FISHERIES MANAGEMENT: THE PROBLEM OF PERCEPTION

One of the most frustrating aspects of fisheries management is the fact that two people—or, more often, two groups of people—can look at the same set of facts and come to two very different conclusions.

It’s not unusual for scientists who manage fish stocks to look at a particular population of flounder or snapper or cod, compare its current condition to the population’s historical state, and decide that it’s badly depleted, while fishermen look at the same population and insist that it’s doing well.

Such divergent opinions often lead to bitter conflicts at meetings of regional fishery management councils and other management bodies, as fishermen feel themselves wrongly burdened by unnecessary regulations, while fishery managers insist that additional restrictions are needed to ensure the health of the stock.

Looking at such conflicts from the outside, it can be difficult to understand how two groups of people, both intimately familiar with the fish stock in question, can reach such different conclusions. Recently, a team of researchers conducted a study to determine what underlies such very different perceptions. The results of that study were included in a paper titled “Lost in translation: understanding divergent perspectives on a depleted fish stock,” which was published in the Canadian Journal of Fisheries and Aquatic Sciences.

The researchers found that while scientists and fishermen might look at the same population of fish, they are seeing it through very different lenses.

Their findings evoke memories of the ancient Indian parable of the blind men describing an elephant:

 

A group of blind men heard that a strange animal, called an elephant, had been brought to the town, but none of them were aware of its shape and form. Out of curiosity, they said, “We must inspect and know it by touch, of which we are capable.” So, they sought it out, and when they found it they groped about it. The first person, whose hand landed on the trunk, said, “This being is like a thick snake.” For another one whose hand reached its ear, it seemed like a kind of fan. As for another person, whose hand was upon its leg, the elephant is a pillar like a tree-trunk. The blind man who placed his hand upon its side said the elephant, “is a wall.” Another who felt its tail, described it as a rope. The last felt its tusk, stating the elephant is that which is hard, smooth and like a spear.

In the same way, the researchers found, scientists and fishermen don’t share the same sources of information, and so come away with differing perceptions of the state of the stock.

Fishery scientists tend to rely on stock assessments, which are generally derived from complex population models, and supported by surveys such as the Northeast Fishery Science Center’s trawl surveys or the industry-based trawl survey conducted by the Massachusetts Department of Marine Fisheries.

 

Fishermen are most likely to gauge stock health by the number of fish landed, and perhaps more particularly on the number of fish landed compared to the amount of effort expended (landings per unit effort).

The conclusions drawn by both scientists and fishermen are not unreasonable given the information that underlies them, even though they may be substantially different. As the researchers observed, although the fishermen’s perspective “may be subject to significant biases, the scientific community cannot claim ownership of the truth when assessment models provide catch advice that persistently results in overfishing, despite the reported catch remaining within assessment-based catch limits.”

To demonstrate how differing perceptions can affect fishery management, the researchers used the example of Gulf of Maine cod, noting that,

The assessment perspective depicts a stock that has declined for several decades and is currently at 5% of its target population size…Fishery managers have attempted to constrain [fishing mortality] using various regulations, including area closures (1998-present), effort restrictions and trip limits (1997-2009), and annual quotas (2010-present). Unfortunately, these management actions have failed to prevent overfishing every year since 1981, even though the fishery routinely harvests within the limits set by stock assessments…Increasingly restrictive regulations and stock rebuilding failures have caused severe social, emotional, and economic harm among the fishing community. Fisher distrust in science-based fishery management is high, and industry groups routinely oppose any new conservation measures…The influence of constantly shifting regulations on catch rates has led to fishery-dependent indices being removed from the stock assessment, diminishing fishery confidence that they have a voice in the management process. Significant misreporting of catch has eroded trust in the primary assessment data sources. In short, both the biological and social capital of this system are severely depleted.

Their research is intended to determine why fishermen’s faith in the system has deteriorated so badly.

The researchers began by interviewing 130 commercial fishing boat captains and asking whether they believed that the Gulf of Maine cod population had increased, decreased, or remained the same over the past 10 years. Ninety-four of the captains contacted provided a response, with 63% of them saying that the cod population had increased, and 44% saying that the population had increased “a lot.” Only 24% said that the population had decreased, while 13% believed that it had remained the same.

Most of the captains’ responses conflicted with the findings of scientists at the National Marine Fisheries Service (NMFS), which has determined that the cod’s spawning stock biomass has been shrinking for decades. Massachusetts’ industry-based trawl survey essentially confirmed NMFS’ scientists’ findings.

That might not have surprised the researchers, who found that the captains who believed that the cod population was increasing had less faith in NMFS’ Northeast Fisheries Science Center and in local government than did those who felt that the population was declining or holding steady. Their paper noted that such distrust “could be the result of another unintended cognitive influence, known as confirmation bias, or the tendency to interpret new information in a way that supports previously held beliefs. In other words, distrust earned from several years of inconsistent and uncertain assessment results likely caused some fishermen to categorically disbelieve the repeated scientific determination of severe depletion, even as their own catch rates began to decline. [citations omitted]”

 

As the researchers began to investigate why fishermen’s perceptions of stock health differed so much from the scientific consensus, they found that the relationship between harvest limits and catch rates played a significant role. For example, during the years 1994 through 2010, regulators attempted to control fishermen’s landings by limiting the number of days on which they could fish. Landings were also constrained by limiting the amount of cod that fishermen could harvest each day, but that created another problem, as fishermen were being forced to discard some portion of their catch at sea to avoid exceeding the daily landings limit.

To minimize the number of dead discards at a time when the cod population continued to decline, regulators significantly reduced the number of days at sea allotted to each fishing vessel, but increased the daily trip limit, so that a greater percentage of each day’s catch could be landed. At the time that change was made, most of the remaining cod were found close to shore, and the price that fishermen received for their catch was increasing. The combination of increased daily limits, high market price, and cod being found close to shore made cod a desirable target for the commercial fleet, caused catch rates to increase at the same time that the overall cod population declined, and created a perception among many fishermen that cod were more plentiful than indicated by the stock assessments.

