NEW ENGLAND FISHERY MANAGEMENT COUNCIL AGAIN CONSIDERS HERRING BUFFERS

 

A little over three years ago, the New England Fishery Management Council adopted Amendment 8 to the Atlantic Herring Fishery Management Plan.  Upon its adoption, the Council stated that

“This amendment establishes an acceptable biological catch control rule that accounts for herring’s role in the ecosystem and prohibits midwater trawling in inshore waters from the U.S./Canadia border to the Rhode Island/Connecticut border.  Amendment 8 is intended to support sustainable management of the herring resource and help ensure that herring is available to minimize possible detrimental biological on predators of herring and associated socioeconomic impacts on other user groups.”

The adoption of Amendment 8 was hailed by a wide range of stakeholders, ranging from members of the small-boat and shore-based herring fishery to environmental groups to recreational fishermen and the whale-watching fleet, all of whom believed that the mid-water trawlers caused localized depletion of Atlantic herring, which left insufficient herring in inshore waters for the small-boat commercials to catch, and too few herring for the larger fish and whales sought by anglers, commercial fishermen and whale-watchers to eat.  Such stakeholders all claimed that the mid-water trawlers were causing real environmental and economic harm.

About the only people who were upset about Amendment 8 were the mid-water trawlers themselves, who denied that they were causing any environmental or economic harm to anything or to anyone, but knew with absolute certainty that Amendment 8 was causing economic harm to them.  In comments sent to NMFS opposing adoption of Amendment 8, the mid-water trawlers argued, among other things, that

“The best available science does not indicate localized depletion, nor does it find a difference in fishery removals by midwater trawl vessels compared to purse seine vessels, and this measure makes no attempt to align the restricted area with associated analyses and is an illegitimate political compromise,”

“The allocation of fishing grounds is not fair or equitable and does not promote conservation,”

“Restricting midwater trawling in inshore waters has no conservation benefit and does not minimize economic impacts,”

and

“Prohibiting midwater trawling inshore is arbitrary and capricious.”

After NMFS adopted Amendment 8 over the mid-water trawlers objections, the trawlers challenged the amendment in court.

And they won.

In finding for the plaintiffs, the United States District Court for the District of Massachusetts, which decided Sustainable Fisheries Coalition v. Raimondo, wrote that

“the Court finds that the Secretary has failed to find a rational connection between the facts found ant the choice to implement the exclusion zone.  A primary purpose of the rule is to ‘minimize local depletion and its associated user group conflict when midwater trawl vessels harvesting herring overlap with other user groups[.]  Yet, the Secretary could not identify any scientific evidence of localized depletion, let alone establish a link between [mid-water trawl] vessels and localized depletion…Though the Secretary contends that the agency was entitled to rely on the overlap analysis [showing that mid-water trawl vessels fished for herring in the exclusion zone at the same time that other user groups and predator species were present] as an alternative to the inconclusive localized depletion analysis, she fails to put forth any evidence that overlap is associated with localized depletion.  The overlap analysis may accurately predict user group conflict, but it is not a suitable replacement for independent evidence of localized depletion linked to [mid-water trawl] vessels for a rule justified as addressing localized depletion.  For this reason alone, the Court finds the rule arbitrary and capricious.

“The Court notes a further problem with the localized depletion justification and analysis:  the record fails to clearly define localized depletion spatially or temporally…

“The Secretary highlights a series of public comments from fishery users describing the negative impacts of the [mid-water trawl] fleet…Though these comments can certainly provide anecdotal support for the final rule, they are not an adequate substitute for scientific evidence of localized depletion and its link to [mid-water trawl] vessels…

“…In sum, the Secretary’s findings concerning localized depletion do not justify such a sweeping and economically consequential ban even under this deferential standard of review [applicable to judicial review of NMFS’ actions].  [citations omitted]”

Although Amendment 8’s regional depletion argument, as well as its inshore exclusion zone, was invalidated by the court, the New England Fishery Management Council still believes that there is reason to limit the harvest of herring on the inshore grounds, perhaps by placing restrictions on the high harvests of the mid-water trawlers.  Thus, on February 16, the Council released the Scoping Document for Amendment 10 to the Atlantic Herring Fishery Management Plan, stating that

“The purpose of this action is to develop and implement management actions designed to attain optimum yield and improve the conservation status of Atlantic herring by accounting for its critically important role as a forage species in the ecosystem and minimizing user conflicts created by competing interests on the herring resource between the directed herring fishery and other important user groups, including commercial and recreational fisheries, whale watching, and tourism.

“The Council will explore a range of management alternatives to minimize user conflicts, including spatially and temporally explicit gear restrictions, area closures, and possession limits.  The geographic scope of potential management measures will consider, but not be limited to, the spatial extent of the Midwater Trawl Restricted Area approved by the Council in Amendment 8, with a particular focus on areas not already subject to seasonal closures for midwater trawling.

“The current management measures to address catch of shad and river herring in the directed Atlantic herring fishery have catch estimation challenges and were instituted when the abundance and landings of Atlantic herring were much higher than they presently are.  This action will augment efforts to restore and maintain runs of river herring and shad through consideration of management alternatives for the directed Atlantic herring fishery that enhance river herring and shad avoidance and catch reduction (e.g., time/area closures and/or reconsideration of catch caps).”

The Council is now holding hearing and seeking public comment on the Scoping Document, to help it to determine what issues should be addressed in Amendment 10, should the Council decide to move forward with that management action.

