ACCOUNTABILITY AND THE ASMFC: TAKING THE COMMISSION TO COURT

 

The Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters (generally, between three and 200 miles from shore), contains a provision titled “JUDICIAL REVIEW,”  which reads, in part,

“(1)  Regulations promulgated by the Secretary [of Commerce] under this Act and actions described in paragraph (2) shall be subject to judicial review to the extent authorized by, and in accordance with, [the federal Administrative Procedures Act], if a petition for such review is filed within 30 days after the date on which the regulations are promulgated or the action is published in the Federal Register, as applicable; except that—

(A) section 705 [which applies to temporary relief] of such [statute] is not applicable, and

(B) the appropriate court shall only set aside any such regulation or action [because such regulation or action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; was unconstitutional; was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or was adopted without observance of procedure required by law].”

Magnuson-Stevens also contains ten so-called “National Standards for Fisheries Conservation and Management,” which address such things as achieving optimum yield, preventing overfishing, following the best available science, allocating fishing privileges, maintaining fishing communities, and minimizing bycatch; the same law includes a provision that requires all overfished stocks to be rebuilt within a time certain which, if reasonably practicable, may not exceed 10 years.

If a fishery management plan or related regulation isn’t based on facts developed in the public hearing process, violates a National Standard, or does not provide for rebuilding an overfished stock within an acceptable time period, an affected citizen and/or organization may take the responsible federal agencies to court in order to hold them accountable for their failures.

The Atlantic Coastal Fisheries Cooperative Management Act, which empowered the ASMFC to manage coastal fish stocks and also empowered it to enforce the provisions of its fishery management plans should any member fail to adopt them, does not contain a section permitting judicial review of the ASMFC’s actions.  Nor does it contain any legally-enforceable national standards for the ASMFC’s fishery management plans, nor a requirement that the ASMFC restore overfished stocks.

While the Atlantic Coastal Fisheries Act does include provisions to hold a state accountable for noncompliance with an ASMFC fishery management action—should any state fail to adopt a required management measure, the ASMFC may find it out of compliance with any provision of a management plan and forward that finding to the Secretary of Commerce who, provided that they agree with the finding of noncompliance and believe that the relevant provision is necessary for the conservation of the affected species, must shut down the fishery for such species in the noncompliant state’s waters until compliance is achieved—it contains nothing that might hold the ASMFC accountable for its own actions and omissions in the management process.

The closest it comes is a provision which states that.

“Within 1 year after December 20, 1993, the Commission shall establish standards and procedures to govern the preparation of coastal fishery management plans under this chapter, including standards and procedures to ensure that such plans promote the conservation of fish stocks throughout their ranges and are based on the best scientific information available; and the Commission provides adequate opportunity for public participation in the plan preparation process, including at least four public hearings and procedures for the submission of written comments to the Commission.  [formatting omitted]”

However, what recourse an aggrieved party might have, should the ASMFC fail to live up to the standards that it itself has established, is completely unclear.

A big part of the problem is that the ASMFC is an interstate compact, a unique legal entity formed by a voluntary agreement of its member states, approved by Congress, and ultimately governed by Article I, Section 10, Clause 3 of the United States Constitution, which reads,

“No State shall, without Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in times of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

The interstate compact creating the ASMFC was approved by Congress on June 8, 1940 and later ratified by the compact’s member states.  The compact declares the ASMFC’s purpose to be

“to promote the better utilization of the fisheries, marine, shell and anadromous, of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of such fisheries from any cause.  It is not the purpose of this compact to authorize the states joining herein to limit the production of fish or fish products for the purpose of establishing or fixing the price thereof, or creating or perpetuating monopoly.”

To further emphasize that participation in the interstate compact is voluntary, its final article provides, among other things, that

“This compact shall continue in force and remain binding upon each compacting state until renounced by it.  Renunciation of this compact must be preceded by sending six months notice in writing of intention to withdraw from the compact to the other states party hereto.”

As an interstate compact duly approved by Congress, rather than a federal agency, the ASMFC has no regulatory authority over anyone.  It may only, pursuant to the Atlantic Coastal Fisheries Act, develop fishery management plans and related management actions, which the individual member jurisdictions must then adopt in regulations promulgated not by the ASMFC, but by the member jurisdictions themselves.

All of that makes it very difficult to hold the ASMFC accountable for any action or omission related to a fishery management plan.

The fact that the ASMFC acts as in interstate compact has, so far, proven to be an impossible obstacle for litigants to overcome.  The 2010 decision in New York v. Atlantic States Marine Fisheries Commission helps explain why.

In that matter, three parties which intervened in the action as plaintiffs, the United Boatmen of New York, the New York Fishing Tackle Trades Association, and the Fishermen’s Conservation Association, attempted to use the provisions of the federal Administrative Procedures Act to make the ASMFC a defendant in the action, which was originally brought by the State of New York against the National Marine Fisheries Service and its parent agencies.  The purpose of the lawsuit was to challenge the allocation of summer flounder made to New York’s recreational fishermen.