As the paper explained,

Fishers acquire extensive ecological knowledge through daily direct observations of catch rates, and they are often acutely aware of spawning grounds, trophic interactions, and shifting spatio-temporal distributions. Recognizing these patterns is essential to the success of a fishing captain, and the tactical decisions of where to deploy their gear integrates this ecological knowledge within the complex array of regulations. Fisher ecological knowledge also accumulates over generations…[and] is also what enables captains to target a species and fill their harvest limit (either daily or annual) even as the stock declines. [citations omitted]

Fishermen’s continuing ability to fill their harvest limits, even as daily landings limits increased, made it difficult for them to perceive that the stock was in any sort of trouble.

Such perceptions continued even after regulators adopted new rules in 2015, which cut the annual catch limit by 95% (compared to 2010) and caused the catch rate to sharply decline. That would seem contrary to the researchers’ hypothesis that catch rates drive fishermen’s perceptions, but they explain the seeming conflict by calling the regulations adopted in 2015 “the greatest disruption to fishing effort in the history of the fishery,” and by observing that

Captains had to adapt to fishing in new times/areas and transition away from targeting cod to avoiding the species. As such, it may have taken additional time for fishers to form new opinions on the cod population that differed from their previous experiences. Furthermore, a series of management actions…closed nearly all the known cod spawning ground to fishing, and the resultant redistribution of fishing effort shifted the size selectivity of the fishery toward smaller fish. Fishers generally recognize that their catch of large cod had been curtailed by these actions and likely do not appreciate the significant loss of older fish in the population. In addition, the decline in juvenile recruitment is essentially undetectable to the fishery, given the large regulated minimum mesh (16.5 cm) and hook (12/0 circle) sizes. The decline in medium-sized fish…has been less than for large and sub-legal cod, and a reduction in the minimum fish size…has allowed for more of these fish to be landed. These layers of fishing regulations influence how captains observe the fish population and should be acknowledged when interpreting fisher perspectives.

Thus, the regulations effectively isolated fishermen from the evidence most likely to convince them that such restrictive management measures were actually needed.

The researchers also found that fishermen who are in financial distress are more likely to perceive the cod population to be thriving, a phenomenon that is probably attributable to the current management plan, which assigns “catch shares,” or a unique annual quota, to each vessel in the fishery, and prohibits vessels from discarding any legal-sized cod. If a vessel exceeds its share of the catch, it must purchase enough quota from another fisherman to cover the overage, and the price for that extra quota is often more than the market price paid for the cod. Thus, as the researchers explained, “large catches of cod went from having positive associations (i.e., increased revenue) to negative associations (i.e., increased costs)…which likely affected perceptions of trend.”

Regardless of cause, it is clear that fishermen’s perspectives matter. The differing perspectives of fishermen and fisheries scientists create an obstacle to effective management. The researchers observed that “a discrepancy between stakeholder perspectives because of the lack of a shared knowledge base inhibits consensus building in management. Translating between the perspectives of the scientific and fishing communities helps both groups recognize the common signal that underlies these disparate sets of observations.”

The paper did not shield either the fishermen or the scientists from their share of the blame for the problems besetting Gulf of Maine cod, concluding that “divergent perspectives on stock status still represent a major challenge to fishery management. The management community should recognize that fishery misconceptions about population status are due in large part to the effect of regulations and a distrust of inconsistent assessment results.”

Still, the paper closed on a somewhat hopeful note, observing that, while divergent perspectives might always be a part of the fisheries management process, an understanding of why such divergence occurs may help to avoid stakeholder conflict.

And any avoidance of conflict can only help the process succeed.

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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/

UNIVERSAL ANGLER REPORTING: A REAL-WORLD TRIAL

The Marine Recreational Information Program, which the National Marine Fisheries Service uses to gauge angler catch, landings, and effort, is the program that just about all recreational fishermen, or at least all of the recreational fishing industry, loves to hate.  Editorials in the angling press and statements made by various organizations regularly castigate MRIP, declaring it flawed and calling for it to be replaced, possibly by some sort of direct angler reporting, based on a cell phone app.

I have always been, and remain, a skeptic.  Response rates to other, supposedly mandatory reporting programs—bluefin tuna on the East Coast, red snapper in Alabama, and deer and turkey and other game all across the country—is typically dismal unless there is an effective enforcement mechanism to encourage compliance, and there is no reason to believe that universal angler catch reporting will meet any better fate.  And that doesn’t even consider biased reporting, a broad category that includes everything from anglers who habitually fail to report their landings to those who only report part of the time to less ethical persons who intentionally misrepresent their catches—or lack thereof—because they’re trying to manipulate the management system in a certain direction.

But there are apparently folks out there who have a far higher opinion of mandatory angler reporting than I do, because the North Carolina legislature recently passed a law stating, among other things, that

“Any person who recreationally harvests a fish listed in this subsection from coastal fishing waters, joint fishing waters, and inland fishing waters adjacent to coastal fishing waters or joint fishing waters shall report that harvest to the Division of Marine Fisheries within the Department of Environmental Quality in a manner consistent with rules adopted by the Marine Fisheries Commission and the Wildlife Resources Commission.  The harvest of the following finfish species shall be reported:

(1)   Red Drum.

(2)   Flounder.

(3)   Spotted Seatrout.

(4)   Striped Bass.

(5)   Weakfish.”

It’s not too clear what happens to anyone who fails to report, because the law provides that

“Violation of [the recreational reporting] subsection…shall only be punishable by a verbal warning, [emphasis added]”

that

 “Violation of [the recreational reporting] subsection shall only be punishable by issuance of a warning ticket…an inspector or protector may issue additional warning tickets for repeat violations…  [emphasis added]”

and

“Violation of [the recreational reporting] subsection…shall only be an infraction…punishable by a fine of thirty-five dollars ($35.00).  A person responsible for an infraction under this subsection shall not be assessed court costs, but the Fisheries Director of the North Carolina Division of Marine Fisheries is authorized to suspend, revoke, or refuse to issue a…recreational fishing license to any individual guilty of an infraction for violations of [the recreational reporting] subsection…The Executive Director of the Wildlife Resources Commission is authorized to revoke or refuse to issue a recreational fishing license issued by the Wildlife Resources Commission for any individual guilty of an infraction for violating [the recreational reporting] subsection…for two consecutive years or upon failure to pay infraction fines when required to do so.  [emphasis added]”

Thus, the new language seems to create three different, yet seemingly exclusive (“violation…shall only” be punishable by) penalties for violating the same subsection, which seems to create a significant ambiguity, but maybe the folks in the North Carolina legislature speak a little different dialect of English than the rest of us do, and “only” means something different down there.

