FEDERAL COURT DISMISSES LAWSUIT ATTACKING STRIPED BASS ADDENDUM II

 

When a judge’s decision in a fisheries lawsuit begins,

“Had our founding fathers chosen a fish rather than a bird as our national emblem, it would have to had been the striped bass, [a quote from George Reiger’s book, The Striped Bass Chronicles:  The Saga of America’s Great Game Fish]”

you can be pretty certain that the court’s ruling will favor the fish.

And that’s just what happened when, on November 14^th, 2025, Judge Trevor N. McFadden, of the United States District Court for the District of Columbia, dismissed the complaint in Cape Cod Charter Boat Association v. Burgum, an action originally brought to invalidate the Atlantic States Marine Fisheries Commission’s Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

I first reported on the lawsuit last May, when the action was originally filed.  I noted that the matter seemed to be little more than a rehash of the claims in Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, an action brought in the United States District Court for the District of Maryland, and was dismissed with prejudice by the United States Court of Appeals for the 4^th Circuit last February.

While Cape Cod Charter Boat Association v. Burgum added a few more plaintiffs and a lot more defendants to those named in the Delmarva matter, the Delmarva Fisheries Association and Maryland Charter Boat Association still appeared to be the primary drivers behind the litigation.  The complaints in both lawsuits embodied similar claims that the ASMFC’s striped bass management authority was somehow unconstitutional, and both complaints exhibited the same lack of understanding of the laws governing state and federal fisheries management, as well as how state and federal management interacts.

That lack of understanding was fully apparent about a month ago, when the Court heard oral arguments on a motion to dismiss filed by the defendants in the more recent action.  Judge McFadden acknowledged that in his recent decision, when he noted the

“Plaintiffs’ confusion about the nature of their claims and the relief they seek.  Plaintiffs’ Complaint proceeds on the theory that the Commission has become ‘a full-fledged’ federal regulator that commandeers States into regulating striped bass within state waters.  But in briefing and at argument, Plaintiffs inexplicably focus on laws governing fishing in federal waters.  More, they cannot decide whether the result of enjoining Addendum II would be to return power to the States or to return power to the federal government.  Compare, e.g., [Plaintiff’s Motion] at 11 (this lawsuit seeks to vindicate ‘sovereign powers reserved exclusively to the states under the Tenth Amendment’) with [Plaintiff’s Reply Brief] at 26 (this lawsuit seeks ‘the return of the unconstitutionally delegated authority to the federal government’).  This bait-and-switch reinforces the redressability problem.  It suggests that Plaintiffs know that they do not like the status quo, but they cannot explain why enjoining Addendum II is the solution. [some citations omitted]”

Those words provide real insight into the haphazard nature of the Plaintiffs’ arguments, and begin to explain why the Court dismissed the Complaint.

In federal practice, a Motion to Dismiss is filed soon after a complaint is served, and is intended to challenge some aspect of that complaint’s validity.  In Cape Cod Charter Boat Association v. Burgum, the Defendants’ Motion to Dismiss argued that the Court lacked subject matter jurisdiction to hear the Plaintiffs’ claims, and was based on two distinct arguments.  One was that the Plaintiffs lacked standing to sue; on that point, the Court described its duty as

“ensuring that the proper plaintiff sued the proper defendant over an injury a court can remedy.”

The Defendants also argued that the defendant states (the Plaintiffs sued, among others, all of the states belonging to the ASMFC, as well as state officers responsible for managing each state’s marine fisheries) were granted sovereign immunity from the suit by the Eleventh Amendment to the United States Constitution, which

“generally withdraws federal jurisdiction over claims against a State.”

Plaintiffs had the burden of proving both that they had standing to sue the Defendants, and that the Court had jurisdiction over their claims against the various states.

They failed to prove either one.

Surprisingly, despite there being five for-hire/commercial plaintiffs--the Connecticut Party & Charter Boat Association, the Montauk Boatmen and Captains Association, the Delmarva Fisheries Association, and the Maryland Charter Boat Association, in addition to the named Cape Cod Charter Boat Association--the Plaintiffs seemed to have a very difficult time alleging that Addendum II caused them any real harm.  As the Court observed,

“…Plaintiffs lack standing for all of their claims.  That may seem remarkable.  Fishing industry members should be able to allege facts establishing standing to challenge fishing regulations.  But Plaintiffs supply no detailed allegations about how their members’ injuries would change if the Court granted the relief Plaintiffs seek.  Plaintiffs rather ask the Court to exercise a roving law review power.  That will not do…

“Each Plaintiff alleges that ‘[m]any of its members conduct fishing operations’ and ‘are adversely affected by the conduct of [the Commission] and other Defendants in this case.’  That conclusory recitation does not cut it, even at the motion to dismiss stage…At the pleading stage, the Complaint must ‘contain sufficient factual matter, accepted as true, to state a claim of standing that is plausible on its face.

“Plaintiffs’ allegations that meet this standard establish injury only to Maryland fishermen in the Chesapeake Bay.  This is because the Complaint’s details about economic harm exclusively address Maryland fishermen.  More, Plaintiffs submitted eight letters discussing the importance of recreational fishing in the Chesapeake region and how the one-fish limit harms that industry…

“Because only Maryland Charter has plausibly argued injury to its members, all of Plaintiffs’ claims must be tethered to that injury.  That only one Plaintiff has sufficiently alleged an injury-in-fact would not matter if Plaintiffs’ claims overlapped entirely.  One injured plaintiff satisfies Article III [of the United States Constitution] for all claims arising from that injury.  But aside from Delmarva, the other Plaintiffs’ members fish in different waters, controlled by different States.  And because Maryland Charter’s members fish only in Maryland’s waters, the only relevant regulations are ones that apply in Maryland waters.  All this means that injury alone bars the non-Maryland Plaintiffs from establishing standing.  [citations omitted]”

While that conclusion might not be too surprising, given that the primary motivation behind both the Cape Cod Charter Boat Association matter and the earlier Delmarva Fisheries Association case was Maryland's adoption of more restrictive striped bass regulations for for-hire and commercial fishermen, if I was an officer, or even a member, of the other four Plaintiff Associations, and particularly of the Cape Cod Charter Boat Association, the Connecticut Party & Charter Boat Association, or the Montauk Boatmen and Captains Association, and if my association chipped in some cash to cover the legal fees in the just-dismissed lawsuit, I’d be asking some very hard questions about exactly what I was paying for.

And if my association was unable to allege and prove any injuries arising directly out of Amendment II, and that led to the recent dismissal, I’d also be asking just why we were involved in the suit in the first place.

Yet, even though the Maryland Charter Boat Association was the one Plaintiff that managed to get over the first hurdle of the standing test—alleging injury arising out of Addendum II—it still had to prove that the relief that it sought, enjoining and setting aside Addendum II, would provide at least partial redress for the injuries that they suffered.

That proved to be a hurdle that the Maryland Charter Boat Association could not surmount, largely because the ASMFC is not, itself, a regulatory body, but rather only adopts fisheries management plans that the individual states must effectuate through their regulatory or legislative processes. 