Given the court’s decision with respect to Amendment 8, there’s little doubt that Amendment 10, if adopted, will face a similar legal challenge, so the Council is doing its best to address the court’s findings and ensure that Amendment 10 won’t meet a similar fate.  For example, the only times the term “localized depletion” appears in the Scoping Document is when that document discusses past amendments, including Amendment 8; it is not used with respect to Amendment 10 at all.

The Scoping Document also seems to be placing a greater emphasis on user conflicts and on ecosystem issues, in particular the bycatch and dead discards of shad and river herring in the directed Atlantic herring fishery, an issue that is particularly relevant to the mid-water trawl fleet.  The Scoping Document’s suggestion that the Council may consider the implementation of possession limits suggests that it might attempt to exclude the mid-water trawls from certain waters not by explicitly prohibiting their use, as was the case in Addendum 8, but by establishing possession limits that would, as a practical matter, be too low to allow the big vessels to operate profitably.

Still, it’s clear that the mid-water trawl fleet will not willingly accept such restrictions.  At a scoping hearing held in South Kingstown, Rhode Island on March 19, Meghan Lapp, speaking on behalf of the commercial fishing company Seafreeze, commented that

“This amendment is following the same exact arguments, the same exact thought patterns, the same exact trajectories, the same exact as the previous amendment that was shot down in court.  It seems to me that it is a solution looking for a problem, the problem statement and even the scoping document is like, tell us the problems that exist rather than identifying an issue that does exist and attempting to fix it.  To me, that is backwards.  The problem statement is nonsensical, you cannot attain optimum yield by creating unnecessary gear restrictions, area closures, and the like.  The forage issue was addressed in Amendment 8’s ABC control rule…that was not challenged at all by the previous lawsuit, that remains in place…I do not think that with this action the [Plan Development Team] is going to have any more substantial information than it did the last time.  I do remember looking through, there was extensive PDT analysis about space and user conflicts, from what I remember in that document there was like one place in space and time where there were conflicts identified, and it was somewhere up off of Gloucester in a particular time of year…”

Her arguments weren’t without merit.  A memorandum sent to the Council’s Herring Committee by the Herring Plan Development Team, dated June 9, 2023, noted that

“the PDT would like clarification as to what the problem is.  The draft statement mentions ‘user group conflicts,’ but the statement does not identify specific stakeholders or conflicts.  Does the Committee wish to specifically identify the user group conflicts?  It may be better to state this as competing interests that could be a source of user group conflicts.  The ecosystem impact of having less herring available is a source of conflict.  [numbering omitted]”

The memorandum also reported that

“The PDT notes the data supporting the analysis conducted for A8 had limitations.  Furthermore, those limitations persist in the data.”

Considering the findings of the Court in Sustainable Fisheries Coalition v. Raimondo, those comments give cause for concern.  At the same time, they are far from fatal to Amendment 10’s prospects.

If Amendment 10 is to survive, the Council must develop an administrative record that supports the Amendment’s stated goals.  Amendment 8’s restrictions on mid-water trawls were invalidated not only because they rested on claims of “localized depletion” that were unsupported by any scientific studies, but also because the key concept—“localized depletion” itself—was not clearly defined.  The anecdotal information provided in support of the Amendment, absent such definition and statistically valid data, was not enough to support the agency action.

Because Amendment 10 does not focus on localized depletion, the Council may be able to create an administrative record sufficent to defeat a court challenge.  Whether the Council will successfully do so is yet to be seen, but the Scoping Document represents the start of its efforts.

There are two scoping hearings yet to be held.  One will be a hybrid live hearing/webinar, held in conjunction with the April Council meeting, at the Hilton Hotel in Mystic, Connecticut between 6:00 and 8:00 p.m. on April 17.  The other is a webinar scheduled for 6:00 to 8:00 p.m. on April 22.

The Council will also be accepting written comments on the Scoping Document through 8:00 a.m. on April 30.

Anyone with insights into the issues addressed in the Scoping Document would do well to make their thoughts known.

 

 

STRIPED BASS ADDENDUM II: MARYLAND HINTS AT NONCOMPLIANCE

Last Tuesday, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board met to review state plans to implement Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

Such plans had been submitted to the ASMFC on or before March 1, in order to allow members of the Atlantic Striped Bass Plan Review Team and Atlantic Striped Bass Technical Committee to review them and determine whether they met the requirements of Addendum II.  While the Plan Review Team generally had few problems with the implementation plans, a few of the state proposals did raise red flags. 

The Plan Review Team listed the outstanding issues in a memo to the Management Board. 

With respect to recreational size limits, bag limits, and seasons, it noted that Pennsylvania had proposed delaying implementation of its new slot size and bag limit until 2025, because

“changing the slot size in the middle of the 2-month April-May season in 2024 would be procedurally burdensome and likely to lead to angler confusion and noncompliance and enforcement issues.”

Also,

“Pennsylvania noted the current (pre-Addendum II) regulation is published in the 2024 Pennsylvania Fishing Summary,”

which anglers consult when determining the relevant regulations.

With respect to the requirement that the racks of any striped bass filleted at sea or at a shoreside location be retained, and that no more than two fillets per rack be in anglers’ possession, the Plan Review Team raised questions about many states’ existing regulations, questioning whether the states’ interpretations of their rules met Addendum II’s requirements.