At any rate, the legislature did the easy part—they passed a law, which North Carolina’s governor, for whatever reason, signed despite its seeming flaws.

Now, it’s up to the state’s Marine Fisheries Commission and Wildlife Resources Commission to do the real work of figuring out how to implement the reporting requirement and put a workable system in place before the law becomes effective on December 1, despite the legislature’s apparent failure to appropriate any program funding. 

I don’t envy the commissions, given the job that they’re tasked to do.

To begin, it’s clear that one size won’t end up fitting all.

When people talk about direct angler reporting of catch and/or landings, they usually mention smartphone apps in the same breath.  So the first problem the commissions must address is that North Carolina has not yet designed or developed such app and, without any directed appropriation, it’s not clear where it’s going to get the money to do so. 

Does the state legislature intend the Division of Marine Fisheries to delve into its budget and divert funding away from other important programs to fund a reporting process that the legislature apparently didn’t deem important enough to fund on its own?

Right now, the answer appears to be yes.

But even when and if such an app is released, not everyone owns a smartphone, and not everyone who has a phone is comfortable using apps.  Some people just don’t like cellphones, some are uncomfortable with the technology, and some people just can’t afford them.  Plus, there are others who have a phone, but only use it for its most basic purpose—making calls and maybe sending texts—and have little use for or familiarity with other features.  I have friends and family with that sort of attitude toward phones, and there’s little reason to doubt that North Carolina has its share of such folks, too.

So even if North Carolina develops a recreational harvest reporting app, it’s also going to have to develop an alternate reporting procedure for those who don’t have or don’t feel comfortable using a smartphone.  It’s going to be up to the commissions to decide what that alternative will look like.

It might look like a call-in system, which requires any angler harvesting a fish belonging to one of the five reportable species to dial up a number and leave their name or other identifier (maybe a fishing license number) and their harvest information on some sort of voice recording device.  The other alternative, even more low-tech and clumsy, would require such reports to be submitted in writing to a Division of Marine Fisheries-designated address.

Either of those alternatives would be extremely labor-intensive.

In 2023, North Carolina anglers harvested about 230,000 red drum, 1,000,000 spotted seatrout, 75,000 weakfish, 120,000 flounder, and 1,000 striped bass.  It’s reasonable to assume that, had the reporting requirement been in place last year, most of those fish would have been reported via smartphone, but if even 10% of those fish had to be reported through alternative means, that’s over 140,000 fish tallied by either a voice recording or mail-in system.

While the fish reported through a smartphone app might be automatically recorded and tallied, reports received via voice recorder or the mail would have to be individually, manually recorded, a process that would require a Division of Marine Fisheries employee to download each voice-recorded report, or open each piece of mail, and record the information provided therein on a system capable of merging the input data with the data recorded by the smartphone app.

Thus, the Division of Marine Fisheries would incur additional expenses, in the form of added personnel costs to do the needed tabulation, and in the form of a voice recording system and perhaps other technology needed to receive and accurately record the information reported.  Again, given the legislature’s apparent failure to appropriate funds, that means diverting people and funding away from other needed programs.

The commissions are going to have to decide just what such reporting systems will look like, and figure out how to put them in place, bug-free and ready for use, by the December deadline. 

Of course, those systems will only deal with the information that is provided.  The Division of Marine Fisheries is also going to have to figure out how to deal with the information that isn’t.

It’s probably a pretty good bet that a large percentage of North Carolina anglers are not going to immediately comply with the reporting requirements when they go into effect.

For some, that will be because they weren’t aware of the new rule.  For others, they will be aware, but forget to report.  But many will choose not to comply, and when you look at the likely overall process, there won’t be much incentive to go along with the law.

The reporting can take one of two forms:  The commissions might decide that anglers must report their harvest within a time certain—say, 24 or 48 hours—after the fish are caught or, probably far less likely, they may require reporting immediately upon retention (which works fine with a smartphone, but would be problematic with a voice recorder or mailed report).  Both would be practically unenforceable.

If the commissions allow anglers to report hours after the fish are harvested, there is no way for law enforcement to know whether a violation ever occurred, for the enforcement agent will encounter such angler in the field, hours before any mandatory report would have to be made, and will have no way of knowing whether the report was ever sent.  The Division of Marine Fisheries would find itself in a position similar to that of the National Marine Fisheries Service, with respect to recreational bluefin tuna landings.  A mandatory requirement would be in place, but most people ignore it, knowing that they can do so with impunity.

On the other hand, if the commissions decide that harvest had to be reported as soon as a fish was retained, it would be theoretically easier to enforce the reporting requirement, but only if the reporting system allowed law enforcement agents to make a real-time inquiry to determine whether a report had been filed, and only if every law enforcement agent on the coast was equipped with the technology needed to make such inquiry.  Again, the legislature did not appropriate funding for such technology, and it is unlikely that anyone would believe that it would be worth purchasing such a system with the Division of Marine Fisheries’ already-allocated funds, particularly to enforce an infraction that will likely draw only a verbal or written warning or, at worst, a $35 fine.

So compliance with the new reporting law is likely to be fairly poor.

It will also fail to provide the Division of Marine Fisheries with another very important bit of information:  the number of fish caught and subsequently released.

While harvest numbers matter, and are usually the largest contributor to fishing mortality, that isn’t always the case.  In some species, release mortality can also make a significant contribution.  That was probably best illustrated in the most recent benchmark stock assessment of Atlantic striped bass, which found that release mortality comprised 48% of overall fishing mortality, compared to 42% for recreational harvest. 