As the Court noted in its decision,

“Charitably read, the Complaint at most alleges that Addendum II harms Maryland fishermen.  It does not allege what would happen without Addendum II, much less that enjoining Addendum II would redress the only injuries that Plaintiffs plausibly allege—those resulting from Maryland’s one-fish limit.

“…Plaintiffs are regulated by Maryland, not the Commission.  Recall that neither Addendum II nor any other Commission-produced plan directly regulates fishermen.  Instead, the Commission identifies minimum conservation measures that signatory States then operationalize by implementing and enforcing their own regulations.  Maryland’s regulations are the relevant ones here because the only Plaintiffs with standing fish in that State’s waters.  The gist of Plaintiffs’ argument is that Maryland would not have enacted those regulations without Addendum II.  Even assuming Plaintiffs are right about that, they have not shown redressability.

“Because Maryland enacts the restrictions through its own regulatory process, the laws would persist without Addendum II.  More, everyone agrees that Maryland has not only implemented Addendum II’s requirements, it has gone beyond the regulatory floor Addendum II sets.  But Plaintiffs have challenged these regulations.  And a court cannot redress an injury when an unchallenged law would continue to inflict the same harm on Plaintiffs without the challenged one.  So Plaintiffs must plausibly allege that enjoining Addendum II will change how Maryland regulates them…

“…While it may be ‘theoretically possible’ that Maryland would change its regulations if Addendum II was unenforceable, Plaintiffs have not plausibly alleged that is a likely outcome.  Plaintiffs name Maryland Defendants this time, but they do not allege that Maryland would change its regulations.  In fact, when asked about whether Maryland would likely change its regulations, Plaintiffs refused to even speculate about how States would respond…

“Meanwhile, from what the Court can tell, nothing would likely change for Plaintiffs’ members without Addendum II.  Maryland—along with eleven other States and the District [of Columbia]—says that it would not likely rescind its regulations.  Recall that Maryland demonstrated commitment to the regulations by making stricter restrictions than Addendum II requires.  All of this suggests that even if Addendum II originally caused Plaintiffs’ harm, the undoing of [that action] will not undo the harm, because the new status quo is held in place by other forces—Maryland’s belief that the restrictions are beneficial.  Once again, Plaintiffs have failed to establish redressability because they do not plausibly allege that Maryland would opt to rescind its duly enacted regulations if Addendum II were enjoined.  [citations omitted]”

With that, and after some additional analysis of the issues raised by the parties, the Complaint was dismissed with respect to the Maryland Charter Boat Association as well.

Unfortunately, the dismissal probably doesn’t represent a final resolution of the various for-hire groups’ attack on Addendum II.  Dismissals based on a lack of subject matter jurisdiction may only be made “without prejudice,” meaning that despite the suit’s many seeming defects—and the Court noted that

“standing is not the only problem…the Court lacks jurisdiction over the claims barred by sovereign immunity.  Defendants raise a host of other flaws with the Complaint…”

--the Plaintiffs may still try to revive the controversy, either by drafting a new Complaint that addresses the issues which led to the recent dismissal or by bringing an action in one or more state courts to directly challenge state regulations.

Or, the Plaintiffs could choose to take an appeal, in the hope that the Court of Appeals for the D.C. Circuit will view the standing issue more favorably than either the D.C. District Court or the 4^th Circuit did.

Given that the Delmarva Fisheries Association case ended up in the United States Supreme Court, which decided against taking up the matter, it seems unlikely that Judge McFadden’s decision dismissing Cape Cod Charter Boat Association v. Burgum will be the last word in that matter.  Defeating Addendum II and the ASMFC seems to have become an obsession with the original Delmarva plaintiffs and/or their counsel, who appear determined to keep up the fight for as long as they can.

Should the case be given new life, and should it ever get to the stage where it is argued on the merits, rather than on procedural grounds, it still has the potential, however remote, to do real harm to the fishery management process, particularly given the ideological biases demonstrated by some courts, and by some judges, in recent years.

We can only hope that the entire dispute dies a well-deserved death instead.

 

 

RECREATIONAL SECTOR CONTINUES EFFORTS TO UNDERMINE FEDERAL FISHERIES MANAGERS IN THE SOUTHEAST

 

Early in 2014, a group of recreational fishing and boating industry organizations, organized under the aegis of the Theodore Roosevelt Conservation Partnership, issued a policy document titled “A Vision for Managing America’s Saltwater Recreational Fisheries” (Vision Statement), which noted that “Spending by saltwater anglers generated more than $70 billion in economic output, supporting more than 450,000 jobs,” but went on to complain that “in the midst of our success in rebuilding marine fisheries and the growth in saltwater recreational fishing, the federal fisheries management system has not adapted to meet the needs of this conservation and economic powerhouse.”

With those words, the organizations that collaborated on the Vision Statement launched an attack on the federal fisheries management system that has continued, unabated, to this day.

The Vision Statement focused on altering the federal fishery management process, seeking to create “a management system that addresses the needs of anglers and industry and produces the full range of economic, social and conservation benefits provided by recreational fishing,” rather than focusing on the health of fish stocks. It opined that “The laws that govern federal marine fisheries are primarily designed for and focused on commercial fishing,” and that “The federal agency tasked with managing marine fisheries has commercial fishing as its primary focus.”

It made the dubious claim that the primary federal fisheries law, the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), “relies on limited entry and catch share programs, along with fixed quotas that can be managed in real time” to manage fisheries, and that those tools, while appropriate for commercial fisheries, should not be used to manage the recreational sector.

As an example of how recreational fisheries should be managed, the Vision Statement noted that “Many state natural resource agencies, especially those in the South, recognize the benefits of a vibrant recreational fishing community and have managed to promote it while conserving their saltwater resources. Striped bass, red drum, black drum, summer flounder, sheepshead, snook, spotted seatrout and tarpon are examples of successfully managed state fisheries that sufficiently meet the needs of recreational anglers while providing extensive economic benefits to their state and national economies.”

It’s probably important to note that, as one of its examples of a “successfully managed” state fishery, the Vision Statement cited the Atlantic striped bass, a fish that is currently overfished, and has been for more than a decade, and which experienced overfishing from about 2003 through 2019 before the states took any meaningful action to address the situation. Yet, during all that time when overfishing occurred, striped bass nonetheless generated more angler trips, and presumably more economic activity, than any other East Coast species. Thus, striped bass provides an interesting insight into what criteria the Vision Statement, and so the recreational industry, uses to determine the “success” of state fishery managers.

The Vision Statement’s emphasis on economic concerns rather than stock health emerged again when it called for “manag[ing] recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas,” and for eliminating Magnuson-Stevens’ requirement that, whenever possible, overfished stocks must be rebuilt in no more than 10 years, so that “Instead of having a fixed deadline for stocks to be rebuilt…fisheries managers set lower harvest rates that would allow fish stocks to recover gradually while diminishing socioeconomic impacts.”

