EVERYONE WANTS SCIENCE-BASED FISHERIES MANAGEMENT--JUST NOT FOR MENHADEN

 

Most of the time, nearly everyone agrees that science-based fisheries management is a good thing.

The Magnuson-Stevens Fishery Conservation and Management Act states that

“It is further declared to be the policy of the Congress in this Act…to assure that the national fishery conservation and management program utilizes, and is based upon, the best scientific information available… [formatting omitted]”

and requires that

“Conservation and management measures shall be based upon the best scientific information available.”

The Atlantic States Marine Fisheries Commission expresses a similar sentiment in its Interstate Fisheries Management Program Charter, which states that

“It is the policy of the Commission that its [Interstate Fisheries Management Program] promote the conservation of Atlantic coastal fisheries resources, based on the best scientific information available, and provide adequate opportunity for public participation.”

The bias toward science-based fisheries management is certainly understandable, since hard data and peer-reviewed stock assessments certainly provide a better basis for management decisions than does anecdotal information and fishermen’s assurances that no management measures are needed because “there are plenty of fish out there…somewhere.  They just went away for a while.”

Of course, one would have to be completely naïve to assume that the rise of science-based management led to a new world where biologists determined the optimum management measures, and fishermen—and fisheries managers—meekly complied.  In many ways, the science just changed the focus of the debate.

Now, instead of merely trying to discredit management actions with anecdotal evidence, fishermen challenge the science itself, arguing that they’re catching plenty of fish, and if biologists can’t find them, it’s because they don’t know where the fish are and/or don’t know where to catch them.  Or, as in the case of striped bass, they might argue that the stock is healthy, because they’re spawning in new places where biologists aren’t looking—for example, in Connecticut’s Housatonic River—even though such places might be completely devoid of suitable spawning habitat.

But, whatever the argument, most fishermen aren’t going to give up killing fish without a fight.

Even fishery managers get in on the act, as happened last December, when the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board chose to ignore the stock assessment update for black sea bass, along with the Mid-Atlantic Fisheries Management Council’s Scientific and Statistical Committee’s advice, and leave management measures at status quo, even though the best available scientific information told them that the stock was more than 20 percent smaller than previously believed.

Usually, when the science is questioned, it’s because the data suggests that fishing mortality has gotten too high and landings must be reduced.  And when fishermen, or fishery management bodies, suggest that the science is better ignored, their arguments are usually countered by a host of conservation advocates, who demand that the best available science be used to develop management measures.

That’s why what we’ve been seeing occur with menhaden over the past couple of years, and more particularly over the last half-dozen months, seems more than a little weird. 

And more than a little hypocritical.

There was a time when menhaden conservation advocates believed in good science, too.

The original Fishery Management Plan for Atlantic Menhaden, released in 1981, was a truly awful document designed to serve the needs of the menhaden reduction industry, and not the needs of the menhaden resource.  It’s “Specific Management Objectives” were

“To achieve a reliable, productive capability for the Atlantic menhaden so that harvest may be maintained with confidence at or below the level of maximum sustainable yield (MSY);

“To take cognizance of the role of menhaden in the food chain of predatory game fish when determining MSY;

“To maximize yield per recruit consonant with the geographic distribution of the resource and the historic needs of the fishery;

“To encourage maintenance of a stable business climate.”

To achieve those objectives, the initial management plan created the Atlantic Menhaden Management Board, and decreed that such Board

“be composed of the six chief fishery management administrators of states actively participating in the management program, six menhaden industry executives who request membership, and an ex officio member from NMFS…This group will meet a minimum of two times per year to consider recommendations of their Atlantic Menhaden Implementation Subcommittee (AMIS) and take action on the AMIS recommendations and implementation strategy…  [emphasis added]”

The Atlantic Menhaden Implementation Subcommittee

“shall be composed of 3 industry and 3 state administrator members of the [Atlantic Menhaden Management Board] …[and] will provide guidance to the [Atlantic Menhaden Advisory Committee] on specific issues, receive management actions recommendations from the [Advisory Committee], and formulate a strategy for implementation of each recommendation that they approve… [emphasis added]”

Finally, the management plan established an Atlantic Menhaden Advisory Committee that would be

“appointed by the [Atlantic Menhaden Management Board]  and be composed of fishery biologists designated as representatives by the States actively participating in the management program, industry representatives designated by the companies in the purse seine fishery, and a NMFS biologist from the menhaden program who is actively engaged in the research and data base management…  [emphasis added]”

It was a classic case of the fox watching the henhouse which, with the industry representatives at all levels of the management process equal to the number of state biologists present, guaranteed that science would be subordinated to the interests of the menhaden purse seine fleet.