Finally, addressing what were probably the most serious shortcomings of some of the implementation plans, the Review Team noted that

“Maryland, Virginia, and the Potomac River Fisheries Commission have not implemented the required 7% commercial quota reduction for their Chesapeake Bay commercial fisheries.  Maryland has also not implemented the reduction for their 2024 ocean fishery.  Maryland, Virginia, and PRFC note that due to the timing of the Bay commercial fisheries starting prior to Addendum II approval, and the fact that commercial tags were already distributed, the 7% quota reduction could not be implemented in 2024.  PRFC and Virginia note that their commercial landings in recent years have been below the new Addendum II reduced quota level, so they do not anticipate an overage of the Addendum II quota level in 2024…

“Regarding the payback of potential overages, Maryland and PRFC note that if an overage occurs above the Addendum II quota level in 2024, that overage will be deducted from their 2026 quota.  They note that the 2025 quota will have already been distributed to permit holders before the end of the 2024 fishing year, so the deduction could not occur until 2026.  This is inconsistent with Addendum II, which states:  In the event a state exceeds its allocation, the amount in excess of its annual quota is deducted from the state’s allowable quota in the following year.  In the case of a 2024 overage, the payback should occur in 2025.  Virginia noted any potential 2024 overage payback would occur in 2025.”

With those issues highlighted by the Plan Review Team, the Management Board began its review of the states’ implementation plans.

Maryland chooses not to act in accordance with Addendum II

Perhaps not surprisingly, Maryland’s inaction with respect to required changes in its commercial fisheries drew the first question, with Roy Miller, the Governor’s Appointee from Delaware, noting that even though Virginia did not reduce its Chesapeake Bay commercial quota, it did implement a reduction in its commercial ocean quota, and asking why Maryland could not have done the same.

Pat Geer, the Virginia fisheries manager, followed up by noting that, on average, Virginia commercial fishermen have only landed about 77% of their quota in recent years, and so are expected to stay under Addendum II’s reduced quota in 2024; however, he also remarked that Virginia would be monitoring the 2024 landings, and could close the fishery if an overage appeared likely.

Dennis Abbott, New Hampshire’s Legislative Proxy, then turned the focus back on Maryland, asking whether, given the Board’s discussions last fall and the likelihood that a commercial quota reduction would be adopted for 2024, Maryland didn’t consider acting proactively to reduce its commercial quota in anticipation of the Board doing so at the ASMFC’s Winter Meeting.  He also addressed a second question to Maryland,

“Would you have the ability to close the season to avoid an overage?”

Michael Luisi, Maryland’s fisheries manager, addressed the questions posed by both Mr. Miller and Mr. Abbott.  In response to Mr. Miller, he said that Maryland’s commercial season opened on January 1, well before Addendum II was adopted, that some fishermen held so little quota that they might land it within a single day, and so Maryland intended to allow the harvest of fish pursuant to the quota that existed on the day that the season opened.

His responses to Mr. Abbott were more detailed, as well as more defiant, foreshadowing the uncooperative stance he would take throughout the meeting.  Mr. Luisi noted that there was some discussion within his department about Addendum II quota reductions, but because they did not know the ultimate outcome of the reduction proposal, because the commercial fishery produced only a small percentage of overall fishing mortality, and because the intent of Addendum II was not to manage the commercial fishery, Maryland fishery managers didn’t feel that they were in a position to “guess” what any quota reduction might be.  He said that Maryland lacked the administrative ability to send out a held-back portion of tags later in the year, particularly because some fishermen’s quotas were so small that the later mailing might consist of only a single tag.

And he reminded the Management Board that he had warned them in October what Maryland’s situation would be if Addendum II wasn’t adopted until January 2024.

Maryland’s Luisi then continued his response to Mr. Abbott, saying that while it has in-season harvest records, because of its individual transferrable quota system and December 31 season close,

“We would not close the season in the middle of the season.  Fishermen have the understanding that they have the whole season”

to land their fish.

With that statement, he made it clear that whether or not it had the ability to take the required action, Maryland had little intention to adhere to the explicit requirements of Addendum II.

New York’s Governor’s Appointee, Emerson Hasbrouck, called him out on his comments, saying that he could not support Maryland’s—or the Potomac River Fisheries Commission’s—implementation plans, particularly because they did not provide for paying back any 2024 overages until 2026.  He said that he hadn’t heard Maryland provide any good reason why they couldn’t issue reduced allocations to its commercial fishermen to account for any overage, but that

“They are just not willing to do it.”

Mr. Luisi naturally took objection to that.

At last January’s Management Board meeting, he had tried to delay the commercial quota cuts by a year, complaining that Maryland’s season had already started.  That effort failed, so he began his response to Mr. Hasbrouck with the complaint that

“This all could have been avoided.  We could have done something completely different had the Board considered the administrative burden.”

He then went on to inform the Management Board that Maryland would manage its 2024 commercial fishery to the pre-Addendum II quota, that it won’t have final 2024 commercial landings data until April 2025, and that it will begin distributing commercial striped bass tags for the 2025 season sometime around October 2024.  That time sequence, he argued, means that Maryland can’t pay back 2024 overages until 2026.

He never conceded that there was even a possibility of Maryland amending its current procedures in order to comply with Addendum II’s payback requirements.  Instead, he merely expressed his hope that no payback would occur, and then minimized the impact of any possible overage, arguing that 7% of Maryland’s pre-Addendum II quota, at about 100,000 pounds, would be small when compared to other sources of fishing mortality.  