As noted by the United States Court of Appeals for the 2^nd Circuit, which decided the matter,

“ASMFC brought a motion to dismiss United Boatmen’s complaint in intervention for failure to state a claim.  In support of its motion to dismiss, ASMFC pointed out that neither its governing Compact nor any federal statute provide a private right of action to seek judicial review of its regulatory decisions.  More importantly for purposes of this litigation, the Commission mentioned that the provisions of the [Administrative Procedures Act], which provide a right of action against federal agencies, do not apply to action by an interstate compact agency.  [citations omitted]”

The trial court (the U.S. District Court for the Eastern District of New York) had gotten around the latter issue by deeming the ASMFC a “quasi-federal agency,” because of the high level of federal participation in its operations.  It noted that the compact creating the ASMFC was approved by Congress, that 90% of the ASMFC’s funding came from federal sources (and was also approved by Congress), that the Atlantic Coastal Fisheries Act’s language, quoted above, requires the ASMFC to base its actions on the best available science and to provide for public participation, that the ASMFC serves a federal objective by managing and conserving fisheries resources, and that two federal agencies, the National Marine Fisheries Service and the United States Fish and Wildlife Service, serve on ASMFC’s species management boards.  In its decision, the trial court also stated,

“The high level of federal participation in ASMFC does not, however, automatically transform ASMFC from an association of state representatives into a quasi-federal agency.  By its own terms, the ASMFC Compact expressly states that ‘[n]othing in this compact shall be construed to limit the powers of any signatory state.’  At the same time, the Fisheries Act renders [fishery management plans] prepared by the Commission binding on ASMFC member states.  The Fisheries Act expressly requires each state identified in [a fishery management plan] developed by the Commission to implement and enforce the [fishery management plan], usually through state-enacted laws or regulations.  Thus, ASMFC member states are bound by Commission decisions, which are controlled in part by federal standards.  In addition, the Fisheries Act confers authority on the Commission to monitor a state’s implementation and enforcement of Commission [fishery management plans].  If the Commission determines that a state is not in compliance with its [fishery management plan], the Commission is required to provide notice to the United States Secretary of Commerce.  While it is true that the Secretary must make an independent decision that the [fishery management plan’s] measures are necessary for fishery conservation before taking action to enforce the Commission’s [fishery management plan] (namely, by imposing a fishing moratorium), this separation of the ASMFC’s and the Secretary’s powers appears more formal than substantive.  It does not alter the fact that the Commission’s [fishery management plans] are binding on the states, that the Commission monitors state compliance with the [fishery management plans], and that the Commission’s determination regarding a state’s non-compliance is critical as to whether a moratorium on fishing will be imposed on that state.  Considered together, these congressionally authorized activities rise to the level of de facto regulatory power exercised by ASMFC on behalf of the federal government…the Commission’s de facto regulatory power is sufficient to transform the Commission into a quasi-federal agency for the purpose of [Administrative Procedures Act] review.  {citations omitted]”

While that might seem a reasonable argument, it wasn’t reasonable enough to persuade the 2^nd Circuit, which ultimately found that the ASMFC was neither a federal agency no quasi-agency, writing,

“The fact that the ASMFC was created by an interstate compact and approved by Congress does not alter [the] analysis.  We find that the [Administrative Procedures Act’s] definition of definition of a federal agency does not fit the Commission.  The ASMFC Compact states that the ‘Commission shall be a body corporate, with the powers and duties set forth’ in the Compact.  Although the Commission acts in parallel with the federal government in managing the stock of summer flounder off of the Atlantic coast,
it exists outside the federal administrative law framework.  And, it would upset the ‘federal-state balance’ to subject its actions to accountability measures designed to restrain the actions of federal authorities.  [citations omitted]”

The 2^nd Circuit’s decision seemed fairly decisive, but was only binding on federal district courts in New York, Vermont, and Connecticut.  Other circuit courts, with jurisdiction over matters arising elsewhere, could decide otherwise, although New York v. Atlantic States Marine Fisheries Commission nevertheless constituted persuasive, rather than binding, authority.

A recent 4^th Circuit decision originating in Maryland (the 4^th Circuit also has appellate jurisdiction over matters arising in Virginia, West Virginia, North Carolina, and South Carolina) again illustrated just how difficult it is to hold the ASMFC accountable for its actions.

The matter is one that I’ve written about before, Delmarva Fisheries Association v. Atlantic States Marine Fisheries Commission, in which a group of commercial fishermen and for-hire vessel owners challenged Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which reduced the commercial striped bass quota by 7% while cutting the bag limit for charter and party boats in the Chesapeake Bay from two fish to one—the same bag limit that had already been in effect for shorebound and private boat anglers. 

I wrote about the suit when it was first brought, challenging the ASMFC’s authority.   I wrote about it a month later, when plaintiffs’ motion for a preliminary injunctionwas denied, and the trial court noted that it was unlikely that plaintiffs would succeed on the merits.  Now, the trial court’s decision has been vacated by the 4^th Circuit, and replaced with an order to dismiss the entire action, because the 4^th Circuit found that the plaintiffs never had standing to bring suit in the first place, because it wasn’t the ASMFC that caused their alleged injuries, but rather the State of Maryland, which actually promulgated the regulations that imposed Addendum II’s management measures on that state’s fishermen.

In its decision, the 4^th Circuit wrote,

“Plaintiffs sued the Commission, not Maryland.  But they are regulated by Maryland, not the Commission.  So, to have standing to enjoin the Commission’s actions, Plaintiffs must show how doing so will change how Maryland regulates them.  Where choices by an ‘independent actor’ are involved—here, the sovereign state of Maryland—Plaintiffs face the ‘difficult’ burden of showing how Maryland would respond if the Commission’s Addendum II were enjoined.  In other words, Plaintiffs must plausibly allege that Maryland would likely rescind the one-fish limit on charter boats if the district court enjoined Addendum II.  They have not done so.

“First, Plaintiffs’ allegation that the Commission coerced Maryland to enact the regulations that are allegedly causing them harm is unpersuasive.  Maryland voluntarily entered thto e Commission and may withdraw for any reason.  As the Commission has authority to recommend plans only its ‘member states,’ only member states are subject to Bass Act penalties for noncompliance with Commission plans.  And taking a step back, Maryland has collaborated with the other states in the Commission for over eighty years to preserve critical fisheries in the Chesapeake Bay and the Atlantic Ocean.  As with any collaboration, sometimes Maryland takes and sometimes it gives.  But it would probably surprise Maryland to hear that it had been coerced.