Conservation advocates and members of the recreational fishing community fought for many years to change the system.  I got involved in the fight around 1996, and was a relative latecomer compared to some of the people who had first engaged in the battle years before that.  But, whenever we got involved, we shared a common goal:  Getting the menhaden industry representatives off the management panels, and restructuring the Atlantic Menhaden Management Board, so that it looked like  all of the other ASMFC species management boards, with representatives from every jurisdiction with a declared interest, and no seats reserved for special interest groups. 

The Atlantic Menhaden Implementation Subcommittee would be abolished and replaced by a Plan Development Team and Technical Committee made up of ASMFC staff and scientists from the several states, and not from the menhaden industry, while the Atlantic Menhaden Advisory Committee would be reshaped into an Atlantic Menhaden Advisory Panel, with seats for stakeholders from all the interested states, and again no reserved seats for the industry, although industry members could apply for seats on the panel, subject to their state’s and the Management Board’s approval.

It took many years to get to that point, but in July 2001, the ASMFC adopted Amendment 1 to the Interstate Fishery Management Plan for Atlantic Menhaden, which removed the industry seats from the Management Board and related bodies, and created a management structure no different from that used to manage other species within the ASMFC’s jurisdiction.  As part of the process, Amendment 1 deleted the old “Specific Management Objectives” and replaced them with a new set of objectives, one of which was to

“Base regulatory measures upon the best available scientific information and coordinate management efforts among the various political entities having jurisdiction over the fisheries.”

Science-based menhaden management had just taken a big step forward.  However, the debate over what constituted a “healthy” menhaden stock continued. 

Were the current biomass and fishing mortality reference points correct?  And, perhaps more important, should menhaden be managed pursuant to a traditional, single-species model that only considered the fish’s ability to maintain spawning stock biomass at or near the target level, or should the menhaden’s role as a forage fish, and thus its importance to the marine ecosystem, be considered as well?

At its March 2011 meeting, the Management Board initiated an addendum to investigate both of those issues, and so began what would become a long effort to manage the menhaden resource through so-called “ecological,” rather than “single-species,” reference points.

That concept was very new.  No other ASMFC-managed species, and probably no other marine species managed anywhere in the United States, was managed primarily to preserve its role in the ecosystem.  Thus, it was clear that the process of defining, much less adopting, ecosystem reference points would take a while.  Even so, Amendment 2 to the Interstate Fishery Management Plan for Atlantic Menhaden, adopted in December 2012, explicitly stated that the single-species biological reference points contained in that amendment were merely interim standards put in place until ecological reference points could be established.

The breakthrough came in 2019, with the release of the 2019 Atlantic Menhaden Ecological Reference Point Stock Assessment Report, the first menhaden stock assessment based on ecological reference points.  After reviewing the applicable ecosystem-based models, the biologists performing the assessment determined that

“All of the models explored by the [Ecological Reference Points Working Group] agreed on the current status of Atlantic menhaden: in 2017, overfishing was not occurring and the stock was not overfished, even when Atlantic menhaden’s role as a forage fish was taken into consideration.  Current levels of Atlantic menhaden removals were unlikely to cause a decline in predator populations.  [emphasis added]”

Those findings were confirmed in the 2022 Atlantic Menhaden Stock Assessment Update, which revealed that

“The Atlantic Menhaden Management Board (Board) adopted [Ecological Reference Points] in Amendment 3.  Thus, stock status was determined using those benchmarks.  The fishing mortality rate for the terminal year of 2021 is below the ERP threshold and target…, and the fecundity for the terminal year of 2021 is above the ERP threshold and target…Therefore, overfishing is not occurring that the stock is not overfished.

“The uncertainty in the stock status was evaluated through the [Monte Carlo bootstrap] analysis.  The terminal year [fishing mortality rate] was below the ERP threshold for all of the MCB runs and the terminal year fecundity was above the ERP threshold for all of the runs…  [emphasis added, internal references omitted].”

That would seem like good news.  Atlantic menhaden are being managed by a largely unbiased—or, at least as unbiased as a fishery management body ever gets—Management Board, which has agreed to manage menhaden based on its ecosystem role as an important forage fish.  And, even according to that standard, which is presumably more demanding than the use of single-species reference points would have been, the best scientific information available, even after rigorous statistical analysis intended to root out any anomalies, tells us that the Atlantic menhaden stock is very healthy and not threatened by current levels of harvest.

One would think that the menhaden conservation advocates would be happy, because the Atlantic menhaden stock is clearly in good health.

But it seems that the menhaden advocates aren’t happy at all, and they’re trying to stir up a storm of public discontent.  But just why isn’t completely clear.  The only thing that is clear is that their campaign has little to do with science, and a lot to do with emotion.

Consider the group that calls itself “Save Our Menhaden.”  The Save Our Menhaden webpage, once you get through all the initial hype, makes the statement that

“Menhaden evolved on this earth to be eaten by other marine species.  That is their purpose in life.