He again tried to blame the Management Board for Maryland’s unwillingness to conform its actions to the dictates of Addendum II, saying that he hoped that the Board wouldn’t find Maryland out of compliance

“for an administrative burden that didn’t have to be a part of this discussion had a different decision been made in January.”

He refused to consider Maryland’s obligation to conform its actions to the dictates of the management plan.  Everything was couched in terms of what actions Maryland might be willing to take without incurring too much inconvenience.

The difference between what Maryland was able to do, and what it was willing to do, surfaced moments later, after Doug Grout, the Governor’s Appointee from New Hampshire, asked whether it was possible for Maryland (or the Potomac River Fisheries Commission, which claimed to be in a similar position as Maryland, but didn’t openly defy the Management Board) to issue a portion of its commercial striped bass tags—perhaps 80%--prior to the 2025 season, and hold back the rest until the 2025 landings data were finalized.  He noted that other states had managed to accommodate next-year paybacks “for many years.”

Mr. Luisi responded by saying

“There is a way to do anything,”

thus admitting that Maryland could find a way to conform to Addendum II’s requirements, but then added,

“but whether or not it’s worth the challenges for the administration and worth the challenges to our resource”

was a different issue, again underlining the fact that Maryland’s failure to comply was, in the end, a matter of preference, and not of necessity.  He then fell into another line of attack that revealed his continuing bias against the recreational fishery, claiming that everyone was getting concerned about a possible, but “biologically insignificant” commercial overage, while asking

“What’s the accountability on the recreational fishery?”

and arguing—perhaps forgetting about the emergency measures that the Management Board adopted in May 2023, which applied solely to the recreational fishery—that real-time accountability for the recreational fishery would not occur.  

Mr. Luisi declared the measures needed to ensure prompt paybacks for overages “too burdensome” and then declared,

“We are not going to jump over hoops, and we are not going to do it,”

with “it” referring to paying back 2024 overages in 2025.

Mr. Abbott responded by saying that

“There’s a keen awareness of what’s been going on in the striped bass fishery for years now,”

referring to the Management Board’s past (but, fortunately, not current) propensity to let states cut corners and get special exceptions to the management plan’s rules.  He noted that states are expected to comply with the Board’s actions.

A motion takes shape

At that point, the Maryland issue was briefly set aside as the Management Board addressed the other issues raised in the Plan Review Team’s memorandum, including Pennsylvania’s plan to adopt the slot and bag limits for its spring fishery in 2025 and other states’ efforts to clarify that their rules on filleting striped bass at sea were, in fact, in compliance with Addendum II.  But it wasn’t long before Megan Ware, the Maine fisheries manager who chairs the Management Board, called for a motion on the states’ implementation proposals.

Not surprisingly, Maryland’s Luisi was quick to put a motion on the floor, which simply read,

“Move to approve Addendum II state implementation plans as discussed today.”

Such motion was seconded by Stephen Train, Maine’s Governor’s Appointee.

Mr. Luisi tried to soft-sell his motion, saying that Board members had asked some good questions, and that there will inevitably be some issues related to process and administrative workload.  He said that all states made “fair attempts” to implement Addendum II, but there are hurdles, and that if his motion was passed, the Management Board could try to work in the future to allow implementation

“on a timeline that is more amenable to administration.”

In a supporting statement, Mr. Train expressed sympathy for Mr. Luisi, saying that

“I don’t think that what we have is perfect.”

But then he said something interesting, that unintentionally reinforced Mr. Abbott’s most recent comments:

“We are the ASMFC, we are not National Marine Fisheries.  We don’t come down heavy-handed”

but instead give states a chance to take actions that might not be in complete accord with the management plan.

Long-time readers of this blog will recall that I’ve criticized the ASMFC in the past for just such an attitude—for not fully enforcing the terms of its management plans (for example, failing to enforce the requirement to begin a 10-year rebuilding plan after the 2013 stock assessment tripped a management trigger in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which required initiation of such a rebuilding plan)—and I’m more than pleased to report that, in recent years, that attitude seems to have been replaced among most state delegates with one that takes a more rigorous stand on management issues.

Thus, I was pleased to see that Mr. Train’s comments received little support.

Instead, Dr. Michael Armstrong, the Massachusetts fishery manager, rose to make a substitute motion which eventually read (once some minor amendments were made),

“Move to approve Addendum II state implementation plans as discussed today, with the following exceptions:

·        CT, MD, VA, NC, PA: not planning to the two-fillet per legal fish possession limit rule for recreational filleting allowances;

·        PA: not planning to adhere to the May 1 implementation deadline; and

·        MD, PRFC: not planning to adhere to the commercial quota overage payback provision for deductions to occur in the following year.

“These jurisdictions must submit revised implementation plans by April 12, 2024.  The Management Board will review and consider approval of the revised state implementation plans at its May 1, 2024 meeting.”

His motion was seconded by Mr. Hasbrouck.

In his statement supporting the motion, Dr. Armstrong focused on Addendum II’s requirement that states pay back overages in the next year, observing that such requirement was nothing new.  Despite all of Maryland’s claims that it created an unreasonable administrative burden, such payback requirement had actually been a part of the ASMFC’s striped bass management plan since it adopted Amendment 5 to the Interstate Fishery Management Plan for Atlantic Striped Bass in 1995.  Given that, Dr. Armstrong observed,

“At some point we need to follow the rules that we have made.”