“Second, even if Plaintiffs could establish that the Commission did ‘coerce’ Maryland to adopt the regulations, they would still need to plausibly allege that Maryland would opt to rescind its duly enacted regulations if Addendum II were enjoined.  When Plaintiffs’ ‘asserted injury arises from’ the Commission’s alleged coercion ‘of someone else,’ it becomes the ‘burden of the plaintiff to adduce facts showing that those choices have been or will be made in such a manner as to permit redressability of injury.’  But Plaintiffs fail to even allege that Maryland would likely repeal its regulations if Addendum II were enjoined.  And even if they had made that bare allegation, they would have needed to provide an explanation given that Maryland chose to adopt regulations more stringent than Addendum II’s recommendations.

“In sum, Plaintiffs have not plausibly alleged that Maryland is likely to repeal its striped-bass regulations if Addendum II were to be enjoined.  So Plaintiffs lack standing as they have failed to plead facts showing that an injunction of Addendum II would likely redress their injuries.  Accordingly, we must instruct the district court to dismiss this case.  [citations omitted]”

The decision in Delmarva Fisheries didn’t completely slam the door on judicial review of the ASMFC’s management actions, but it came pretty close.  It left open the mere possibility that an artfully drafted complaint, which included allegations that, if it were not for the ASMFC’s continued monitoring of state compliance, a state would repeal the regulations that the Plaintiffs sought to enjoin, might survive a challenge to the plaintiffs’ standing to sue.  However, making allegations are one thing, and proving those allegations another, so it is very possible that, even if a future lawsuit survived the ASMFC’s motion to dismiss, the final judgment would still favor the ASMFC.  Proving a regulator’s unspoken desire to repeal existing regulations is not an easy thing to do.

What the Delmarva Fisheries decision didn’t—and had no need to—address was just how the plaintiffs in that action might have successfully sued Maryland over its Addendum II striped bass regulations, had it not chosen to sue the ASMFC.  Had they tried, such effort probably wouldn’t have led to any greater success.

That’s because, while the details may vary a little from state to state, most states have passed laws similar to the federal Administrative Procedures Act, which specify how administrative agencies may go about their work and how a party, aggrieved by an agency decision, may seek judicial review.  One of the near-constants in state statutes and state case law (and federal law as well) dealing with judicial review of agency actions is whether there is “substantial evidence” in the administrative record to support the agency action; if such substantial evidence is present, the action will normally be upheld.

Cornell University Law School’s Legal Information Institute informs us that

“Substantial evidence is a standard of review used at the appellate level, usually to review an administrative agency’s actions…Substantial evidence is a deferential standard lower than preponderance of the evidence.

“In the context of federal agencies, for example, courts reviewing under the substantial evidence standard look to the entire existing administrative record and ask whether it contains evidence sufficient to support the agency’s factual determinations.  The standard ‘means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Thus if, in adopting regulations implementing Addendum II, Maryland’s administrative record included the findings of ASMFC scientists which supported passage of Addendum II, or the similar findings of its own scientific staff, along with the testimony of witnesses during the state’s own public hearing process, and such evidence was sufficient to support the regulations, a judicial challenge would fail, regardless of whether there was also evidence to the contrary; it is up to the agency to decide what evidence to believe.  It is also possible that the very fact that the ASMFC might find Maryland out of compliance with Addendum II, and that the Secretary of Commerce might impose a moratorium on Maryland’s striped bass fishery, causing substantial social and economic harm, if Maryland didn’t adopt conforming regulations would be sufficient for such regulations to survive legal challenge.

So how may someone who believes themselves injured by the ASMFC’s actions—or, just as likely, but the ASMFC’s inaction—successfully seek judicial review?

At this point, it’s safe to say that no one really knows.

We know that the federal Administrative Procedures Act probably can’t be used as a vehicle to challenge the ASMFC, that the Delmarva Fisheries decision will make it very difficult for a plaintiff to establish standing when suing the ASMFC itself, and that state administrative law principles will probably also make it difficult to argue that state regulations, adopted to comply with ASMFC management measures, are arbitrary, capricious, or without support on the administrative record,.

That closes a lot of doors.

As far as opening a door to a lawsuit goes, I have always wondered whether, in certain circumstances when a management plan requires the ACMFC to take a particular action—an example is language in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which states that

“If female [spawning stock biomass] falls below the target for two consecutive years and the [fishing mortality] rate exceeds the target in either of those years, the striped bass management program must be adjusted to rebuild the biomass to a level that is at or above the target within an established timeframe (not to exceed 10 years),  [emphasis added]”

--and the ASMFC fails to follow the mandatory language in such plan, a litigant might be able to seek a writ of mandamus to compel the ASMFC to act in accordance with the management document.

According to one reference (which is admittedly not an authoritative legal reference, but does employ language that is simple for a layman to understand),

“A writ of mandamus…is a judicial remedy…consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties…Writs of mandamus are usually used in situations where a government official has failed to act as legally required…Decisions that fall within the discretionary power of public officials cannot be controlled by the writ…

“The purpose of mandamus is to remedy defects of justice.  It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right…”

That all sounds encouraging, but it would still require a plaintiff to establish that the ASMFC is a “government entity,” that the ASMFC is “legally required” to follow the mandates of its own management plans, and that the ASMFC is not entitled to exercise at least a small degree of discretion as to whether it must—in the current example—initiate a rebuilding plan for striped bass if the relevant management trigger is tripped.

To make things even a little more complicated, Cornell University Law School tells us that

“For comity purposes, state courts cannot direct a federal officer through a mandamus and federal courts likewise cannot issue a mandamus to a state officer.”

So, anyone hoping to use a writ of mandamus to compel the ASMFC to act would have to first determine whether the interstate compact represents a state or federal entity, and defend that determination after filing a petition in the appropriate court.