The recreational industry initially tried to attain their goals through legislation called the Modernizing Recreational Fishery Management Act (Modern Fish Act) which, as originally written, would have weakened the rigorous, science-based management approach required by Magnuson-Stevens. However, by the time the final version of the Modern Fish Act was passed, most of the industry’s proposed changes had been either removed or substantially amended.

At that point, the recreational industry largely abandoned their efforts to amend Magnuson-Stevens, and took up a new approach, arguing that state fisheries managers were more qualified to manage recreational fisheries than their federal counterparts.

Gulf of Mexico red snapper provided the primary impetus for their new effort.

Throughout the 2000s and early 2010s, anglers had chronically overfished the red snapper stock, causing the National Marine Fisheries Service (NMFS) to adopt shorter and shorter seasons in an effort to rein in the continuing overages. Anglers weren’t happy with those efforts to end their overfishing, and in 2013 convinced fishery managers in three states, Florida, Louisiana, and Texas, to stop coordinating state fishing seasons with those adopted by NMFS, and instead adopt longer seasons in those states’ waters.

That only ended up hurting the anglers, as NMFS managed all red snapper in the Gulf of Mexico as a single stock, so when recreational landings in state waters increased, the federal red snapper season was shortened to compensate, falling to a mere three days in 2017 (although NMFS later extended the season, knowing that it would lead to overfishing, a move that led to a lawsuit and an out-of-court settlement in which NMFS agreed not to knowingly allow red snapper to be overfished again).

In an effort to end the controversy, the Gulf of Mexico Fishery Management Council (Gulf Council) adopted Amendment 50 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, pursuant to which NMFS would establish annual catch limits and annual catch targets for the recreational fishery as a whole, but would then allocate quotas for each state’s private boat anglers; each state would then be allowed to craft seasons, bag limits and minimum size limits (that must be between 14 and 18 inches) designed to constrain catch to that state quota. For-hire vessels would have a separate quota and be managed solely by NMFS.

Despite the fact that NMFS set the annual catch limit and assigned each state’s quota, and despite the fact that states that didn’t stay within their assigned quotas faced pound-for-pound paybacks of any overage in the following year, spokespeople for various recreational angling organizations declared victory, saying things like, “Today’s passage of Amendment 50 (state management) by the Gulf Council is HUGE news for coastal anglers as it will allow Louisiana and the other Gulf states to manage their own private red snapper anglers.”

And the red snapper furor calmed down for a while, although over the past two years, for-hire vessel operators in the eastern Gulf of Mexico have expressed real concerns that overly-long state seasons have sharply reduced both the size and the number of red snapper, particularly on the more accessible inshore fishing grounds.

But new issues, and new calls for state management of species currently managed by NMFS, are arising in the southeast.

In 2024, recreational fishermen badly overfished greater amberjack in the Gulf of Mexico, at a time when the stock was already considered to be overfished. NMFS determined that anglers landed 218% of their 2024 annual catch limit, and since the management plan calls for overages to be paid back, on a pound-for-pound basis, in the next fishing year, that meant that the 2025 season should never have opened at all.

The Gulf Council acknowledged the consequences of the big 2024 overage, but as the season’s opening day, September 1, 2025, approached, the council noted that it had not received notice of a season closure from NMFS, even though it had sent a letter, unanimously approved by all Gulf Council members, to the agency, requesting clarity on the issue. So, the season opened on the scheduled date, even though, with an adjusted annual catch limit of zero because of the previous year’s overage, overfishing began the second the first greater amberjack was tossed into someone’s cooler.

Pressure from the Gulf Council, and from others concerned with the future of the greater amberjack stock and the greater amberjack fishery, apparently persuaded NMFS to finally close down the fishery on September 27, 2025. However, as was the case with red snapper a few years before, NMFS had no authority to shut down whatever greater amberjack fisheries might exist within state waters, and while most of the states adopted closures that mirrored NMFS’ action, Louisiana did not, but instead kept its season open until October 31, 2025.

In the notice announcing that it would not adopt an early greater amberjack closure, the Louisiana Department of Wildlife and Fisheries opined that, “Prior to state management of Red Snapper, anglers were faced with shortened seasons and reduced access. This untimely closing of federal waters for Greater Amberjack is another prime example of the need for state management using state data programs.”

The same notice stated, “Governor Jeff Landry and Louisiana Department of Wildlife and Fisheries (LDWF) Secretary Tyler Bosworth sent a letter to NOAA Fisheries earlier this month, requesting that management of Greater Amberjack be transferred to the state level…State management of Greater Amberjack would provide more flexibility in setting seasons and regulations, allowing greater ability to tailor state-specific management.”

Just how much “flexibility” was needed to tailor regulations that limit recreational landings to zero was never explained.

Louisiana’s actions were praised by that state’s chapter of the Coastal Conservation Association (CCA Louisiana), an organization that was at the forefront of efforts to turn Gulf red snapper management over to the states. On its Facebook page, CCA Louisiana stated that it

applauds the Louisiana Department of Wildlife and Fisheries and Governor Jeff Landry for their actions and stance on Greater Amberjack.

Our Department of Wildlife and Fisheries is truly one of the best in the country, and they have proven their expertise through their successful management of the Red Snapper fishery.

Unfortunately, NOAA has now closed the commercial harvest of Greater Amberjack and is considering closing the recreational season. This closure threatens our anglers’ access to the fishery for no reason.

It is not difficult to read that message as the first step in an effort to foment a crisis similar to that which occurred when states failed to coordinate their state waters red snapper seasons with those in force in federal waters, in what will become another effort to discredit federal fisheries managers and, this time, limit their ability to effectively manage the greater amberjack stock.

Something similar is happening in the South Atlantic, and it again involves red snapper.

In 2008, South Atlantic red snapper were found to be severely overfished. Spawning stock biomass had fallen to just three percent of its potential, while in 2006, the terminal year of the 2008 stock assessment, fishing mortality was more than twelve times the level associated with a sustainable fishery.

In 2009, NMFS proposed emergency regulations that would shut down both the recreational and commercial fisheries for 180 days, a closure that might be extended for an additional 186 days; NMFS also considered shutting down a large area of the ocean to all bottom fishing in order to prevent large numbers of out-of-season red snapper from being killed as bycatch, most particularly in the recreational fishery, although such closure was never put in place.

Since then, NMFS has partially rebuilt the South Atlantic red snapper stock. It is no longer overfished, although it is not yet completely restored. Overfishing continues despite extremely restrictive recreational fishing seasons which, since 2017, have only lasted between one and nine days, and a very small commercial quota. The main problem is that recreational fishermen are catching and killing large numbers of red snapper while fishing for other species when the red snapper season is closed.

As a result of such continued overfishing, NMFS has been sued on multiple occasions by commercial fishermen seeking to get recreational discards under control, as NMFS is obligated to do pursuant to Magnuson-Stevens. Recognizing that it was at fault, on August 22, 2024, NMFS entered into a settlement agreement with the plaintiffs in one of those actions, Tilman Gray v. Raimondo, in which it agreed, among other things, to “complete and submit to the Office of the Federal Register for publication by June 6, 2025, a final rule implementing a Secretarial Amendment to stop overfishing on the South Atlantic red snapper stock under 16 U.S.C. [section] 1854 (c) & (e).”