Mr. Hasbrouck expanded on his earlier observation, saying that while he sympathized with Maryland’s administrative concerns,

“What I hear is not that Maryland cannot do it, but that they won’t do it, doesn’t want to do it.”

Most of what happened after that was anticlimactic.

The Management Board votes

Connecticut’s fisheries manager, Dr. Justin Davis, made a motion to amend the substitute motion by deleting the first bullet point related to filleting fish, which was seconded by Pennsylvania fisheries manager Kris Kuhn.  Such motion passed easily, 10 in favor, 3 opposed, 1 abstention, and 1 null vote, without any need for discussion.

Mr. Kuhn then moved to amend the substitute motion by deleting the bullet point relating to Pennsylvania’s plan to delay adopting new size and bag limits for its April/May fishery until 2025.  Such motion was seconded by New York fisheries manager Martin Gary.

Mr. Kuhn argued that the spring fishery provides many Pennsylvania anglers with their only opportunity to catch a striped bass, and that the state would face a substantial administrative burden in implementing the new regulations by May 1, when they would only impact the fishery for two weeks or so, and opined that the impact of the delay would not be biologically significant, but Dr. Armstrong responded with the comment that

“’Burdensome’ is not a reason not to put in regulations, or try your darndest to,”

and noted that Massachusetts frequently changes its regulations, even though it supports a large fishery.

In the end, Mr, Kuhn’s motion failed on a vote of 5 in favor, 7 against, 1 abstention, and 2 null votes.

That vote, which expressed the Management Board’s reluctance to allow even a minor exception to Addendum II’s requirements, was a good indication that Maryland would not get its way on the payback issue.  Thus, instead of trying to amend the substitute motion, Mr. Luisi merely engaged in a last bit of rhetoric. He said,

“We have lost our way if we are at the point in time right now, [where] within a year’s time”

the Management Board took emergency action and adopted Addendum II, and then exhibited

“the complete lack of caring as to the burden…by continuing to press the issue on things that are not biologically significant.”

He objected to Mr. Hasbrouck’s comment that Maryland “doesn’t want to” comply with every detail of Addendum II, even though his earlier comments effectively admitted that such was the case.  He commented that

“The Board just seems lost in this detail,”

as if timely paybacks of commercial overages, something that Maryland had been obligated to do for nearly three decades, was a new and insignificant matter, and baldly told the Board that Maryland’s revised implementation plan will probably not address their concerns.  He observed that a new stock assessment update was coming out, and that the Board may have to begin the process of revising management measures all over again.

When his soliloquy was done, the Management Board approved the substitute motion on a vote of 8 in favor, 5 opposed, 1 abstaining, and 1 null vote.  The substitute motion then became the main motion, and was approved on a vote of 11 in favor (ME, NH, MA, RI, CT, NY, NJ, DE, DC, VA and NC), 3 opposed (PA, MD, and the PRFC) and the National Marine Fisheries Service abstaining.

What happens next?

The big question is what comes next.

For most states, that answer is simple.  They will comply with Addendum II.

In the case of Maryland, though, things may be different, for immediately after the final vote, Mr. Luisi asked when Maryland might be found out of compliance with the Addendum.  He asked whether that finding might occur on the May 1 implementation date, if the state’s revised implementation plan isn’t approved, or only after any overage that might occur is not paid back in 2025.

Robert Beal, the ASMFC’s Executive Director, noted that whether—and when—Maryland might be found out of compliance is up to the Management Board, which decides whether to refer a noncompliance finding to the Secretaries of Commerce and the Interior for further action.  Mr. Beal also noted that

“There’s more conversations to be had before we go down the road to noncompliance.”

But given the defiant stance that Maryland has taken so far, and its seeming refusal to comply with Addendum II’s payback requirements, even if such conversations are held, there is little reason to believe that they will do too much good.

ASMFC MANAGEMENT AUTHORITY CHALLENGED BY MARYLAND LAWSUIT

 

After the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Atlantic Striped Bass Management Board adopted Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Addendum II) in January 2024, it was generally assumed that striped bass management issues would be put on a back burner until a new stock assessment update is released in the fall of the year.

Unfortunately, that won’t be the case.

A new lawsuit, brought in the Federal District Court for the District of Maryland, threatens not only the management measures included in Addendum II, but perhaps also the ASMFC’s ability to effectively manage other coastal fisheries.

On March 7, the Delmarva Fisheries Association, Inc. and the Maryland Charter Boat Association, Inc., along with two of their members, filed an action against the ASMFC which seeks “An order and judgment holding unlawful, enjoining and setting aside the ASMFC 2024 Striped Bass Addendum [II] approved on January 24, 2024, as unconstitutional or illegal on other impermissible grounds.”

While the action is focused on Addendum II’s one-fish bag limit for striped bass caught by anglers in the Chesapeake Bay, which abolishes a previous two-fish limit for anglers fishing from Maryland charter boats, and its 7% reduction in commercial striped bass quota, portions of the complaint challenge the ASMFC’s basic management authority, and so could have implications that go far beyond just the striped bass fishery.

Despite the such possible consequences, the plaintiffs’ complaint contains obvious errors, and seems to be based on dubious legal grounds. For example, it states that “ASMFC acknowledges that the Atlantic Striped Bass stock is not overfished,” an allegation in conflict with the findings of the 2022 stock assessment update, which clearly states that “In 2021 [the last year included in the assessment update], the Atlantic striped bass stock was overfished.” A “Quick Guide to ASMFC Species Stock Status,” which currently appears on the ASMFC website, also lists striped bass as “overfished,” while there is no evidence that the ASMFC has made any recent statements to the contrary.