And even after all that was done, a mandamus petition filed against the ASMFC would represent a case of first impression without guiding legal precedent, that the plaintiff could easily—perhaps probably would—lose.

Of course, there is still one other, intriguing possibility.  Counsel for the plaintiffs in Delmarva Fisheries has announced his intent to appeal the 4^th Circuit’s decision to the United States Supreme Court.  It is a longshot that such appeal would ever be heard.  Appellants don’t typically get to the Supreme Court “as of right.”  Instead, they must petition the court for a writ of certiorari allowing them to take the appeal, and as the website of the United States’ court system makes clear,

“The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently.”

The Plaintiffs in Delmarva Fisheries make a lot of dubious claims that seem completely without legal merit.  The trial court found that they were unlikely to prevail if the case went to trial, while the 4^th Circuit decided that they have no standing to sue.  The odds are very good that the 4^th Circuit will have the final word.

But we can only wonder whether there is the slightest chance that the Supreme Court might look at an interstate compact that has the ability and the duty to preserve and sustainably manage the inshore marine resources of the entire Atlantic coastline or, if it shirked in its task, might well oversee those resources’ demise, and in its success or failure affect the recreational, commercial, and economic well-being of many millions of stakeholders, and note that such compact’s management actions are subject to no judicial oversight at all.

And if the Supreme Court paid that kind of attention, it might decide that there is an “important legal principle” involved after all, deciding that when any entity, including an interstate compact, is given that much power, citizens ought be given a way to keep that power in check.

It is highly, highly unlikely that the Supreme Court will come to that decision.  It is a near-certainty that the petition for certiorari will be denied.

But only a near-certainty.  No one can ever be completely certain about what the Court will do.

So it’s still tempting to speculate about what might occur if the Supreme Court surprised us all, and decided to take up the case.

 

 

 

 

 

STRIPED BASS: ADDENDUM III MOVES FORWARD

 

Last Tuesday, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board met to provide initial direction to the Plan Development Team that will compose the initial draft of the proposed Addendum III to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.

In some ways, the meeting was fairly predictable and very routine.  In other ways, it was more than a little strange; perhaps the strangest part was that, at times, it seemed that some of the Board members forgot that the whole point of Addendum III is to rebuild the striped bass population, and not to find new ways for their favored sectors to increase their landings.

Some of the members also seemed to forget that Addendum III, in whatever form it might take, needs to be approved by the Board’s October meeting, and so sought to add various bells and whistles that would contribute nothing to rebuilding the stock.

Nevertheless, by the time that the meeting ended, the Plan Development Team had a pretty clear idea of what they, with the help of the Striped Bass Technical Committee, needed to do. 

But to get to the point, the Board took a long, twisting path, that doubled back on itself more than once, and might not necessarily lead to its intended destination—a fully rebuilt stock by 2029.

Ahead of the meeting, Emilie Franke, who serves as the ASMFC’s Fishery Management Plan Coordinator for Atlantic Striped Bass, had laid out a number of topics that the Board might want to consider in the draft Addendum III.  Megan Ware, a Maine fisheries manager who currently chairs the Management Board, suggested that Board members provide comment on which of those topics they’d like to see included in the draft addendum and that, absent any strong opposition, such topics would be considered by the Plan Development Team.  In the event of a strong difference of opinion, Ms. Ware would call for a formal motion and Board vote to determine whether an issue should be included in or excluded from the initial draft.

Given that some topics were addressed more than once, and in more than one way, I’m going to abandon my usual practice of presenting events in chronological order, and instead address them by topic, in the hope that such an approach will make the outcome of the meeting a little more understandable.

A 10-year stock trajectory

William Hyatt, the Governor’s Appointee from Connecticut, asked that the draft Addendum III include projections of spawning stock biomass that do not stop in 2029, as was the case with the projections provided by the Technical Committee ahead of the Board's December 16, 2024 meeting, but instead extend to 2035.  

Mr. Hyatt asked that such projections address two different recruitment assumptions, one being the low-recruitment scenario described in Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which is based on recruitment during the period 2007 through 2020, with the other reflecting the record-low recruitment that occurred during the period 2019 through 2024.  He also asked that for each of those recruitment assumptions, the Technical Committee provide two projections, which assume both a low and a moderate level of fishing mortality.

Although Mr. Hyatt was assured that such projections can be easily done, his proposal was opposed by Joseph Cimino, a New Jersey fisheries manager who frequently opposes striped bass conservation efforts.  Mr. Cimino argued that there comes a point where projections are “not helpful,” due to the increasing uncertainty in the assumptions used to project stock trajectory ten years in the future.  However, Dr. Katie Drew, a member of the Technical Committee, while admitting that projections of fishing mortality over a ten year period would be uncertain, noted that because of the long period before striped bass mature, a longer projection is needed if the impacts of lower recruitment were going to be included in any projections made.

She observed that

“Striped bass is a little unique in that there is a longer lag”

between the time when an individual recruits into the stock (at age 1) and when it will be mature (usually around age 5 1/2, although some mature at both younger and older ages).

In the end, Mr. Cimino did not oppose the projections requested by Mr. Hyatt being included in the draft addendum.

Probability of rebuilding

Historically, ASMFC striped bass management plans have been based on a mere 50 percent probability of achieving their goals.  On Tuesday, Christopher Batsavage, a North Carolina fisheries manager, asked that in addition to management options with a 50 percent chance of success, draft Addendum III also include management options that would provide a higher, 60 percent probability of rebuilding by 2029, in order

“to account for some inherent management uncertainty.”

No one rose to oppose that suggestion.