NMFS did publish a new rule, Amendment 59 to the Fishery Management Plan for the Snapper-Grouper Fishery (Amendment 59), on the agreed-upon deadline, which revised the specifications of the overfishing limit, acceptable biological catch, and annual catch limit for red snapper, along with the proxy for determining overfishing. But it did not include any measures to reduce red snapper bycatch in the recreational fishery, and thus is unlikely to end overfishing. Thus, it is also unlikely to fulfill the agency’s obligations under the settlement agreement in Tilman Gray.

As a result, NMFS was sued once again, with the plaintiffs in the new action, Slash Creek Waterworks v. Lutnick, challenging Amendment 59 on grounds which included the allegation that it did nothing to end the problem of dead recreational discards leading to overfishing.

Faced with extremely short seasons and unwilling to take responsibility for their own sector’s overfishing, recreational organizations in the South Atlantic are now falling back on a tactic that they used successfully in the Gulf of Mexico, and calling for the states to take over management of the red snapper fishery. As in the Gulf, they are successfully convincing state leaders to support such a change.

Congressmen John H. Rutherford (R-FL), Buddy Carter (R-GA), Russell Fry (R-SC), and David Rouzer (R-NC) have formed something they call the “House South Atlantic Red Snapper Task Force (Task Force).” In announcing the Task Force’s formation, Rep. Fry said, “This task force will focus on enhancing data collection, expanding state authority, and ensuring more predictable and longer seasons that benefit anglers and local businesses alike. It’s time we bring local expertise and common sense back to the forefront of fisheries.”

Fisheries managers in North Carolina, South Carolina, Georgia, and Florida subsequently provided the Task Force with a so-called “Action Plan” that would radically alter South Atlantic red snapper management.

Following the blueprint used in the Gulf red snapper fishery, the Action Plan calls for NMFS to issue exempted fishing permits to each state, to allow the states to conduct data-gathering programs that will pave the way for the South Atlantic Fishery Management Council to set the annual catch limit and, presumably, individual state quotas, while allowing the states to determine the recreational bag limits and seasons, and gauge landings through their own data collection programs.

On November 10, 2025, Florida Governor Ron DeSantis declared that his state had submitted its application for an exempted fishing permit, saying, “I was proud to announce that Florida anglers will soon be able to enjoy more Atlantic Red Snapper fishing…The Trump Administration has taken action to rein in the bureaucracy and return the power to the states, where it belongs…Just as it has on the Gulf coast, Florida’s management of Atlantic Red Snapper fishing will boost local economies along our Atlantic coast, supporting our tackle and bait shops, hotels, restaurants, and the entire recreational fishing community.”

Not surprisingly, the various recreational fishing industry organizations enthusiastically supported both the Task Force and the Action Plan. Jeff Angers, president of the Center for Sportfishing Policy, gushed, “State management of South Atlantic red snapper is the right idea at the right time. We’ve seen in the Gulf of America that when states lead with sound science and local common sense, everyone wins—anglers get more days on the water, conservation outcomes improve, and coastal economies thrive. The leadership shown by Florida, Georgia, South Carolina and North Carolina offers real hope that the broken federal system will finally give way to a management model that reflects the reality on the water.”

However, federal red snapper management may soon run into a very large roadblock that does not exist in the Gulf.

In the Gulf of Mexico, most red snapper fishing mortality is caused by commercial and recreational landings, while in the South Atlantic, it is caused by recreational discard mortality, and that discard mortality won’t go away just because the states and their anglers would like it to. NMFS is still responsible for managing red snapper in federal waters, and Magnuson-Stevens still governs NMFS’ actions. It is NMFS that will set the overall recreational catch limit in the South Atlantic, as it does in the Gulf, even if the Action Plan is ultimately enacted.

And in setting the recreational catch limit, dead discards will still have to be considered in order to prevent overall fishing mortality from exceeding the overfishing limit. The states may try to adopt data collection programs that underestimate discard mortality, but absent a significant closed season that lets managers get recreational discard mortality under control, NMFS’ management of South Atlantic red snapper is likely to face continued legal challenges, and those challenges will have a very good chance to succeed.

As the process drags on, we can expect the recreational fishing industry’s assault on federal fisheries managers to continue, as the industry and “angler’s rights” groups work together to sell more fishing tackle and put more fish in anglers’ coolers, regardless of the harm that might cause to the nation’s fish stocks.

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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/

SALTWATER FISHERIES MANAGEMENT: STILL BEHIND THE CURVE

 

I’ve said more than once that it often seems that saltwater fisheries managers are between 50 to 100 years behind their freshwater counterparts.

Perhaps because rivers, lakes, and streams are smaller water bodies than the ocean, and the effects of overfishing are easier to see, freshwater fisheries managers were much quicker to adopt management tools such as size limits, bag limits, and seasons—not to mention user funding of the management process, in the form of fishing licenses—than those who managed ocean fisheries.

They were also much quicker to realize that different fisheries require different approaches to management.

The first freshwater recreational fishing licenses were adopted by Oregon and Indiana in 1901.  Although other states adopted freshwater fishing licenses not too long after that, and most coastal states have adopted saltwater licenses too, few if any of the saltwater licenses were put in place before the 1980s; today, New York, as well as New Jersey, still resist the adoption of fee-based licenses for saltwater anglers.

Recreational bag and size limits, as well as seasons, were also adopted in the early 20^th Century, but for a very long time, few saltwater fish were given similar protections.  When I was growing up in Connecticut during the 1960s, the only saltwater regulation we had was a 16-inch (fork length) minimum size on striped bass, with no restrictions on how many we could kill and no closed season.  It wasn’t until the early 1980s that Connecticut adopted an 8-inch size limit for winter flounder—to the great consternation of some of the anglers that hung out at the local town dock, who lamented the new ban on harvesting “potato chips” and the “sweet little ones”—although, as fish stocks declined, the bag and/or size limits for most species were put in place.

But perhaps the biggest difference between freshwater and saltwater fisheries management is that, in freshwater, the notion of fishing primarily for recreation, and not for food, is widely embraced, while coastal fisheries managers are still tied tightly to the concept of maximum sustainable yield, and so of maximizing the number of dead fish put on the dock, whether by recreational or commercial fishermen.

You don’t see freshwater fishery managers suggesting that, if anglers’ landings of, say, yellow perch or walleye—both fish that are commercially sold in some states—were lower than a particular water body could sustain, the state ought to allow gillnetters to come in to harvest and sell whatever fish the recreational fishermen left behind, in order to achieve the optimum yield.  For in fresh water, abundance isn’t seen as a bad thing, so long as the forage base can sustain it. 

Anglers enjoy fishing more if there are more fish in the water.