“Menhaden are the ‘Keystone’ prey fish species in our coastal and bay waters.  Menhaden average less than 12” in length and a pound in weight.  But they pack an enormous amount of Omega rich protein in their bodies, and they congregate in vast schools measured in metric tons.

“Predator and scavenger species on the Atlantic and Gulf Coasts from Humpback Whales and Dolphins, Osprey, Eagles, Pelicans, Gannets, Striped Bass, Tuna, Crabs and countless others depend on Menhaden for their survival.  They are the number one source of prey protein in these ecosystems.”

It’s a nice sounding story, but it’s just not true.

First, and probably a minor point, evolution just doesn’t work that way.  No plant or animal has ever “evolved to be eaten.”   As noted in one paper appearing on nature.com,

“evolution does not progress toward an ultimate or proximate goal.  Evolution is not ‘going somewhere.’  It just describes changes in inherited traits over time.”

So that entire passage begins with a false premise, and it’s accuracy doesn’t get any better as one reads on.  Although menhaden advocates often claim that menhaden are a “Keystone” prey species and “the most important fish in the sea,” that other fish “depend on Menhaden for their survival,” and that “they are the number one source of prey protein in these ecosystems,” a recent study performed in Louisiana pretty well debunks all such blather.  Instead, the study found that

“nearshore predators are generalists using the diverse prey base, and in concordance with previous findings, there is no single Menhaden-dependent predator.”

and that

“Despite its biomass and widespread spatial overlap with many predators, we did not find that Gulf Menhaden constituted large proportions of many predators’ diets…The finding that high trophic level [northern Gulf of Mexico] fishes have a diverse diet aligns with those of [other researchers] who did not identify any predators that they considered to be highly dependent on Gulf Menhaden.  Similarly, [a researcher] showed that Gulf Menhaden contributes to only 2 to 3% of the diets of most predators.  [emphasis added]”

There is little reason to believe that Atlantic menhaden are significantly more important than their Gulf counterparts.

Thus, the best available scientific information doesn’t support the notion of menhaden being a “keystone” prey species, that any fish depends on menhaden for its survival, or that menhaden “are the number one source of prey protein” in marine ecosystems.

And that poses a problem for a number of marine fisheries-oriented consultants, who pay their mortgages and their children’s tuitions with fees earned by advocating for additional restrictions on, or even the complete abolition of, the menhaden reduction fishery.

So at least some have adopted a new approach:  They have completely abandoned the science, and are now asking President Trump to issue an executive order outlawing reduction fishing for menhaden.

It’s an interesting ask.

The best-publicized push for an executive order is being made by a group calling itself “Make America Fish Again,” which appears to have at least some support from anglers, charter boat operators, and commercial fishermen in Virginia, Maryland, Louisiana, and perhaps other coastal states.  Who is managing and financing the effort is not completely clear.  The organization has a website, cynically addressed http://www.oceanherotrump, that features a series of short videos opposing large-scale commercial fishing for menhaden, herring, and other forage fish, but fails to identify any individuals who might be responsible for its content.

It makes one wonder what someone might be trying to hide.

In any event, the executive order that the group is seeking would reportedly take four related actions, 1) banning the use of midwater trawls for forage fish species, 2) ending the reduction fishery for menhaden and other forage fish, 3) directing the National Marine Fisheries Service to manage forage fish for ecosystem health, and 4) setting science-based catch targets (presumably for forage fish) to protect predator species.

Some of those goals might be justifiable, although it’s noteworthy that, when the New England Fishery Management Council attempted to ban midwater trawling for Atlantic herring in a defined area off the coast a few years ago, supposedly to provide more forage for bluefin tuna, whales, and other predators, a court invalidated the resulting regulation, finding that it lacked scientific support.

Any executive order banning midwater trawls might run up against the same legal issue.

Given that menhaden are currently the only fish, at least on the Atlantic coast, that are subject to a reduction fishery, there is also a question of how well that provision would fare.  Generally, executive orders have the force of law unless contravened by an action of Congress, so it might very well survive a court challenge.  At the same time, given that the challenge is to the ultimate use of the menhaden—reduced into fish meal, etc.—and not to the menhaden quota itself, which determines how many fish may be killed, one might reasonably question the motive behind the request for executive action.  If the menhaden currently killed and reduced into fish meal were, instead, killed and used for, say, lobster bait and fertilizer, would the impact on the stock be any different?  Logically, it would seem not, which then raises the question of whether the ban on reduction fishing might be motivated by a philosophical distaste for large-scale fish harvest by corporate entities, rather than any concern that too many fish are removed from the stock.

And when it comes to menhaden harvest, at least, the ASMFC, as noted earlier, already manages the species for its ecological role, and has already adopted science-based catch limits based on the needs of marine predators.  Given that the stock assessment, based on ecological reference points, gives the Atlantic menhaden stock a clean bill of health, it’s hard not to suspect that something other than a concern for the menhaden population is driving this effort.