That’s not the typical case, but given that both North Carolina’s southern flounder and its Albemarle/Roanoke stock of striped bass are severely depleted and subject to very restrictive regulations, release mortality could well be a very significant source of removals of both species.

Thus, it is difficult to see how a reporting system that is likely to see high levels of noncompliance, and in any event doesn’t record a potentially significant source of fishing mortality, is going to prove more reliable data than the Marine Recreational Information Program.

Yet that is the system that the North Carolina Marine Fisheries Commission and Wildlife Resources Commission are being asked to design from scratch, and the Division of Marine Resources will be expected to build and operate, without any dedicated funding from the state legislature.

The commissions are asking the public for any suggestions that they might have.  Input can be provided on online forms provided by both commissions, by mail, or at a public hearing to be held on May 1.  The comment period ends on May 20.  More information can be found at https://www.deq.nc.gov/news/press-releases/2024/04/22/public-comment-period-opens-temporary-rules-implement-new-mandatory-harvest-reporting-law.

As I noted before, I don’t envy the folks assigned to do the job, but it will be interesting to see what they come up with, and whether, against all odds, it somehow might almost work. 

NEW ECONOMIC REPORT CASTS LIGHT ON NATION'S FISHERIES

The National Marine Fisheries Service has recently released its latest edition of Fisheries Economics of the United States, the newest in an annual series of reports that dates back to 2006.  The report provides an overview of the nation’s commercial and recreational fisheries as of the end of 2022 and, from my perspective, contained a few surprises.

Perhaps the biggest surprise related to the relative size of the commercial and recreational fisheries. 

If you think back to 2014, you might remember when Michael Nussman, then the president of the American Sportfishing Association, kicked off the Center for Sportfishing Policy’s (then, the Center for Coastal Conservation’s) drive to pass the so-called “Modern Fish Act,” which was intended to weaken the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act with respect to recreational fisheries.

As part of that kickoff, Mr. Nussman displayed two pitchers, one filled with gumballs, and one with a single gumball rattling around in the bottom.  The pitchers, along with the gumballs that they contained, were supposed to represent the relative landings of America’s commercial and recreational fishing industries—which, given the size of some of the big commercial fisheries for walleye pollock and menhaden, was probably a reasonably accurate assertion.  With that relationship established, he then poured most of the gumballs from the “commercial” pitcher into the “recreational” one, claiming that the number of gumballs in each pitcher represented the relative number of jobs supported by each industry, with the recreational industry being the clear leader.

I didn’t think too much about his jobs comment, because I tend to pay more attention to the conservation aspects of fisheries management than to economic issues and, I suspect like many anglers, always accepted industry claims that recreational fishing provided greater economic benefits than does the commercial sector.  I never gave such claims any critical thought.

Apparently, that was a mistake.

The Fisheries Economics report reveals that the commercial sector not only supports more than twice as many jobs as does the recreational fishery—about 1,600,000 commercial jobs compared to only about 700,000 in the recreational sector—but also generates somewhat higher sales, $183 billion versus $138 billion.  

While many economic gauges of the commercial fishing industry, including sales and total revenues, were slightly lower in 2022 than they were in 2018, jobs were the one exception, showing steady growth each year, with the exception of COVID-impacted 2020.

It seems that the hoary advice to “Trust, then verify” applies to the recreational fishing industry's pronouncements as well as to everything else.

The nation’s commercial fisheries differ widely from region to region, in both revenues and the type of seafood caught.  Probably to no one’s surprise, the North Pacific region—which means Alaska—produces nearly 58% of all seafood landings (by weight) and 35% of the revenues.  Most of those landings are comprised of finfish, and most of that finfish is low-value walleye pollock which, in the United States, typically takes the form of Fillet O’ Fish sandwiches and imitation crab, although the majority of the walleye pollock landed are exported to other nations.  Because so much cheap pollock is in the catch, the average price of North Pacific seafood is the lowest of any of the regions, at about $0.43 per pound.

We see the opposite situation in New England, where only about 447 million pounds of seafood is landed—just 5% of United States landings—but because around 90% of those landings are high-value shellfish, mostly sea scallops and lobster, the average value of New England's landings in 2022 was $3.20 per pound, placing the region in second place for landings revenue.  That trend was even more pronounced in the Western Pacific—Hawaii and the various Pacific island territories—which only accounted for an inconsequential 0.35% of United States landings, but its landings were comprised almost entirely of tuna and other high-value finfish, which were worth an average of $4.62 per pound.

The volume and value of commercial landings in the other regions fell somewhere between those extremes, whether ranked by value, pounds landed, or average price per pound.  One of the interesting aspects of the commercial landings data was that, in five out of the seven regions (for whatever reason, NMFS did not break out data for the Caribbean region in the report), shellfish landings substantially exceeded landings of finfish.  The North Pacific and Western Pacific regions were the only exceptions to that general trend.

The recreational fishery showed more consistently positive economic trends than did its commercial counterpart.  All four of the economic indicators—jobs, sales, value added, and income—showed steady growth between 2018 and 2022, with no COVID-related dropoff.  

Angling-related jobs increased by 8% between 2021 and 2022, while sales increased 22%, income increased 18%, and value-added also increased 18% in the same period.  Durable equipment purchases accounted for the lion’s share of all the economic indicators; the remainder was attributable to expenditures made on fishing trips.  

I was surprised to find that, of the three fishing modes—for-hire, private boat, and shore-based—shore-based trips had the greatest economic impact, contributing 8% to employment, sales, and value-added impacts, and 7% to income, although the private-boat mode trailed the shore-based mode closely in every category but employment, where it lagged substantially.  In each case, the for-hire mode lagged the other two modes, and was particularly far behind in the sales and value-added categories.