Special rules for anglers fishing from for-hire vessels

Nichola Meserve, a Massachusetts fishery manager who has become one of the champions of striped bass conservation, then asked that the various management options included in draft Addendum III not include “mode splits;” that is, provisions that grant special privileges to anglers fishing from for-hire vessels, which would not be enjoyed by the great majority of striped bass anglers.

Ms. Meserve noted that such mode splits had just been rejected a year ago, when the Board adopted Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass. She noted that there was only

“limited public support [for mode splits] at the time,”

 that such splits create angler compliance issues and so are not recommended by the ASMFC’s Law Enforcement Committee, and that they run counter to the sentiment that everyone should be making an equal contribution to striped bass rebuilding.

Prior to the Management Board meeting, I provided comments that were included in the materials provided to the Board which made similar arguments, and also noted that for-hire anglers were responsible for only a very small percentage of recreational striped bass trips—less than 1.5 percent in 2023—and so should not be unduly favored, given that it is shore-based and private-boat anglers that account for an overwhelming majority of the social and economic benefits derived from the recreational striped bass fishery.  I had also provided data suggesting that current striped bass regulations had no substantial impact on the overall number of for-hire trips taken along the coast.

Despite such arguments, Michael Luisi quickly rose to support special privileges for for-hire anglers, saying

“It was a year ago now that we convened here as a board and decided that mode splits would not be allowed…The consequences of that have been dire.”

He alleged that the decision led to a drop of somewhere between 60 and 80 percent in Maryland charter boat bookings, although he didn’t volunteer why the Board should attribute all of that drop to Amendment II’s 1-fish bag limit (previously, Maryland had adopted a special 2-bass bag limit for its for-hire fleet) instead of also considering the impact of six years of bad spawns, which have made it very difficult for anglers to find the 19- to 24-inch bass that fall within Maryland’s slot size limit in the waters of Chesapeake Bay.

Jason McNamee, a Rhode Island fisheries manager who has long been a fan of mode splits, asked whether Addendum III would have to include multiple mode split options, or whether it would be possible to merely include a “midrange” mode split that could later be modified by the Board.  He was told that, in order to be able to calculate the impact of such management measures, explicit options were needed.

Another Rhode Island representative, Eric Reid, the state’s legislative proxy, argued that the Board should consider special regulations favoring the for-hire fleet, because

“It’s not just about saving striped bass.  It’s about saving a lifestyle, tradition, and way of life.”

Of course, harpooning right whales was once a tradition and way of life in the northeast, too.  Sometimes, changing times demand that we leave traditions behind, and lifestyles have to change as well.  But the fishermen who fall back on the “traditions” argument, when all other arguments fail, are more interested in clinging to the past rather than adapting to the future, and many fisheries managers still choose to enable such attitudes.

Faced with such attitudes, Ms. Meserve was forced to make a motion to keep mode splits out of the draft Addendum III, which was seconded by Mr. Batsavage.  But on this occasion, the traditionalists prevailed, as the motion was defeated on a vote of four states—Massachusetts, Pennsylvania, Virginia, and North Carolina—in favor, nine states against, with New Hampshire, NOAA Fisheries, and the U.S. Fish and Wildlife Service electing to abstain.

That didn’t end the debate.

Ms. Meserve rose again, to note that the motion passed on December 16, which initiated the Addendum III process, only provided that

“Options should include, if needed, a range of overall reductions, considerations of rec vs comm contributions to the reductions, rec seasons and size changes taking into account regional variability of availability, and no harvest vs. no target closures,  [emphasis added]”

and did not call for changing the recreational bag limit.

After various ASMFC staff members assured her that even though the motion did not explicitly mention bag limits, it still potentially allowed their consideration, and that the motion was merely “a starting point” for Board discussion, which the Board had the “flexibility” to change, Ms. Meserve said

“That was not my understanding of the motion that I voted for [last December],”

but after a few more comments, the Board moved on to other topics.  The Board seemingly assumed that increasing the bag limit, at least for for-hire anglers—something that would seem contrary to the primary goal of rebuilding the stock—would be considered in Addendum III.

But Ms. Meserve was not to be deterred.  Later on in the meeting, she again raised the issue, arguing that if the Board intended to consider changes to bag/possession limits in Addendum III, there should be a vote to explicitly authorize such consideration.  Adam Nowalsky, who acts as New Jersey’s Legislative Proxy and has long been an advocate for the for-hire fleet, made the appropriate motion, which was seconded by the Governor’s Appointee from New York, Emerson Hasbrouck, another long-time defender of the for-hires’ interests.

Ms. Meserve announded her opposition to the motion, noting that the purpose of Addendum III is to conserve striped bass, not to liberalize management measures.  Mr. Batsavage agreed, noting that the motion was

“pretty far away for striped bass stock rebuilding,”

and that

“We’re setting us up to fail.”

Mr. Luisi argued that mode splits weren’t about liberalization, and suggested that any increase in bag limits might be offset by a change in the season—although whether he was talking about a change that only impacted for-hires, or whether he contemplated shortening the season for everyone, just so the for-hire fleet could kill more fish, was not completely clear.

Fortunately for the striped bass, the motion failed, by the narrowest possible margin, with seven jurisdictions—Rhode Island, New York, New Jersey, Delaware, Maryland, the District of Columbia, and the Potomac River Fisheries Commission—voting in favor, another seven—Maine, New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, and North Carolina—voting against, and the two federal agencies abstaining.

Unwilling to accept that defeat, Mr. Nowalsky then made a slightly modified motion, which would again have allowed the draft Addendum III to consider changes in bag limits, but only for the for-hire fleet.  But that motion also failed on an identical vote.

So Ms. Meserve—and the bass—ultimately prevailed on at least that one point.  Addendum III will leave bag limits unchanged.

Size limits

Changes to size limits, on the other hand, are very much in play in Addendum III.