But whatever that “something other” might be, it’s clear that it has no roots in the best available menhaden science.

All that aside, it’s necessary to look at the potential impact of the executive order itself.  For example, as noted a few paragraphs ago, executive orders generally have the force of law unless contravened by an act of Congress.  So the first question is whether any menhaden-related executive order would have to be consistent with the provisions of the Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters—perhaps including the provisions that require management actions to be initiated by one of the eight regional fishery management councils.

Whatever the ultimate answer, should the executive order be issued, litigation would certainly ensue.

There would also be the question of whether the President has the authority to restrict fisheries within state waters.  Certainly, Congress would have such authority, as the menhaden fishery has a sizeable impact on interstate and international commerce, and Congress has the authority to regulate both pursuant to Article I, Section 8, Clause 3 of the United States Constitution, which specifies that

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

But does the President, acting on his own initiative, have similar authority?  Nothing in the Constitution says so, and litigation, again, would likely ensue should the White House try to interfere with state water fisheries.

There’s also the possibility that, if the executive order banned the reduction fishery in federal waters, the ASMFC might reallocate Virginia’s unused quota among the various states, and move the entire menhaden harvest into those states’ waters.  While the big purse seiners are banned from the waters of all states save Virginia, nothing would stop inshore fishermen from using trawls, gill nets, pound nets, haul seines and any other legally acceptable gear to catch the entire quota, and ship it by the trailer-truck load (about 40,000 pounds) to the reduction plant in Virginia or to lobstermen in New England, depending on who was willing to pay the best price.

Such a situation would probably ensure that the entire 51 metric ton quota for the Chesapeake Bay would be caught every year, because the reduction fleet wouldn’t be allowed to fish anywhere else, and that the Gulf of Mexico menhaden fishery would be prosecuted only in states’ shallow inshore waters, where the seines would do the most harm.

Unintended consequences can sometimes be ugly.

And then there’s the biggest question, which is why President Trump should want to sign an executive order ending the menhaden reduction fishery in the first place, particularly given the executive order that he signed on April 17.  That executive order, “Restoring America’s Seafood Competitiveness,” sought to end the overregulation of the seafood industry, reduce the seafood trade deficit, support maritime jobs and, above all, promote domestic fishing.

When viewed in the light of that earlier executive order, the menhaden reduction fishery appears to be just the sort of fishery the President would want to promote.  The science assures us that the menhaden stock is healthy, even when assessed in the context of its ecological function, so the harvest causes no harm to the United States.  Most of the product is being shipped overseas, while the revenues from the fishery flow into the United States, helping to reduce the seafood trade deficit while not only supporting many American jobs, but supporting jobs in regions of Virginia and Louisiana where good-paying jobs can be hard to find.

From the perspective of restoring America’s seafood competitiveness, then, shutting down the reduction fishery would seem to be a foolish thing to do.

Yet, there is another perspective to consider.

While the overall menhaden population may be healthy, both along the Atlantic coast and in the Gulf, the question of local depletion remains.  Although localized depletion has never been conclusively established, there is plenty of anecdotal evidence that suggest that it might exist.

That is particularly true in the Chesapeake Bay, where Maryland fisheries officials claim that there are too few menhaden to support the traditional pound net fishery, and some biologists have argued that a lack of menhaden is causing osprey’s nests to fail.

So maybe the folks who are seeking to shut down the reduction fishery are, to use an old expression, putting the cart before the horse.  Maybe what they ought to be doing, instead of ignoring the science and preemptively seeking to shut down fisheries, is trying to develop new science, specific to the localized depletion issue, to determine whether the menhaden fishery is, in fact, doing harm to the Bay, before they attempt to ban it.

At one time, everyone hoped that Virginia would fund such a study, estimated to cost about three million dollars, but the state legislature hasn’t come through with the funds.  So, it might be time to redirect all of the energy, money, and time currently spent attacking the reduction fishery to petitioning Congress, and asking it to fund the needed research.  It’s not unreasonable to hope that a Congress that had no problem allocating 12 million dollars for the so-called Great Red Snapper Count, to determine how many red snapper resided in the Gulf of Mexico, and 3.3 million dollars for another study dubbed the South Atlantic Great Red Snapper Count, might also be willing to cough up another 3 million to determine whether there is localized depletion of menhaden in the Chesapeake Bay.

That way, if the study found localized depletion, there would be a scientific basis for throwing the reduction fleet out of the Bay.

Of course, there is always the chance that such a study would find that no localized depletion takes place.

But, should that happen, the menhaden advocates could just ignore the science one more time, and seek another executive order to shut down the fishery.  At worst, they’d be in the same place where they find themselves now.