As was the case in the commercial fishery, the characteristics of the recreational fishery differed from region to region.  Not surprisingly, the value of the recreational fishery was greatest in the south, where year-round fishing is the norm, and less in more northern (or, in the case of the Western Pacific, less populated) regions.  The Gulf of Mexico saw anglers expend more money, $5.1 billion ($3.4 billion of which was generated in west Florida), on fishing trips than anglers in any other region.  The Gulf was followed by the South Atlantic ($3.5 billion, with $1.6 million generated in east Florida) and Mid-Atlantic ($2.3 billion) regions.  The lowest trip expenditures were made in the Western Pacific ($435 million), New England ($584 million), and North Pacific ($696 million) regions.

How that money was spent differed substantially from region to region.  In most places, the for-hire fishery played a relatively minor role.  Although it accounted for about 60% of trip expenditures in the North Pacific, perhaps because of the dominance of the tourism industry there, and for about one-third of the expenditures in the Pacific region, it played a much smaller role elsewhere, accounting for a little less than 20% of trip expenditures in the Gulf of Mexico, perhaps 10% in New England, and little more than 5% in the Mid-Atlantic and South Atlantic regions.  In the Western Pacific, it played no role at all.

Perhaps unexpectedly, shore-based angling accounted for close to 60% of all trip expenditures in the South Atlantic, and less surprisingly, about half in the Western Pacific; in all other regions, except for the North Pacific, shore-based fishing contributed to between 30% and 40% of all trip expenditures, which is a large percentage, given that fishing from shore is not generally a costly endeavor.  Private boat fishing, which can be expensive, was the primary contributor to trip expenses in all regions except the North Pacific and South Atlantic.  In the Pacific region, shore fishing, private boat fishing, and for-hire fishing seem to account for approximately equal shares of trip expenditures.

Unlike the commercial data, which only showed trends since 2018, the recreational data goes back to 2013, and shows that angling effort has dropped sharply over that time.  Total trips, shore-based trips, and private boat trips all peaked in 2013, and have declined since, although 2022 effort in all three categories was noticeably above the lows hit in 2019.  The for-hire pattern is a little different, with trips peaking in 2014 but coming close to that level again in 2015, 2019, and 2021, before declining in 2022 to what was probably close to the time series average.

The national recreational catch was led by East and Gulf Coast fish.  In 2022, anglers caught (both landed and released) 70.1 million seatrout, 33.5 million striped bass, and 29 million of what the report listed as “summer” flounder, but given that it also said that such flounder were caught in the Atlantic and Gulf of Mexico, probably included southern and Gulf flounder as well.

As one would suspect, the catch of some species increased between 2013 and 2022, while the landings of others decreased during the same period.  The largest increases were to catches of red snapper (37%), striped bass (4%) and the various Pacific tuna (2%), while the largest decreases were to catches of dolphin (-58%), Pacific salmon (-38%), and summer flounder (-35%).

Looking at those figures, it becomes glaringly obvious that the declines were far greater than the increases, and that we seem to be losing far more than we’ve gained.  With the exception of red snapper, which hasbeen the beneficiary of a long, rigorous rebuilding program, there’s not a lot of evidence of good fisheries management anywhere in that list.

And that should start warning bells ringing.  As the Fishing Economics report shows, both the commercial and the recreational fishing industries can be important economic drivers for coastal states and, in the aggregate, important to the national economy as well.

But as I’ve noted so many times, if we want to have a fishing industry, we need to have fish.

Which means that maintaining an effective federal fishery management system ought to be a national priority, and one that must not be undermined by those, in both the commercial and recreational communities, who would sacrifice long-term sustainability for a mere few seasons of gain. 

STRIPED BASS MANAGEMENT BOARD TO FOCUS ON RELEASE MORTALITY

 

At last January’s meeting of the Atlantic States Marine Fisheries Commission, striped bass anglers naturally focused on the actions of the Atlantic Striped Bass Management Board, which finalized Addendum II to Amendment 7 to the Interstate Fishery ManagementPlan for Atlantic Striped Bass, and set the compliance requirements that states must meet for the 2024 fishing season.

The Management Board meeting ran far over its scheduled time, as such meetings are wont to do.  As a result, an important matter that normally would have been addressed at that meeting wasn’t aired until the next day, when David Borden, the Governor’s Appointee from Rhode Island, raised it at the meeting of the Interstate Fishery Management Plan Policy Board.  Mr. Borden said,

“At the last Board meeting I raised the subject of catch and release mortality on striped bass.  It’s well reflected in the minutes the concerns [sic].  But to summarize the concern is, we don’t currently have a process to examine that issue.  I’m getting increasingly concerned about the lack of that effort on that particular issue, because 40 percent of the mortality on striped bass relates to catch and release.  When you combine that with the news that we seem to get at every single meeting about poor year classes here, poor year classes there, invasive species feeding on striped bass in the estuaries and so forth.  I think we’re getting into a really dangerous place, where we have very limited management measures to address some of those types of concerns…”

The upshot was the Megan Ware, the Maine fishery manager who chairs the Atlantic Striped Bass Management Board, said that she and Emile Franke, the Fishery Management Plan Coordinator, would

“compile some of the documentation we’ve had, in terms of discussions on discard mortality, what the challenges are…some of the thoughts from the Law Enforcement Committee, the Technical Committee, so that is all in one place.”

Ms. Ware also talked about pulling together a workgroup that could prepare the groundwork for a broad discussion of discard mortality, which might eventually lead to concrete management measures.

It appears that further discussions on striped bass release mortality will be held when the Management Board meets on May 1.  The agenda for thatmeeting reveals that Dr. Michael Armstrong of Massachusetts will make a presentation on the findings of an extensive release mortality study that the Commonwealth of Massachusetts has been working on in recent years.  As the Division of Marine Fisheries explains on its website,

“Between 2020 and 2021, DMF biologists tagged 349 striped bass with accelerometer transmitters, caught with both live and dead bait using both circle and J-hooks.  These specialized tags sense ‘tail beats’ from the fish within an array of receivers, informing researchers whether the fish dies or not.  Preliminary analyses suggest that survival is related to hook location, water temperature, and handling time.