Doug Grout, the Governor’s Appointee from New Hampshire, felt that the draft addendum should consider both slot limits and minimum sizes.  He felt that the slot limit should try to focus effort away from fish needed to rebuild the spawning stock biomass—basically, the 2011, 2015, and 2018 year classes, and perhaps what remained of some older year classes as well—and said that if the Board moved away from a slot and instead set a minimum size, that minimum should be somewhere between 36 and 40 inches.

While the proposal for a minimum size didn’t garner much attention—which was somewhat surprising, as a 36-inch minimum would allow harvest of the now-protected 2015s and 2011s, while a 40-inch minimum would immediately put the 2011s at risk—the possibility of adopting a slot that permitted anglers to keep fish smaller than 28 inches ignited debate.

Dr. Drew noted that the Plan Development Team would examine the impacts of such a slot.  She said that a preliminary analysis had found it would increase removals, but that public comments made by the public supported a smaller slot, and asked whether the Board wanted the Technical Committee to perform “due diligence” on its merits.

Still, the general Board sentiment was negative.

The first to voice opposition was New Jersey’s Cimino, who noted that the state regularly calculates the impact of taking bass less than 28 inches because of its “bonus fish” program, which allows the recreational harvest of 24- to 28-inch bass as a way of utilizing New Jersey’s commercial striped bass quota (New Jersey prohibits commercial striped bass fishing).  He said that

“the loss of spawning potential is pretty intense.”

While that impact on spawning potential has not inspired New Jersey to eliminate its “bonus” program, it did cause Mr. Cimino to oppose a smaller slot.  Ms. Meserve also opposed the smaller slot, observing that the ASMFC’s Striped Bass Advisory Panel, which seldom agrees on anything, was 100 percent opposed to taking bass less than 28 inches long.  Still, Mr. Grout thought that a smaller slot was worth looking into, arguing that after the past six years of poor recruitment in Maryland, a thorough analysis would find that such slot would reduce landings.

Mr. Cimino finally made a motion that such smaller slot not be included in the draft addendum.  In doing so, he made the somewhat ominous prediction that

“When we get past this benchmark, the whole idea of what striped bass management is, is going to change,”

although he made no effort to explain those remarks.

Ms. Meserve seconded his motion, noting that she was hesitant to support a size limit change, due to any such change complicating the Technical Committee’s efforts to predict future striped bass catch.  She also noted that changing size limits lead to compliance and enforcement issues.  Dr. McNamee also supported the motion, noting that he was uncomfortable focusing the fishery on “sub-mature fish.”

Mr. Cimino’s motion passed easily, on a vote of 13 in favor, with only New Hampshire voting against and the two federal agencies again abstaining.

With the vote completed, Mr. Grout opined that any proposals for a new slot limit should not consider slots narrower than three inches.  No one disagreed.

Ms. Meserve also raised the issue of including a standard method of measuring striped bass in the draft addendum.  She said that some states require anglers to pinch the tail, which provides the longest possible length, while some states don’t.  She noted that in Massachusetts, there is no legally required way to measure a bass, which allows some anglers to forcibly fan out the tail, creating the shortest possible measurement, so that a fish that might otherwise be deemed too large can arguably fall below the upper bound of the slot.  Again, no one argued against such a measure.

Recreational seasons

One might plausibly argue that the Board decided to initiate Addendum III, rather than adopt new management measures for 2025, primarily because the recreational seasons proposed by the Technical Committee, before the December 16 meeting, were seen as unfair by many states, and ignited controversy among anglers and the angling industry.

Mr. Grout, as a representative of New Hampshire, noted that his state had a very short striped bass season, and argued for some sort of equity that didn’t impose a disproportionate loss of access to the striped bass resource on some states, particularly those which have little to fish for other than striped bass.  Another New Hampshire representative, Dennis Abbott, the Legislative Proxy, noted that if his state’s striped bass fishery is closed for a significant time, it could dissuade people from fishing at all, and so from buying boats and fishing gear, because of the lack of alternative species.

Because the striped bass fishery occurs at different times in different states, there was general agreement that seasons should be imposed on a regional basis, and that no single state should comprise its own region.  Because coastwide regulatory consistency is important, Ms. Meserve argued that regions should be as large as possible, although she acknowledged that with seasons, a single coastwide measure wasn’t realistic.  

Different Board members made different suggestions as to what the regions might be.  Mr. Cimino said that New Jersey could live with being part of a Connecticut to North Carolina region, but regardless of the regional split, had to be in the same region as New York.  Martin Gary, New York’s chief marine fisheries manager, agreed, while adding that New York also had to be in the same region as Connecticut.  

As the discussion ended, the Board seemed to agree that the Plan Development Team should consider at least three regions:  Maine through Massachusetts, Rhode Island through New Jersey, and Delaware through North Carolina.  However, it’s possible that other regions will also be considered as the process evolves.

Commercial measures

While most of the discussions addressed recreational management measures, John Clark, a Delaware fisheries manager, proposed two additions to the draft addendum that impacted the commercial fishery.

One would require that commercial fishermen tag all striped bass caught either immediately upon landing or immediately upon returning to the dock or the shore, with the latter considered a safer option for a fisherman operating in rough seas.  Currently, some states don’t require tagging until the fish are sold, which Mr. Clark suggested makes it more likely that bass will be illegally disposed of.  No one contested adding such issue to the draft addendum.

Mr. Clark also suggested that the draft addendum include a reallocation of the commercial quota. 

Although all of the coastal states have a commercial quota, only six—Massachusetts, Rhode Island, New York, Delaware, Maryland, and Virginia—have viable commercial fisheries.  Four other states—Maine, New Hampshire, Connecticut, and New Jersey—have outlawed commercial striped bass fishing altogether.  North Carolina permits commercial fishing and has a reasonably large commercial quota, but lacks striped bass; while it once had a substantial commercial striped bass fishery, in recent years some combination of a depleted stock and warming waters led to the species all but abandoning the state’s coastal waters.