Contrast that sort of thinking to the language in Amendment 2 to the Interstate Fishery Management Plan for Bluefish, which permits the Atlantic States Marine Fisheries Commission’s Bluefish Management Board, acting in conjunction with the Mid-Atlantic Fishery Management Council, to transfer unused recreational quota to the commercial sector, rather than merely allowing that unused recreational quota to increase bluefish abundance and make more fish available to recreational fishermen in the following year (the provision also allows unused commercial quota to be transferred to the recreational sector although, in part because bluefish are still subject to a rebuilding plan, that has never yet happened, while transfers of recreational quotas to the commercial fishery have occurred multiple times under the old Amendment 1 to the management plan).

It almost seems that fisheries managers, both at the ASMFC and at the Mid-Atlantic Council, can’t understand the benefits of maintaining an abundance of fish in the water to the angling community, nor can they seem to get their arms around the concept of voluntary catch-and-release. 

I still recall listening to a joint meeting of those two management bodies while Amendment 2 was being debated, when someone—I think it was New York’s former Legislative Proxy to the ASMFC—raised the issue of managing bluefish for abundance rather than merely for yield, and another, long-time member of the Management Board conceded that he didn’t even know how they might go about doing such a thing.

The concept was just that alien to most of the people in the room.

Because, in saltwater management, the focus is still all about managing dead fish, not live ones, even though the bluefish fishery is overwhelmingly recreational.  The ASMFC notes that

“Bluefish are predominantly a recreational fishery, with recreational landings accounting for approximately 85% of total landings by weight in recent years.”

Yet even though anglers dominate bluefish landings, they still release the great majority of the bluefish they catch.  The ASMFC reports that

“Bluefish recreational releases have averaged approximately two-thirds of the total catch in numbers of fish since 1999.”

A fishery dominated by anglers, particularly anglers who voluntarily release the majority of their catch, seems to be one that should be managed for abundance, not yield.  Yet fishery managers have expressly rejected that approach, preferring one in which the fish released by recreational fishermen may be used, not to increase bluefish abundance and improve the angling experience, but to increase commercial landings instead.

Marine fishery managers seemingly can’t wrap their minds around the concept of managing a catch-and-release fishery.

We saw evidence of that again during the recent debate over Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, when some members of the Atlantic Striped Bass Management Board were steadfastly focused on imposing so-called “no target” closures, which would prohibit intentionally catching and releasing striped bass during any closed season.

Instead of just seeking to reduce recreational fishing mortality, which included both landings and the  fish that died after release, they insisted on separating the harvest fishery from the catch-and-release fishery and imposing restrictions on both, out of some sense of “fairness” and “equity.”   Even though anglers release about 90% of all striped bass that they catch, and have since about 1990, it never occurred to such people that it might make more sense, from both a biological and from a socioeconomic perspective, to maintain a fishery that treads more lightly on the resource, imposing a mere 9% mortality rate while still generating significant economic and social returns, while placing greater constraints on a fishery that generates a 100% mortality rate on the fish retained along with a 9% mortality rate on those released.

To them, it’s still all about maintaining yield.

You don’t see that emphasis on yield in freshwater fisheries.  Here in New York, we see many recreational regulations that emphasize creating a quality recreational fishery rather than maintaining a large recreational harvest.  Such regulations range from no-kill sections of trout streams to extra-large size limits for muskellunge to no-harvest waters for largemouth bass, because managers have learned that, in many cases, maintaining yield is not anglers’ primary concern.

And that brings us to what might be one of the most important differences between freshwater and saltwater fisheries management:  The recognition that some fish, although edible, are pursued mainly for sport, while others are pursued primarily for their food value—and  that “gamefish” and “panfish” ought to be managed differently to get the best outcomes for both.

I should probably note that when I use the word “gamefish,” I’m not using it in the same sense that some angling groups do, to denote a species that may not be commercially harvested, although in most freshwater fisheries, that is the case.  Instead, I’m using it to denote a species that is pursued primarily for sport, and which, although edible, is often released.

And when I use the word “panfish,” I’m not referring to fish that can usually fit within the confines of a skillet, but instead to fish that, while perhaps fun to catch, are typically pursued in a harvest, rather than in a catch-and-release, fishery.

Thus, freshwater bass, muskellunge, striped bass, and bluefish might all be considered “gamefish,” while bluegills, bullheads, black sea bass, and red snapper all fall within the description of “panfish.”

If we look at New York’s freshwater fishing regulations, we see how that works out in the real world.  

Largemouth and smallmouth bass are gamefish.  There is a 5 ½-month-long season when they can be harvested, with a modest bag limit of 5 fish and a 12-inch minimum size, and for the rest of the year (with exceptions on certain waters), the season is closed, but bass may nonetheless be intentionally caught and released, provided the angler only employs artificial lures, and not live bait.  Except for the live-bait prohibition, such regulation is similar to the sort of no-harvest closed season that the “no-targeting” advocates opposed during the recent striped bass debate, because it was supposedly “inequitable” to the people who wanted to kill their fish. 

On the other hand, yellow perch, crappie, and the various sunfish are panfish, and are managed as such, with no closed seasons, a bag limit of 50 for perch and 25 for crappie and sunfish, and a 10-inch minimum size for crappie, with no minimum for sunfish or perch.  Catfish are another classic panfish, and for those—whether they are channel cats, white cats, or bullheads—there are no recreational regulations at all.

Muskellunge are arguably the ultimate freshwater gamefish, and for them, New York maintains a general 1-fish bag limit, 40-inch minimum size, and a season that protects spawning fish.  But for places like Lake Erie, which are known to produce trophy fish, the size limit is increased to 54 inches to improve the angling experience.

Because having a good fishing trip, particularly for gamefish, often isn’t about filling a cooler.

Saltwater managers still haven’t figured that out.

We’ve already seen how, in the case of bluefish, if anglers aren’t expected to kill their entire quota, Amendment 2 allows fishery managers to hand up to 10% of the recreational quota over to the commercial sector, to make sure that those fish are killed by someone.

And we’ve seen how, in the striped bass debate, the idea of allowing a catch-and-release fishery to continue while the season is closed to harvest is anathema to some, who call it “unfair” to catch-and-kill anglers.

While those two species are probably the paramount gamefish of the New England and mid-Atlantic coasts, in fisheries dominated by catch-and-release anglers, managers continue to treat them as panfish, with harvest given priority over pure recreation.

It’s not completely clear why that’s so, although the existence of commercial fisheries, that compete for quota with the recreational sector, and are usually more than willing to harvest whatever fish anglers don’t choose to kill, probably clouds managers’ thinking somewhat.  Judging them by their actions, many managers still fail to understand that managing a fishery primarily for sport, with most of the fishing mortality coming from fish that die after being released, is just as valid a “use” of the resource as managing them primarily for human consumption, and may even yield the greatest economic returns.

It is well past time for saltwater fisheries managers to remove their blinders, and be willing to take a lesson from their inland counterparts.  When managing panfish—perhaps tautog, or summer flounder, spot, or croaker—maximizing yield is a worthwhile goal.