“As a follow-up, we will be expanding our investigation of release mortality to include striped bass caught via artificial lures and flies.  During the summers of 2023 and 2024, we will be seeking volunteer anglers to collect information when they go striped bass fishing…

“The ultimate goals of this project are to evaluate the conservation benefit of using circle hooks, identify the causes of release mortality, and to provide an updated estimate of release mortality that is representative of the entire recreational fishery.”

The study, when finally completed, peer-reviewed, and published, is likely to provide very meaningful guidance on how fishery managers might reduce striped bass release mortality.  Some of the information already developed, which is probably what Dr. Armstrong will present at the May meeting, will cast new light on why some released striped bass fail to survive.

In addition to Dr. Armstrong’s presentation, Ms. Ware and Ms. Franke will lead a Board conversation on information gleaned from past discussions on release mortality, and ask the Board whether it believes that a work group investigating the issue should be established.  To that end, Ms. Ware and Ms. Franke prepared a memorandum addressed to the Management Board, which set out some basic parameters defining such work group, and summarized the release mortality discussions to date.

It’s hard to believe that the Management Board won’t create a release mortality work group, given that release mortality is the only source of striped bass fishing mortality that is not meaningfully constrained by existing management measures.  In the recreational striped bass fishery, anglers are already constrained by a 1-fish daily bag limit, as well as a 28- to 31-inch slot size in the ocean and a 19- to 24-inch slot size in the Chesapeake Bay (along with different but similarly constraining slots in the Hudson and Delaware rivers); it’s impossible to reduce the bag limit below a single fish, and impractical to narrow the ocean slot size limit, and still maintain a viable recreational harvest, so addressing release mortality is the only unused tool left to fisheries managers.

And they’ll probably have to figure out the right way to use such tool very soon.

A new stock assessment update will be released prior to the ASMFC’s October meeting, and if that update indicates that the spawning stock biomass has less than a 50% chance of being rebuilt to its target level by 2029, the Management Board is going to have to take some sort of action to make it more likely that timely rebuilding will, in fact, occur.

Striped bass rebuilding was on track after the 2021 season, which saw slightly under 1,850,000 fish harvested and slightly under 28,700,000 fish released.  However, the recovery was thrown completely off track a year later, when harvest spiked to about 3,450,000 striped bass and releases inched upward to approximately 29,600,000.  Emergency management measures adopted in May 2023 were only partially successful in returning striped bass fishing mortality to sustainable levels and and upping the chances for a timely recovery, lowering harvest to around 2,550,000 fish while releases fell more sharply, to about 25,550,000.

Such figures suggest that additional management measures might be needed to rebuild the stock by 2029.  Addendum II empowers the Management Board to take any needed management actions without going through the formal Addendum process, and managing release mortality will almost certainly be part of any actions taken.  Probably for those reasons, Ms. Ware and Ms. Franke have suggested that any work group assembled report back to the Management Board by the Board’s October meeting, so that the Board might have such report on hand when it receives the results of the assessment update.

While we can’t know for certain what the report might say, we can probably assume that it will recommend some sort of closed season.  The big question is whether such season would only prohibit harvest, and allow a catch-and-release fishery to continue, or whether it would completely prohibit anglers from targeting striped bass.  With respect to that question, the Ware-Franke memorandum notes that

“…While there are noted concerns about the unenforceability of no-targeting closures (including concerns expressed by the Law Enforcement Committee), it is assumed that the maximum reduction in effort, and thus maximum reduction in number of releases, would be achieved with no-targeting closures.  No-targeting closures would address recreational releases from both harvest trips and catch-and-release fishing trips.  While no-harvest closures would reduce the number of fish harvested, angler behavior may shift to catch-and-release fishing, thereby increasing the number of recreational releases which is counter to the objective of reducing release mortality.

“…Fishing trips targeting other species that incidentally catch and release striped bass would still occur regardless of closure type.  Additionally, seasonal closures for striped bass may shift effort to targeting other species, or shift effort to other times of year when the striped bass fishery is open.  Regarding no-targeting closures, there is concern about the lack of standardized method to estimate the number of removals.  Estimating the reduction of removals from a no-targeting closure depends on assumptions about changes in angler behavior, which is highly uncertain…”

Such discussion sets out the issues that must be considered when deciding upon a no-harvest versus a no-target closure, but it also unintentionally illustrates the folly of trying to treat release mortality as an isolated issue, instead of integrating it into a suite of management measures that, when taken as a whole, reduces fishing mortality by the necessary amount.

That is largely captured in the sentence, “While no-harvest closures would reduce the number of fish harvested, angler behavior may shift to catch-and-release fishing, thereby increasing the number of recreational releases which is counter to the objective of reducing release mortality.”

Quite bluntly, merely “reducing release mortality” should never be a stand-alone objective.  The proper objective for striped bass managers is to “reduce fishing mortality by making appropriate reductions in the level of harvest and release mortality.”  Taking that approach would make things much easier for fishery managers, and would likely to lead to a more successful result.

Such success would be achieved by beginning with a no-harvest closure, and making two basic assumptions:  that anglers who previously harvested fish will shift to catch-and-release fishing, and that the fishing mortality from such shift to catch-and-release fishing will not materially exceed 9% of the mortality from harvest during the period that will henceforth be closed. 

Both assumptions are logical.  The Ware-Franke memorandum notes that

“Since 1990, roughly 90% of all striped bass caught recreationally were released alive either due to angler preferences (i.e., fishing with intent to release striped bass) or regulation (e.g., the fish is not of legal size, was caught out of season, or the angler already caught the bag limit).”

Given such a propensity for catch-and-release fishing, with even harvest-oriented anglers fishing and releasing bass caught out of season or in excess of the bag limit, it is not unreasonable to believe that most fishermen will continue to catch and release bass even if a no-harvest closure is imposed.  While there will be some recreational fishermen who will abstain from striped bass angling if they aren’t allowed to retain a fish, such fishermen will probably prove to be few in number; their temporary exit from the fishery will merely provide a buffer against any underestimate of release mortality.

