantly higher.  That’s the sort of thing that one might expect for a year when the 28-inch minimum size was still in place, and fish both under and over the minimum were available to anglers.

But there were some boats that really stood out, because while they kept good numbers of bass, they didn’t report releasing even one, single fish.

One boat made 18 trips, carrying nearly 100 passengers, and managed to harvest 130 bass without catching a single short, for it reported no release.  Other boats found a way to keep 106, 115, 119, 132, 154, even 334 legal bass, without encountering a single fish that they had to release.

Those just aren’t credible numbers.

While it might, in theory, be possible for seven boats to, collectively, land nearly 1,100 bass without catching even one fish that had to be returned to the water, in the real world, that’s just not going to happen.  No one familiar with the fishery is going to believe that it’s possible for such boats to make 177 trips without encountering a single undersized bass, although that’s what the data shows.

It's a lot easier to believe that some of the boats just failed to report the fish that they released although, with no way to ground-truth the VTR data, it’s impossible to know for sure.

But maybe that VTR data isn’t quite as accurate as folks claim it to be.

And that matters.

Last Tuesday, the Mid-Atlantic Fishery Management Council, meeting jointly with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board, recommended eliminating the federal closed season for scup, and allowing fishing to continue throughout the year.  Eliminating the closures would permit boats to fish during the first four months of the year, a time when most private boats are laid up on land, and the for-hires dominate the fishery.

On its face, that would seem a good thing, because the impacts of the open season would largely be documented on VTRs.

However, one of the only arguments against eliminating the closure was that it might lead to a substantial bycatch, and substantial dead discards, of black sea bass, which can be found on many of the same wrecks where scup are caught. 

It would be nice to believe that, if the early scup season is eventually opened, fishery managers will receive good, reliable data on the number of black sea bass that were incidentally caught, and very possibly killed, while anglers racked up boat limits of scup.

But then, it would be nice to believe in many things that, in reality, probably are not true.