So Mr. Clark proposed a reallocation that would provide more fish to the states that are actively utilizing their commercial quotas.  But, once again, that would lead to removing more fish from the same population that the Board is trying to rebuild.  When it came to a vote, Mr. Clark’s proposal was decisively voted down, with only Delaware and Rhode Island voting in favor.

Maryland makes things a little strange

The purpose of Amendment III is to increase the likelihood that the striped bass stock will rebuild by 2029.  But some Board members seemed more interested in using it to promote their own agendas.

At the December 16 meeting, Mr. Luisi signaled that he was among the latter group, saying,

“As we have managed the fishery to reduce fishing mortality, we have continually added to the complexity of the regulations, that the states or the regions are having to deal with their recreational anglers and their public…

“I don’t support a continued effort to just add on to that complexity.  What I would like to do, or what I think the Addendum does, is it provides us an opportunity to implement the things that we have learned over time…

“Let’s learn from what we’ve experienced in the past, and let’s try to use some creative outlook into the future to establishing [sic] meaningful rules that apply during the times of the year.”

If that all sounds just a little cryptic, he made his intentions a little clearer at Tuesday’s meeting, when he noted that Maryland made eight different changes to its recreational regulations over the past ten years, and said that Addendum III provided an opportunity “to develop a new baseline.”  When he said that, he didn’t just mean any changes ushered in by the final version of Addendum III; instead, he was talking about making wholesale changes to Maryland’s recreational striped bass management program in addition to whatever changes Addendum III might introduce, and using Addendum III as a vehicle to get around Amendment 7’s prohibition on the use of conservation equivalency when the stock is overfished.

For the fact is that “complexity” isn’t a problem for most states.  From Maine through North Carolina, the rules governing the recreational fishery are pretty simple:  From January 1 through December 31 of each year, anglers may retain one striped bass per day, provided that such bass measures between 28 and 31 inches in length.  If an angler chooses to fish with bait, that angler must use a circle hook, unless the bait is being fished on an artificial lure, in which case using a traditional J-hook is OK.  Gaffs may not be used when landing a fish.

That’s it.  On the coast, from Maine to North Carolina, those are the only things that an angler usually needs to know, although some states do have closed seasons on all or some of their waters.  The basic rules that the ASMFC settled on for recreational fishing on the Chesapeake Bay are similar, except that the slot size limit is smaller, 19 to 24 inches.

The problem is that, over the years, Maryland decided that it needed to dig a big hole for itself.  Most of that digging took place in 2019 and 2020, after the adoption of Addendum VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass in 2019.  Addendum VI, among other things, set a recreational bag limit of one striped bass per day, with a 28- to 35-inch slot limit on the coast and an 18-inch minimum size in the Chesapeake Bay, and reduced commercial quotas by 18 percent.

Maryland could have kept things simple, adopting the 1-fish bag and 18-inch minimum size for its recreational fishery in the Chesapeake Bay.  But Maryland didn’t want to do that.  It only wanted to reduce its commercial quota by 1.8 percent, and shift the rest of the conservation burden onto the shoulders of its recreational fishery.  To accomplish that, Maryland invoked the ASMFC’s doctrine of conservation equivalency, which allowed it to adopt different management measures than those in Addendum VI, provided that such measures had the same conservation effect. 

So instead of the simple 1 fish bag and 18-inch minimum size, Maryland asked the Board’s permission to adopt one of four alternative proposals, which would create a complex web of recreational regulations that would supposedly achieve the required 18 percent reduction, while still allowing Maryland to avoid significantly reducing its commercial quota.  As described in the transcript of the Board’s February 2020 meeting,

“There are four options here, all of them include a spring trophy season, 35 inch minimum from May 1 to May 15, and then the summer/fall fishery is a 2-fish and 19-inch minimum, essentially status quo is my understanding, where only 1 fish can be greater than 28 inches.  Then in order to achieve the required reductions, the options provide season closures from January to April, also reducing the bag limit to 1-fish and 19 inches during August.  That applies to Options A through C, also, no harvest for charter captains and crew.

“There is an additional no-targeting provision to meet those required reductions during parts of the winter and summer closures, depending on which option you’re looking at.  The fourth option in this table is a little different, it’s a mode-specific option, whether it be 1-fish, 19 inches for the private and shore modes, and a 2-fish and 19-inches minimum with that 1-fish over 28 inches for the for-hire sector.”

Then Addendum II came along and set a 1-fish bag and 19- to 24-inch slot for the entire Bay, which might have simplified things if it wasn’t for the sentence

“States are required to maintain the same seasons that were in place in 2022.”

So Maryland is sitting at the bottom of a deep hole of its own making, with a tapestry of closed seasons.  At one time, it might have used conservation equivalency to help it get out, but Amendment 7 doesn’t allow CE to be used when the stock is overfished, so Mr. Luisi is trying to use Addendum III to escape the pit that he, himself, has created.

Mr. Grout asked the obvious question,

“Doesn’t that sound like conservation equivalency under a new name?”

but Ms. Franke opined that despite the language of Amendment 7, the Board could put such a provision into the draft addendum.

Quite a few Board members understood Maryland’s plight and expressed some sympathy, but all were aware of the need to complete the final version of Addendum III by October, and felt that the issue should be dealt with in a separate management action.

Mr. Luisi kept trying to include the issue in the first draft of the Addendum III.  He told the Board that they shouldn’t be worried about the matter slowing down the addendum.  He promised to remove the item from the draft if it threatened to delay approval.  And he argued that what he proposed wasn’t really conservation equivalency, claiming that conservation equivalency only applied to a state trying to meet a newly-imposed management measure, and not to a state trying to create a new management structure “equivalent to what we have.”