Given that likelihood, any no-harvest closed season should be long enough to not only reduce fishing mortality attributable to harvest by the needed amount, but also to account for the assumed increased release mortality attributable to formerly harvest-oriented anglers switching over to catch-and-release for the duration of the closure.  

To avoid being caught in a sort of Xeno’s Paradox, in which managers lengthen the season to account for the additional release mortality caused by the original harvest closure, only to cause additional release mortality requiring a longer closure, ad infinitum, it would be necessary to add a few extra days to whatever season the calculations call for, to ensure that fishing mortality is adequately constrained.

In that manner, a no-harvest closure, which still allows some social and economic benefits to be generated by the fishery, could be fruitfully put in place.

Of course, there will be voices among the for-hire fleet, committed to maintaining a harvest fishery, who would condemn such an approach and argue that only a no-target closure would “fairly” address the release mortality problem.  In their minds, restrictions on harvest, but not on targeting, unfairly benefit the light-tackle fleet, which generally engages in catch-and-release, while placing the conservation onus on the traditionally harvest-oriented “six-pack” charters and party boats.

But the truth is that any vessel operator who took such position would be shooting themselves in the foot, for while a no-harvest closure would probably disadvantage the traditional boats more than it would the light-tackle fleet, such closure would still allow everyone to take people fishing and make some income, even if that income might be a little lower than it would have been if harvest was allowed.  Some boats might have to change their approach a little bit, and replace their usual broomstick-like trolling rods, wire line and umbrella rigs with spinning outfits and diamond jigs or other castable lures, but at least they could take out fares and show them a good time. 

While there are undoubtedly some customers who won’t charter a boat if they can’t kill a fish, there is also a real question as to how important harvest is to many charter boat clients, particularly in resort areas.  I well remember the former president of the Montauk Boatmens and Captains Association coming before NewYork’s Marine Resources Advisory Council some years ago and arguing that charter boats should be allowed to sell the striped bass caught by their customers, because many of those customers are tourists and have nowhere to keep or cook their fish once they return to the dock.

But while we can question the importance of harvest, one thing is certain:  Keeping a boat tied up at the dock during a no-targeting closure, instead of taking at least some customers out on catch-and-release trips, isn’t the best answer for anyone.

No-targeting closures would also cause real economic harm to tackle shops, gas docks and similar businesses, particularly in these days of often-scarce bluefish, three-fish bag limits for sea bass and more restrictive fluke regulations, when not fishing for striped bass could often mean not going fishing at all.

So as the Management Board begins to focus on release mortality, which they will probably be forced to do, anglers need to do all they can to ensure that managers don’t forget that release mortality, in and of itself, is not a problem.  A fish that dies after release is no more dead, and no more of a loss to the spawning stock than a bass that expires on ice in someone’s cooler. 

What matters is reducing overall fishing mortality.  Reducing release mortality, just like reducing harvest, is nothing more than one step toward achieving that goal.

 

 

 

 

 

A SETBACK FOR PLAINTIFFS CHALLENGING STRIPED BASS ADDENDUM II

 

Last month, I described how a group of Maryland charter boat operators and commercial fishermen have asked a federal district court to invalidate portions of the Atlantic States Marine Fisheries Commission’s recently adopted Addendum II to Amendment 7 of the Interstate Fishery Management Plan for Atlantic Striped Bass, in an effort to escape their share of the burden of conserving and rebuilding the coastal migratory striped bass stock.

As I noted at the time, the complaint in the lawsuit was badly flawed, misstating several points of both fact and law.  Among other things, it denied that the striped bass stock was overfished, alleged that the management actions of the Atlantic States Marine Fisheries Commission were governed by the Magnuson-Stevens Fishery Conservation and Management Act, and argued that the Atlantic Striped Bass Conservation Act diluted the ASMFC’s authority to manage striped bass, when in fact just the opposite is true.

The complaint could probably best be described as an expression of the pique that spread among Maryland’s professional watermen after the ASMFC’s Atlantic Striped Bass Management Board, in adopting Addendum II, imposed a minor reduction in the commercial striped bass quota and required anglers aboard Maryland charter boats to adhere to the same bag and size limits as all other recreational fishermen in the Chesapeake Bay.

Although, in adopting Addendum II, the ASMFC followed its regular procedures, holding public hearings all along striper coast and having its Atlantic Striped Bass Management Board meet no less than three times to debate the content of such Addendum before it was finally adopted, the plaintiffs argued that the process that the ASMFC followed was flawed, and somehow violated the 14^th Amendment to the United States Constitution by denying them

“life, liberty, or property, without due process of law.”

Plaintiffs also made the curious allegation that,

“As residents and thus citizens of the State of Maryland, Plaintiffs, as individuals or organizational members, have no State procedural rights that they can feasibly assert against the States where they do not reside and which, acting in concert through the ASMFC, have deprived them of their constitutional rights over the voting objection of the State where they do reside and are citizens thereof.”

As such language suggests, the lawsuit can best be viewed as one more example of a growing phenomenon in which individuals or organizations which are subject to some form of government restriction that they do not agree with take the position that they have the “right” to do what they please—in this case, catch more striped bass than the ASMFC, in its collective wisdom and advised by its scientists, believes prudent—and claim that such imagined “right” is guaranteed by the Constitution of the United States, even if there is no compelling precedent that supports such allegation.

The complaint also includes some of the sort of anti-“administrative state” language that often goes hand-in-hand with the creative imagining of never-before-seen “rights,” with the Plaintiffs alleging that

“Over the last 70 years, administrative agencies at all levels of government have performed an ever-expanding variety of government functions and imposed more regulations than could possibly have been imagined upon the enactment of the [Administrative Procedures Act] in 1946 and its State equivalents.

“The APA and comparable state laws were adopted to establish a set of procedural rules to govern this non-legislative form of governmental decision-making and, of even greater significance, to provide an effective method to preserve individual rights against the abuse of administrative power and, most importantly of all, to preserve the right of judicial review of agency actions.  [numbering omitted]”

I could go on, but you get the idea.  The complaint, far from setting forth a cohesive set of allegations that, when read together, make a logical case for judicial relief, is instead a jumble of grievances flailing about for some sort of legal underpinnings, which claim Constitutional protection from just about any administrative action that might have economic consequences.