The complaint is similarly mistaken when it alleges that “federal law [is] applicable to ASMFC under the [Magnuson-Stevens Fishery Conservation and Management Act],” as such statute contains an explicit provision that, with one very limited exception, “nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.”

 The ASMFC was created by an interstate compact, consented to and approved by the United States Congress, which specifically empowers the ASMFC “to recommend the coordination of the exercise of police powers of the several states within their respective jurisdictions to promote the preservation of those fisheries [emphasis added].” Thus, contrary to the plaintiffs’ allegations, the Magnuson-Stevens Fishery Conservation and Management Act does not apply to the provisions of Addendum II.

The complaint also states,

In testament to the “historic commercial and recreational importance and economic benefit to the Atlantic states and to the Nation,” the United States Congress in 1984 adopted the Atlantic Striped Bass Conservation Act…to address the fact that “[n]o single government entity has full management authority throughout the range of the Atlantic striped bass.”

By this action, Congress asserted substantial control over Atlantic Striped Bass which had previously been administered (since 1942) primarily through the ASMFC Interstate Compact. [paragraph numbering and references omitted]

It’s puzzling why the plaintiffs included such allegations, as such claims hardly strengthen their case.

After all, what Congress did when it adopted the Atlantic Striped Bass Conservation Act (Bass Act) was to hand “substantial control” over the striped bass resource to the ASMFC, directing that the fishery management plan for Atlantic striped bass be “prepared and adopted by the Commission,” while also giving the ASMFC the authority to “determine whether each coastal State has adopted all regulatory measures necessary to fully implement the Plan in its coastal waters; and whether the enforcement of the Plan by each coastal State is satisfactory. [formatting omitted]”

Furthermore, the Bass Act gives the ASMFC significant discretion in determining whether a state is in compliance with its striped bass management plan, providing that “enforcement by a coastal State shall not be considered satisfactory by the Commission if, in its view, the enforcement is being carried out in such a manner that implementation of the Plan within the coastal waters of the State is being, or will likely be, substantially and adversely affected.” In the event of noncompliance, “The Commission shall immediately notify the Secretaries [of Commerce and the Interior] of each negative determination made by it.” The secretaries, if they agree that a state is out of compliance with the management plan, must then completely shut down such state’s striped bass fishery until compliance is achieved.

Such language makes it very clear that, far from limiting the ASMFC’s previous authority to manage Atlantic striped bass, Congress adopted the Bass Act in order to give the ASMFC full authority to manage the fishery.

The only other significant question raised by the plaintiffs’ complaint is whether the ASMFC constitutes a federal agency subject to the rulemaking procedures established in the Administrative Procedures Act.

That question was already answered in New York v. Atlantic States Marine Fisheries Commission, a 2010 decision by the United States Court of Appeals for the 2nd Circuit, which found that the ASMFC was not an agency of the federal government. In reaching that conclusion, the Court reasoned that, “The Commission is designed to address concerns that are traditionally within the province of the states. That the Commission seeks to address these concerns with support from the federal government, and in a manner that is harmonious with federal regulations, does not alter its essential nature. The fact that federal interests are implicated by the activities of the ASMFC does not transform it into a federal agency for purposes of seeking judicial review of its actions.”

Admittedly, the 2nd Circuit’s decision only represents what attorneys deem “persuasive authority” for the federal district court hearing the Delmarva Fisheries case, and not binding precedent, because that court is located in Maryland and so falls within the 4th, rather than the 2nd, judicial circuit. The decision in New York v. Atlantic States Marine Fisheries Commission is well-reasoned, and comprehensively examines the legal issues involved, but even so, while it will be difficult for the district court to come to a different conclusion, no legal principle prevents it from doing so.

Thus, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission poses a potential threat not only to the striped bass, but to all of the species managed by the ASMFC. The threat is particularly acute with respect to those species which are not federally managed when outside of state waters, and so would be completely unprotected from capricious and inconsistent management decisions made by individual states.

If Addendum II could be invalidated by the courts because, by imposing management measures that the ASMFC deemed necessary to rebuild the striped bass’ spawning stock biomass, the ASMFC “failed to take into account the economic impact on fishery-dependent industries and other adversely affected…businesses and local communities,” and if the ASMFC’s regular procedures for adopting such an addendum to a management plan were found to be “in violation of [plaintiffs’] rights under the U.S. Constitution and other pertinent federal laws, and likewise promulgated in violation of [a single state’s] Constitution and other state statutory and common law [numbering omitted],” there is little reason to believe that any of the ASMFC’s interstate fishery management plans could survive judicial review.

If the Delmarva Fisheries Association prevails in its suit, it would be all too easy for Maine’s lobstermen to use that precedent to successfully challenge a recently-adopted increase in lobsters’ minimum size on economic grounds, or for Virginia’s menhaden reduction fleet to allege economic hardship and bring a court challenge against the ASMFC’s decision to cap menhaden landings within the Chesapeake Bay.

If the Maryland Charter Boat Association convinces the court that its claims have merit, charter and party boats anywhere along the coast could easily challenge restrictions intended to rebuild populations of any stock that they target, whether the relevant species is tautog in the Northeast, Atlantic croaker and spot in the Mid-Atlantic, or cobia in the Southeast.