But when managing gamefish, abundance, and a quality fishing experience, ought to be the primary concern.

IT'S STRIPED BASS POACHING SEASON--AGAIN--IN THE EEZ

 

The federal regulation found at 50 C.F.R. 697.7(b) is perfectly clear.

“Atlantic striped bass fishery.  In addition to the prohibitions set forth in [section] 600.725 of this chapter, it is unlawful for any person to do any of the following: 

“(1) Fish for Atlantic striped bass in the EEZ.

“(2) Harvest any Atlantic striped bass in the EEZ.

“(3) Possess any striped bass in or from the EEZ, except for [a so-called “transit zone” in Block Island Sound, where striped bass fishing is prohibited, but striped bass may be possessed by vessels “in continuous transit” between Block Island and the mainland].

“(4) Retain any Atlantic striped bass taken in or from the EEZ.”

In the parlance used in the recently concluded debate over Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, in the Exclusive Economic Zone—that is, generally speaking, those waters between three and 200 nautical miles off the United States coast—there is a permanent “no-target closure” of the striped bass fishery, where even catch and release fishing is not allowed.

50 C.F.R. 697.7(b) may be the most universally ignored fishery management regulation ever issued by NOAA Fisheries.

It was almost amusing, during the Addendum III debate, when members of the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board tried to argue in favor of no-target closures as an effective means to reduce recreational landings and release mortality.

Members of the ASMFC’s Law Enforcement Committee repeatedly told the Management Board that large no-target closures, in areas where fish other than striped bass could be readily caught, were unenforceable.  A Law Enforcement Committee spokesman assured the Management Board at last August’s meeting that, after polling all of the Committee members, from all of the states with a seat on that Board, none could ever recall when a fisherman was successfully prosecuted for violating a no-target closure without that fisherman also having a bass in their possession.  The same was true of the no-target closure in the EEZ.

Yet there were nonetheless Management Board members who argued that the lack of enforceability shouldn’t be seen as a problem.

Emerson Hasbrouck, the Governor’s Appointee from New York, talked about something he called the “80-10-10 Rule, saying,

“For something that’s difficult to enforce, 80% of anglers will do the right thing for the resource and abide by the regulations.  10% won’t really know what’s going on or understand the regulation, and 10% will willingly violate it.

“I’ve got faith that anglers conducting the 70 to 90% of striped bass trips will do the right thing, to do their part to help rebuild the resource…”

From those comments, it’s very clear that Mr. Hasbrouck is completely unfamiliar with the fall fishery in the New York Bight, where violating the no-target regulations in the EEZ is a regular occurrence.

And Mr. Hasbrouck isn’t alone in his idealized view of striped bass anglers.  At the same August meeting, Joseph Cimino, the New Jersey fisheries manager, supported the concept of no-target closures, saying

“if any of you believe that the no targeting in the EEZ hasn’t reduced the amount of effort in the EEZ, I would be shocked, and I would love to hear it.  Because I think there is absolutely at the very least a shame factor of fishing in the EEZ.”

I suppose Mr. Cimino isn’t completely wrong, because ever since the EEZ was closed, I don’t bass fish out there, so effort was reduced by at least one boat and one angler.  I hope and expect that I’m not the only one.

But I’m probably part of a distinct minority.

The unfortunate fact is that the fall striped bass run along the New York and New Jersey coasts marks the start of poaching season in the EEZ, when hundreds of boats—perhaps thousands on a nice weekend, if everyone fishing along the entire expanse of the New York/New Jersey coast is taken into accout—have no qualms about targeting striped bass in technically closed federal waters if that’s where they need to go to catch fish.

As far as the “shame factor” Mr. Cimino referred to, it just doesn’t exist.  Shame is such a minor factor in the fishery that a New Jersey party boat recently appeared to openly advertise the good striped bass fishing in the EEZ, publishing both on its Facebook page and in what looked like an Internet chat board,

“Another incredible day on the water, over 60 jumbo stripers caught and released before we moved within 3 miles of shore and landed a dozen keepers!  [emphasis added]”r

Far from being ashamed, whoever maintained that boat’s Facebook page seemed downright proud of the vessel violating federal regulations that make it unlawful to “Fish for striped bass in the EEZ,” even if whatever bass caught are released.

Reading that post, it would seem that the boat was unabashedly encouraging anglers to book a trip to engage in precisely that unlawful activity.

And that one party boat is certainly not the only vessel violating the no-targeting regulation.

While there are generally no problems so long as the bait, and so the striped bass, remain close to shore, I frequently see EEZ violations when I take my boat out of New York’s Fire Island Inlet in late October or early November if the bait—typically sand eels, but often menhaden, too—is concentrated more than three miles offshore.  Somewhere, I even have photos I took a few years ago, of a number of party boats from Captree State Park, surrounded by hordes of private boats, all diamond jigging bass in the EEZ. 

I made sure to include my electronics in the pictures, so it was clear from my GPS that I was more than three miles from shore when I took the photo, and still on a southerly heading, and clear from my radar screen that the boats were somewhere in front of me, and so still farther into the EEZ than I was.  At the time that I took the photos, I had planned to send them to the Department of Environmental Conservation’s enforcement folks, but never did, figuring that they couldn’t get a conviction on the photos alone, but would have to see the no-target violations for themselves, in real time, before taking appropriate action.

And convictions, followed by severe and well-publicized penalties, are the only way that the striped bass poaching will ever abate.

What usually happens is that both private and for-hire boats begin by searching for bass within three miles of the beach.  Fishing is slow.  Then maybe someone looks out to sea and notices birds diving over breaking fish at the edge of the EEZ, or maybe they just venture farther offshore looking for bait balls and feeding bass.  They find a concentration of fish and begin to hook up.

Someone then spots the boat that’s hooked up, and goes out to investigate.  Then someone spots a few boats congregating in the same spot, and…

Yes, people know it’s illegal. 

But if you’re a for-hire boat, and your competitors are catching fish while you’re not, you stand a real chance of losing business if you don’t head out to the EEZ and put your customers on some bass.  If you’re a private boat, you see the for-hire vessels concentrated offshore, assume they’re on fish, and head out to join them.  The growing concentration of boats draws even more vessels, and there finally comes a point where even many of the fishermen who were originally hesitant to violate the no-target regulation, aware that less-conscientious anglers are enjoying good fishing and noting what seems to be a complete lack of law enforcement, decide to cross the line and become poachers themselves.

In the end, it’s all about active enforcement and holding poachers responsible for their actions. 

We learned that in Virginia over a decade ago, when poaching striped bass in the EEZ was running rampant, with anglers targeting the large concentration of fish that overwinter off that state’s coast.  There, the issue was not only recreational fishermen illegally targeting the bass, but illegally harvesting them as well.  Things became bad enough that NOAA’s Office of Law Enforcement teamed up with the Virginia Marine Police to conduct an enforcement action targeting the violators.