It’s the sort of complaint that, if I saw it eight or ten years ago, I would have deemed a certain loser, completely lacking the legal support needed to have even the slimmest chance of success.

Unfortunately, while there have always been a few marginally qualified judges who elevate their personal ideologies above well-established law, their numbers increased substantially not too long ago, when far too many judges fitting that description were appointed to the federal bench, at both the trial and appellate levels.  Because of that flood of incompetent jurists, we have also seen far too many ideologically-based court decisions, contrary to or openly defiant of established precedent, handed down by the federal bench in recent years. 

I have to admit that I was concerned that if one of that recently appointed breed of judge was assigned to the Maryland striped bass case, things might have headed off in the wrong direction.

Fortunately, that didn’t turn out to be the case.  The challenge to Addendum II was assigned to a very competent and experienced judge, who has even presided over another matter involving striped bass and the cupidity of some Maryland watermen.

That was the first bit of good news.

The second bit of good news came on Friday, April 12, when I learned that such federal judge, after hearing arguments from both sides, denied Plaintiff’s motion for a preliminary injunction that would have prevented the provisions of Addendum II, or at least such provisions as reduced the commercial quota and required anglers fishing from Maryland charter boats to follow the same rules as applied to every other angler in the Bay, from being enforced until final judgment was rendered on the Plaintiff’s claims.

The purpose of a preliminary injunction is to maintain the status quo, and prevent a party to a legal action from suffering harm, prior to the final judgment.  To prevail on a motion for such an injunction, a party must generally show that it will suffer irreparable harm if the preliminary injunction is not issued and that it is likely to prevail in the pending legal action.  Issues of fairness are also considered, so even if the party seeking the injunction is likely to suffer injury if it is not granted, an injunction will probably not issue of the other party is likely to suffer even greater harm as a result.

When the judge in the Maryland lawsuit considered all of the relevant factors—with the likelihood of Plaintiffs’ ultimate success being the single biggest factor of all—he decided that it would be inappropriate to issue a preliminary injunction.  So far, Addendum II remains in full force and effect.

Capt. Robert Newberry, who serves as Chairman of the Delmarva Fisheries Association, one of the Plaintiffs in the suit, responded to the judge’s decision on the preliminary injunction by writing,

“Well, we did not get our injunction that we wanted yesterday from the federal court.  The judge did not dismiss the case, but is waiting for a response from ASMFC for a request for dismissal due on April 19^th.  We have till April 26^th to file our answer on the request for dismissal.  IT AIN’T OVER YET !!!  STAY TUNED !!”

And he’s completely correct.  The lawsuit is not over.

Yet.

But it may well be living on borrowed time.

As I noted above, a Plaintiff’s motion for a preliminary injunction will generally not be granted if the  Plaintiff is unlikely to ultimately prevail in the lawsuit.,  Given that the complaint makes a number of incorrect statements of both facts and law, and there is, to be charitable, very little precedent supporting its claims that the Plaintiffs’ Constitutional rights have been infringed, the court’s failure to grant a preliminary injunction may well presage the final outcome of the suit.

Taking a realistic view of the allegations in the complaint, the only claim that might possibly fly is the argument that the ASMFC’s fishery management decisions are subject to judicial review under the federal Administrative Procedures Act, and even that claim is on very shaky ground.

In 2010, the United States Court of Appeals for the 2^nd Circuit confronted the same issue in New York v. Atlantic States Marine Fisheries Commission, and found that

“The APA definition [of ‘agency’] expressly excludes certain entities, such as Congress and the federal courts.  Although an interstate compact entity [such as the ASMFC] is not specifically exempted from the definition, this ‘textual silence, when read against the backdrop of…the canons of construction applicable to statutes that implicate the separation of powers, points,’ to the conclusion that the ASMFC is not a federal agency within the meaning of the APA…

“The fact that the ASMFC was created by an interstate compact and approved by Congress does not alter this analysis.  We find that the APA’s definition of a federal agency does not fit the Commission.  The ASMFC Compact states that the ‘Commission shall be a body corporate, with the powers and duties set forth’ in the Compact.  Although the Commission acts in parallel with the federal government…it exists outside the federal administrative law framework.  And, it would upset the ‘federal-state balance’ to subject its actions to accountability measures devised to restrain the actions of federal authorities.

“The regulation of the territorial sea is a matter traditionally left to the states…With one enumerated exception, the [Magnuson-Stevens Fishery Conservation and Management Act] states that it shall not ‘be construed as extending or diminishing the jurisdiction or authority of any [s]tate within its boundaries…’  the fact that federal and state entities act toward a common goal does not convert the state—or interstate—body into a federal one.  [emphasis added, citations omitted]”

Maryland doesn’t lie within the 2^nd Circuit, so the federal court hearing the challenge to Addendum II is free to ignore the finding of the court in New York v. ASMFC.  However, that decision is nonetheless persuasive authority, and there is a good chance that it will be followed.

What will probably happen, now that the motion for a preliminary injunction has been denied, is that the ASMFC will move for the case to be dismissed, on the grounds that the complaint fails to make a claim for which legal relief may be granted.  The ASMFC’s brief will then cite New York v. ASMFC in support of its argument that the ASMFC is not subject to judicial review pursuant to the APA, and that all of the other, even weaker arguments made it the complaint have no merit.

If the court agrees, the matter will be dismissed, and Addendum II will remain in place.

If the court finds that Addendum II is subject to judicial review, it is still likely that after such review, the court will find that the record created at the various meetings of the Atlantic Striped Bass Management Board, combined with testimony provided in writing and at the public hearings, provided adequate grounds for the Management Board to adopt the Addendum.

Either way, the court’s refusal to issue a preliminary injunction after the April 12 hearing was clearly a setback for the Plaintiffs, and probably only the first of additional setbacks that will lead to the lawsuit finally dying an overdue and very well-deserved death.