A win for the plaintiffs in the current matter could, effectively, undermine a system that, although not without flaws, has coordinated coastwide management of striped bass harvest since 1985, and the management of 32 other stocks, ranging from alewives to winter flounder, since 1993.

Although it is impossible to predict, with any certainty, what a court will decide, the good news is that the complaint in Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission presents weak and badly flawed arguments to support the plaintiffs’ case.

The bad news is that, particularly in recent times, weak and badly flawed arguments have too often led to equally weak and badly flawed court decisions that overturned important and well-established law.

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

 

SHOULD NOAA STOP PROMOTING FINFISH AQUACULTURE IN COASTAL WATERS?

About a month ago, I read an announcement declaring that

“NOAA SEA GRANT DEVELOPS 5-YEAR AQUACULTURE INVESTMENT PLAN.”

The website on which the announcement appeared went on to declare,

“Sea Grant is committed to supporting aquaculture development across the nation, as a means of enhancing economic resilience and nutritional security in American communities…

“Sea Grant is committed to supporting the American seafood industry.  Aquaculture plays an increasingly important role in seafood production in the U.S.  For over 50 years, Sea Grant has been a leader in promoting safe, strategic and sustainable aquaculture through supporting research, education and extension…

“Starting in fiscal year 2024, annual funding will be available for National Aquaculture Initiatives (NAIs).  Specifically, in even years, an NAI funding competition with the goal of improving aquaculture production will be offered.  In odd years, an NAI funding competition with the goal of supporting aquaculture businesses through projects that address topics including food quality, business planning, economics and education, literacy and workforce development will be offered.”

That seems fine on its face, until you realize that it more or less skips over an important threshold question:  Whether promoting aquaculture in all its various forms is consistent with the greater public interest, or whether such aquaculture may bring benefits to certain people, companies, and communities, but only at the cost of substantial damage to marine habitats and living marine resources that the federal government holds in trust for the benefit of the public as a whole.

It's a little troubling that the focus of the Sea Grant efforts will be on “improving aquaculture production,” “food quality, business planning, economics and education, literacy and workforce development,” while apparently placing little emphasis on topics such as “preventing escapes of non-native fish,” “avoiding damage to marine ecosystems,” “preventing the release of antibiotics into coastal waters,” etc.

The National Oceanographic and Atmospheric Administration is, after all, the parent agency of the National Marine Fisheries Service, which declares itself to be

“responsible for the stewardship of the nation’s ocean resources and their habitat.”

It’s hard not to perceive a conflict of interests when the same parent agency responsible for the stewardship of marine resources and habitat is also promoting activities that could do those resources and habitats harm.

For one has to admit that the history of marine aquaculture, both in the United States and elsewhere is, at best, checkered.

Perhaps the most notorious domestic example of harmful aquaculture activities occurred in the State of Washington in 2017, after Cooke Aquaculture, a Canadian company, failed to perform needed maintenance on the net pens in one of its Puget Sound fish farms, and so allowed about a quarter-million non-native Atlantic salmon to escape into Washington’s coastal waters.

As reported in the Seattle Times,

“Cooke Aquaculture Pacific vastly underrepresented the scope of a catastrophic Atlantic salmon net-pen spill at its Cypress Island farm…and misled the public and regulators about the cause, according to a new report by state investigators that blames the pen collapse on company negligence.

“The investigation found that Cooke lowballed the number of escaped fish by more than half, and did not do essential maintenance at its farm, causing the escape.

“The company also misled agencies about the seriousness and cause of an earlier mishap at the fish farm…”

As a result, Cooke ended up paying a $2.75 million settlement in a Clean Water Act lawsuit, money that would go toward projects intended to improve the marine environment in Puget Sound, as well as to reimburse the plaintiffs for their legal expenses.  Washington also responded to the event by cancelling Cooke's remaining aquaculture leases and banning the farming of non-native fish in Washington waters.

But if the Cooke net pen collapse might be the most blatant example of how aquaculture threatens the public interest in the U.S., it is not the only one. 

In 2004, the United States Court of Appeals for the 1st Circuit decided United States Public Interest Research Group v. Atlantic Salmon of Maine LLC, upholding a lower court decision which found that the defendants violated the federal Clean Water Act by discharging five categories of pollutants from their salmon net pens without having the necessary permits, including  

“non-North American salmon that escape from the pens; large quantities of salmon feces and urine that exit the pens; uneaten salmon feed containing a range of chemicals for combating infection and providing coloring; other chemicals to fight sea lice; and copper that flakes from the net pens themselves.”

Although twenty years has passed since that decision was handed down, similar problems seem to persist in Maine’s salmon farms.  The Conservation Law Foundation recently noted that

“This past summer, around 50,000 industrially farmed salmon wriggled free through holes in their pens into the waters of Machias Bay, Maine.  It’s possible the farmed fish survived their prison break to spread diseases that thrive in captivity to critically endangered wild salmon out at sea and upstream in the nearby Machias River…

“A ‘net pen’ is like an iceberg; not much is visible from the surface.  But beneath the waves, up to hundreds of thousands of fish crowd each floating pen.  The fish eat and grow at astounding rates—and defecate.  A typical industrial fish farm of several hundred thousand fish produces about one million pounds of waste annually.  That’s roughly the same amount of sewage generated by Maine’s largest city, Portland, in a year.