Five Virginia charter boat captains were cited, and when charges were filed, they weren’t merely for violating federal striped bass violations.  The captains were also charged with violating the Lacey Act, which is a big deal for, as a press release issued by the United States Department of Justice explained,

“The Lacey act makes it unlawful for any person to import, export, transport, sell, receive, acquire or purchase and fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of the United States, or to attempt to do so.  Such conduct constitutes a felony crime if the market value of the fish or wildlife is in excess of $350.  Under the Lacey Act, it is a ‘sale’ of fish or wildlife for any person, for money or other consideration, to offer or provide guiding, outfitting, or other services.

“Each of the captains, all of whom operated charters out of Rudee Inlet in Virginia Beach, was charged separately on Nov. 8, 2012, with violating the Lacey Act by selling charter fishing trips to harvest striped bass illegally in the EEZ, among other charges.”

The Lacey Act convictions made it possible for the courts to impose meaningful penalties, and not just the kind of small fines that could be written off as a cost of running a successful business.  Although the captains all decided to plead guilty to avoid the most severe consequences, even the negotiated settlements were severe.  In one case,

“Scott, captain of the Stoney’s Kingfisher, was sentenced to a $5,600 fine and $1,900 in restitution to the National Oceanic and Atmospheric Administration (NOAA).  Scott was also sentenced to three years’ probation with special conditions prohibiting Scott from engaging in either the charter or commercial fishing industries, anywhere in the world, in any capacity, during the term of his probation.  Scott is prohibited from not only captaining a vessel, but also rendering any assistance, support, or other services, with or without compensation, for other charter or commercial fishermen.  [emphasis added]”

In another case,

“Lowery, captain of the Anna Lynn, was sentenced to 30 days in jail, followed by 12 months of supervised release with the special conditions that Lowery surrender his captain’s license to the U.S. Coast Guard and that he not be eligible for reinstatement of that license.  Lowery is also prohibited from engaging in the charter fishing industry in any capacity during the term of his supervised release.  [emphasis added]”

Penalties like that get people’s attention, and help to convince them that poaching striped bass is not a good idea.  From what I understand, vessels poaching bass in the EEZ isn’t a big problem off Virginia anymore.

Which is why we need the same sort of focused enforcement action, and the same sort of aggressive prosecution, in New York and New Jersey.  It will only take one or two such convictions, and one or two such penalties, to convince potential violators that even if law enforcement isn’t on the water every day, it’s not worth taking the risk that they might be out there on just that one day when a vessel operator, hungry for fish, might risk crossing the line into federal waters to pursue striped bass.

Without that sort of enforcement and resultant penalties, the poaching is going to continue unabated.

Because far too many striped bass anglers aren’t as altruistic as Mr. Hasbrouck appears to believe, and far too many of them feel no shame at all when they poach in the EEZ.

 

ATLANTIC MENHADEN: WHAT'S NEXT AT THE ASMFC?

 

Anyone following Atlantic menhaden management in recent weeks is aware that the Atlantic States Marine Fisheries Commission’s Atlantic Menhaden Management Board, when it met on October 28, did nothing to reduce menhaden landings in upcoming years, even though the most recent stock assessment update indicated that, to have a 50% probability of avoiding overfishing, such landings should be cut more than 50%, with the total allowable catch for the years 2026-2028 reduced to 108,450 metric tons from the current 233,550 mt.

That’s not to say that the Management Board took no action at all.  As noted in an October 31 press release put out by the ASMFC,

“the Board set the 2026 total allowable catch (TAC) at 186,400 mt, a 20% decrease from the 2023-2025 TAC of 233,550 mt…

“The Board also initiated an addendum to Amendment 3 to consider options to reduce the Chesapeake Bay Reduction Fishery Cap by up to 50% and distribute the cap more evenly throughout the fishing season…”

The problem is that commercial menhaden landings were only 166,844 mt in 2023, and only 186,155 mt in 2024.  It’s too early to know what final 2025 landings will be, but looking at the 2023 and 2024 data, it appears that while the Management Board’s actions may have cut the TAC, and so theoretical 2026 landings (the Board originally intended to set the TAC for 2026-2028 in a single action, but decided to revisit the 2027 and 2028 TAC at a future time), by 20%, but out here in the real world, where fish are actually removed from the water, they don’t seem to have reduced 2026 landings at all.

The ASMFC press release states that the Management Board didn’t drop the 2026 TAC to 108,450 mt because

“The Board expressed concerns about the socioeconomic impact of implementing such a significant cut in a single year and chose to take a more moderate cut for 2026 only,”

which was an entirely predictable and not completely unreasonable position for the Management Board to take, but it would have been nice, if the ASMFC was going to talk about taking “a more moderate cut,” that an actual cut—that is, to real-world landings, and not just to the TAC—had been taken.  What the Management Board actually did was much more akin to maintaining the status quo, so that, if any real cuts to landings in 2027 and/or 2028 take place, they’re going to have to be from 2023 and 2024 (and probably 2025) levels, rather than from a cut that had actually been made in 2026.

It would also have been nice had the ASMFC noted in its press release that a motion had been made at the October 28 meeting to phase in a real landings cut over three years, but that the Management Board had voted it down in favor of the quasi-status quo motion that was ultimately adopted.  To let people know that there was “a more moderate option” that didn’t call for the entire cut to be taken “in a single year,” but that it was rejected by the Management Board.

But all that is now in the past, and what really matters is what the Management Board intends to do going forward—and what those people and entities advocating for some form of menhaden conservation are going to do to point the Management Board in the right direction.

At this point, I feel compelled to point out that the menhaden advocacy community didn’t do themselves proud—and didn’t do the menhaden any favors—in the way that they addressed the issues to be decided on October 28.

In a piece that I wrote shortly before the meeting, I noted that

“we’ll undoubtedly see the folks who worship at the menhaden’s altar, and have regularly made irrational and scientifically unsustainable calls for the elimination of the menhaden reduction fishery, increase the volume of their yowling, and use the 2025 assessment update as an excuse to redouble their efforts, never seeming to realize that a menhaden that dies in a pound net is just as dead, and has the same impact on the stock as one that dies in a purse seine.

“By focusing on eliminating a gear type instead of reducing the TAC, such persons will make it easier for the industry to prevail, as they open the door to equally emotional arguments that the reduction fishery is unjustly targeted, that ending the reduction industry would kill an economically important business in an generally depressed area of the coast, and that closing that fishery would deny employment for people—including many people off color—in a region that offers few viable alternatives.

“And it will be easy for the industry to argue that, even with the population size revised downward, the menhaden stock is not in anywhere near as bad condition as the industry’s opponents maintain.”

And that’s pretty much what happened.

While some organizations reasonably requested that the Atlantic menhaden TAC be reduced to no more than 108,450 mt—as noted above, already a difficult thing to accomplish in a single year—others went further.  The Bonefish & Tarpon Trust, along with the International Gamefish Association—two organizations with staff experienced enough and sophisticated enough to know better—joined with other groups to call for the Management Board to, among other things,

“Establish a 2026-2028 TAC of 75,616 mt, a level that has a significantly less than 50% probability of exceeding the ERP F target, accounts for additional model and ecosystem risk, and protects the coastwide bait fishery; and, Reallocate all quota to the bait fishery, allowing the lobster and crab industries to maintain current levels of bait availability or better, and prohibit menhaden fishing for reduction purposes.  [emphasis added, numbering and formatting omitted]”

That was never going to happen.

It should have been perfectly obvious to anyone who understands how the ASMFC works that it was going to be extremely difficult to convince the Management Board to cut landings by over 50% just to set the TAC at 108,450 mt; believing that it might be possible to set the TAC even lower was an idea that could only arise from a pipe dream—or, in these times, perhaps from indulging in a few too many of those high-THC gummies.

If the Board had agreed to a three-year phase in that came somewhere close to the 108,000 mt level, it would have been a major win.

But then the various organizations compounded their error by calling for a complete elimination of the menhaden reduction fishery, a move that would remove six multi-million dollar fishing vessels, their crews (roughly 17 per boat), a land-based fish processing plant and its employees, as well as support staff and businesses, from the fishery—and from Virginia’s coastal economy—in a single swipe.  The organizations justified such action only by alleging that

“Removing menhaden from the ecosystem and rendering it into animal feed and other industrial products, most of which is exported to other countries, is a poor use of this vital resource.  Menhaden are many times more valuable to local and the national economies when used as bait for commercial lobster and crab fisheries or when left in the water to support the local fishing industry.”

They provided no economic analysis to support that claim.  But what they did do was force the Management Board into a position of picking winners and losers, and force the majority of that Board to decide whether they wanted to confront the representatives from the Commonwealth of Virginia—the only state with a menhaden reduction industry—and shut down an industry important to at least a small part of that state, without Virginia’s consent, while promoting the bait fishery.

Management Board members typically don’t like to be forced into such positions, a fact that, all other considerations aside, doomed the proposal to failure from the start.

The call to end the reduction fishery allowed the reduction industry to do just what I predicted it would—make an equally emotion-based appeal to the Management Board, which took the form of a video featuring reduction industry workers.  A press release, issued a day before the Management Board meeting announced

“The United Food and Commercial Workers (UFCW) Local 400 Union has released a new video highlighting the voices of its members who work as commercial fishermen in the Atlantic menhaden fishery.  The video showcases the pride, tradition, and hard work of union members whose livelihoods depend on a fishery that has operated from Virginia’s Northern Neck for well over a century.

“In the video, crew members describe the menhaden fleet as a family, one bound by generations of work on the water.  Many fishermen are second-, third-, or even fourth-generation employees, carrying on a legacy of providing for their families and their community…

“The video highlights how the menhaden fleet, operated by Ocean Harvesters, an American-owned company, provides hundreds of family-supporting union jobs in Virginia’s Northern Neck.  Ocean Harvesters’ crews are overwhelmingly local and members of UFCW Local 400 Union.  The company’s operations are deeply tied to the region’s economy, employing one of the largest minority workforces in Northumberland County…”

Folks I spoke with, who attended the Management Board meeting, said that something like 240 people attended, with many of those people clearly identifying themselves as members of the reduction industry.

If anyone thinks that the Management Board was going to look those people in the eye and effectively tell them, “We’re going to vote to eliminate all of your jobs, and put you on the unemployment line,” without a clear and compelling need to do so, they were chewing far too many of those THC gummies.

So, faced with some voices calling for the Management Board to outlaw the reduction fishery and give the entire 75,000 mt TAC to the bait fishery, others calling for a one-year reduction to 108,450 mt, a few supporting a 3-year phase-in, and others opposing any reduction at all (in a post-meeting press release, the Menhaden Fisheries Coalition called the reduced TAC “unnecessary”), the Management Board took the easiest path, slicing the proverbial baby not just in half, but into a few smaller pieces, reducing the TAC while maintaining the current level of landings, limiting its decision to a single year, and also initiating an addendum that will consider, but not necessarily do something about, the volume of menhaden landings in the Chesapeake Bay.

With that done, the next question is, can the menhaden advocates get their act together sufficiently to improve the outcome the next time around.

Personally, I doubt it, largely because of their chronic focus on the reduction fishery itself, rather than on the actual problem, cutting the TAC back to a sustainable level.

I mean, I understand where they’re coming from.

There remains a sort of romantic aura surrounding the small-scale fishermen, the image of men in small boats fighting to wrest a living from a cold, relentless, and dangerous sea.  That makes it easy to cast the reduction fleet, with its 165-foot vessels and all-encompassing seines as the villain of the story, and makes it really easy to drum up public support for a campaign against the big “foreign-owned fishing boats” [which is untrue, although you see it said all the time anyway] sucking up millions of pounds of menhaden, reducing it to fish meal, and shipping it overseas, instead of leaving it in the water to benefit U.S. fish and small-scale U.S. fishermen.

But the truth is that, even if a 75,616 mt TAC was politically feasible, from a biological perspective, it would make no difference to the menhaden stock whether that TAC was caught by the reduction fishery, the bait fishery, or some combination of the two.  So if the menhaden advocacy folks are going to make any progress, they probably ought to focus on biology, and the needs of the menhaden, and find a way to put their emotional and ideological aversions to the reduction fishery on the shelf for the duration of the campaign (and, perhaps, those advocates ought to spend some time thinking about the regulatory and resultant conservation advantages of having to oversee a small fleet of vessels, and monitor the landings that they make at a single Virginia facility, compared to the far more difficult task of trying to monitor the catch of hundreds—and more likely thousands—of small-scale operators who land menhaden in a vast number of ports all along the East Coast, and who might see the advantages of quietly selling at least some of their catch for cash, without reporting either the catch or the cash to state authorities or to the IRS, and skewing the data as a result).

And no meaningful TAC reduction is going to happen unless some sort of quota allocation occurs that assures that the bait fishery can harvest a reasonable amount of product.  It’s going to be very difficult to get the northern New England states—that is, Maine and New Hampshire, and probably Massachusetts—to agree to meaningful cuts if that means that their lobster fishermen have to go without bait.  Even though lobstermen in the Gulf of Maine and on Georges Bank are now overfishing the American lobster resource, reductions in effort, at least in the short term, are unlikely to occur, and the need for bait thus won’t decline anytime soon.

So the menhaden advocates ought to be thinking about a meaningful and realistic reallocation, which means not trying to outlaw the reduction fishery—which is a dead end—but rather to allocate enough fish away from Virginia to meet the bait fishery’s needs (and it’s not all about lobster; I freely disclose that as an active participant in the shark fishery, both for recreation and for research, I go through a lot of menhaden chum over the course of a year), but not so much that it can be cast as an intentional effort to shut down the reduction boats.

In other words, they are going to have to shift their campaign from an emotional appeal to the general public to something that makes biological and—yes, I have to say it—economic sense to the Management Board.

Can they do that?

I hope so, because the most recent scientific findings suggest that we need a big change in the TAC, and change often needs to be championed for it to happen. 

But finding the right champions, willing to fight the menhaden’s fight instead of their own, might prove a difficult thing to do.