“Yet unlike city sewage, in North American fish farms, the poop is not captured or treated.  Instead, it floats out through the pens to pile up on the ocean floor.  The waste accumulates over time to form a layer of foul-smelling black sludge that is toxic to small bottom-dwelling creatures.  Eventually, the seafloor around an industrial salmon farm will transform into a lifeless landscape.

“Fish also produce a lot of nitrogen waste.  Nitrogen pollution mixed with warm water creates perfect conditions for toxic algae outbreaks.  The algae can grow out of control to form massive red tides that poison any fish, turtles, and shellfish in their path.  Nitrogen pollution also clouds the water, blocking eelgrass nurseries on the seafloor from essential sunlight…

“When salmon are forced to live packed together in the hundreds of thousands, they are vulnerable.  Contagious diseases quickly spread through the penned fish.  The salmon industry uses antibiotics to prevent disease, but that increases the risk of antibiotic resistance in humans who consume the farmed fish…

“…small crustaceans, known as sea lice, cling to salmon and eat their skin…in industrial salmon farms, they spread easily between captive fish, covering affected fish with open sores…To control sea lice, the salmon industry has historically used chemical treatments and pesticides—including some that kill crustaceans like lobsters…”

Of course, the fish-farming industry tries to argue that its operations do not harm public resources.  In a response to a 2023 New York Times article, which highlighted problems caused by salmon farms, the Maine Aquaculture Association alleged that

“The Times writes that salmon farming net pens face ‘severe crowding,’ ‘pollute the surrounding ecosystem,’ and ‘promote the spread of disease and pests like sea lice, resulting in the need for antibiotics and pesticides.’  The fact is that Maine is home to the only ocean-raised Atlantic salmon in America [ever since Washington banned such Atlantic salmon farming after the Cooke Aquaculture debacle], and our net pens contain less than 4 percent fish and more than 96 percent water, giving our salmon plenty of room to swim, grow, and mimic natural schooling patterns.  All of our farms adhere to rigorous environmental laws, including the Clean Water Act, Endangered Species Act, National Environmental Policy Act, and Coastal Zone Management Act.  Farms are closely monitored using underwater cameras and divers to ensure that healthy environmental conditions in and near the pens are maintained at all times.

“…Maine farmed salmon are raised with little or no antibiotics under the watch of veterinarians…”

Make of that what you will.  However, problems created by fish farms have been well documented, and not only in the United States.  A paper published in the Proceedings of the Royal Society B in 2009, titled “How sea lice from salmon farms may cause wild salmonid declines in Europe and North America and be a threat to fishes elsewhere,” concluded

“The evidence that salmon farms are the most significant source of the epizootics of sea lice on juvenile wild salmonids in Europe and North America is now convincing.  Farms may contain millions of fishes almost year round in coastal waters and, unless lice control is effective, may provide a continuous source of sea lice, although the amount of infestation pressure will vary over time owing to seasonal and farm management practices (e.g. fallowing).  If escaped farm fishes remain in coastal waters, they will be an additional reservoir of lice…Analyses that controlled for the effects of environmental conditions and fisheries found that salmon population declines were coincident with salmon farming in both North America and Europe.  [references omitted]”

Another case of salmon farms tainting wild marine resources was recently reported from Australia’s Tasmania, where The Guardian reported that

“Tasmania’s largest salmon company, Tassal, has revealed wild fish at one of its salmon farms contained antibiotic residues at almost five times the allowed level.

“In another case, there were low-level antibiotic traces in wild fish caught more than seven kilometres from another Tassal salmon farm…

“…There was no public notification when the antibiotics were used or when the monitoring reports were released.

“Sheenagh Neill, a spokesperson for Marine Protection Tasmania, said she was concerned about the continuing secrecy surrounding antibiotics use in public waterways.  ‘The community is still not being informed promptly despite the 2022 Legislative Council inquiry into the fish farming industry recommending the ‘timely’ release of information on the use of antibiotics,’ she said.  [emphasis added]”

Given the environmental issues created by the fish-farming industry, in the United States and elsewhere around the world, NOAA would do well to stop promoting such farming activities in coastal waters, unless and until Congress gives it regulatory authority to oversee the aquaculture industry.  

Currently, no such federal authority exists, forcing states to regulate fish farming within their waters on a piecemeal basis.  In federal waters, more than three miles from shore, there is no effective, unified regulation at all, although a handful of federal agencies may have some influence over aspects of fish farming operations.  Legislation has been introduced in Congress to create a regulatory framework, but has not made much progress.

Absent any established statutory and regulatory framework to manage the industry, the government would be wise to limit United States aquaculture to species that can be raised in isolated, land-based facilities, such as domestic catfish, tilapia, and hybrid striped bass, which provide little risk to native fish populations and cannot degrade coastal waters, and to mollusks such as oysters and clams which are native to the waters in which they are raised, create no threats to local ecosystems and, as filter feeders and animals capable of reproduction, can provide benefits to the area surrounding aquaculture operations.

Coastal fish farms have, and can continue to, put money in the pockets of a few large corporations and their employees, and can provide some employment in coastal communities.  But to date, those benefits have come at the cost of local ecosystems degraded by escaped fish, fish waste, antibiotics, and pesticides.

Until those problems are eliminated, if that is even possible, NOAA would be well advised to stick to its mission as steward of the nation’s marine resources, and to cease promoting activities contrary to its stewardship role.