In order to move the meeting forward, Ms. Franke suggested that Maryland develop the proposal outside of the Addendum III process so that, at the May meeting, the Board could reconsider the issue and perhaps include it in the draft addendum at that time.  But she also warned that if the Board took that route, the draft addendum couldn’t be released for public comment until August, which would provide only another two months for final approval.

That is more-or-less the direction the Board chose to take, with a motion to postpone consideration of the issue passing on an 11-3 vote, with the federal agencies abstaining.

What does it all mean?

By the time Tuesday’s meeting was over, the Board had effectively provided the Plan Development Team with instructions to prepare a draft addendum that would do what the Board could have done on its own last December—develop measures to make it more likely that the stock would rebuild by 2029—but to do it one year too late to protect the 2018 year class from substantial levels of removals in 2025.

As a practical matter, fishing mortality through the first ten months of 2024 was low enough that, barring a very steep increase November and December, if the Technical Committee uses 2024 data as a proxy for what will happen between now and 2029, there is probably a 50 percent probability that the stock will rebuild without the need for any reductions at all.

If that is the case, there is no need for Addendum III, and the Board may decide to terminate the development process, perhaps as early as May.

On the other hand, if the 60 percent probability calculations show that a reduction is needed, and if the Board breaks from their traditional habits and chooses to shoot for that higher chance of success, some modest reductions may be called for, and the addendum might stay alive.

But even then, the Board could have a change of heart if the Maryland and Virginia juvenile abundance surveys show that a strong year class of young bass was produced in 2025, something that, given the colder winter we’re experiencing this year, may very well happen.

So, the debate over Addendum III may prove to be, as William Shakespeare wrote in Macbeth, “much sound and fury signifying nothing.” 

Or, even if the Technical Committee determines that no reductions are needed, Addendum III might be used as a vehicle to promote special interests, mode splits probably first among them.

Either way, unless new data alters the management landscape, it seems highly unlikely that Addendum III will make a significant difference in the long-term fortunes of the striped bass stock.

Once, the Management Board might have made such a difference, but it chose not to do so about eight weeks ago.

 

 

 

 

 

SOME ANGLERS ARE MORE EQUAL THAN OTHERS: SECTOR SEPARATION LOOMS IN THE MID-ATLANTIC

 

Those of us who can still recall our high school—and maybe even junior high school—English classes can probably remember reading George Orwell’s Animal Farm, and that novel’s oft-quoted line,

“All animals are equal, but some are more equal than others.”

It now appears that the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Bluefish and Summer Flounder, Scup, and Black Sea Bass management boards are considering extending that sort of "equality" to anglers in New England and the mid-Atlantic regions.

They expressed such intent in the Public Information/Scoping Document, Recreational Sector Separation and Data Collection Amendment, An Omnibus Amendment to the Summer Flounder, Scup, and Black Sea Bass and the Bluefish Fishery Management Plans, which advises that

“The Commission and Council will consider whether recreational sector separation could help tailor management to the varying preferences, data availability, and economic considerations of each component of the recreational fishery.  Currently, the private and for-hire recreational sectors are managed as a single unit and are held to a single, combined recreational harvest target.  Management measures are typically developed and adjusted for the recreational fishery as a whole.  However, the two sectors have different motivations, preferences, fishing behaviors, operational needs, and data reporting requirements.  Some recreational fishery participants have expressed an interest in recreational sector separation, which would entail managing the for-hire and private sectors of the recreational fishery separately.  This could potentially allow managers to better tailor management to the needs and preferences of each sector while allowing for improved utilization of the data provided by the for-hire sector.  Through this amendment, the Council and Commission intend to explore whether recreational sector separation is appropriate for these fisheries.”

Before looking at sector separation more closely, it might make sense to consider the roles of the shore, private boat, and for-hire fisheries with respect to the four managed species.

Using the most recent Marine Recreational Information Program data available, from the years 2021 through 2023, we find that the for-hire fleet is responsible for surprisingly few trips that primarily target any of the four species.  The for-hires’ proportion of trips taken runs from a high of 6.4%, in the case of black sea bass, to a low of 0.9% in the case of bluefish.  The for-hire fleet’s share of trips primarily targeting scup or summer flounder is, in both cases, about 2.3%.

Although some of the MRIP data used to derive such percentages includes a very substantial degree of uncertainty, the percentages are very consistent from year to year, so are probably fairly accurate.  The greatest variation is found in the scup estimates, where the percentage of for-hire trips ranges from a low of 1.3% to a high of 3.3%, but even there, it is clear that anglers on for-hire vessels comprise a very small part of the overall recreational fishery.

On the other hand, those for-hire anglers can account for a disproportionately large proportion of the catch.  That is particularly noticeable in the bluefish fishery where, despite accounting for only 0.9% of all direcrted recreational trips, the for-hire fleet accounts for 5.3% of the recreational bluefish landings; scup also sees a significant disparity, with the fleet accounting for 2.3% of the trips, but 9.2% of the entire recreational harvest.

And yet, the for-hires seem to want more.  As noted by Eric Burnley, a long-time outdoor writer who also sits on the Summer Flounder, Scup, and Black Sea Bass Advisory Panel,

“Recreational fishermen have a serious problem brewing within our ranks.  There is a small segment of the for-hire recreational fishery that would like to steal fish from the rest of us because they believe having more fish added to their bag limit would put more people on their boats.  They did this with bluefish by dividing the bag limits so that private boats and those of us who fish from shore may only keep three blues per day while charter and head boats may keep five blues per person.”

Mr. Burnley lives in Delaware, a state that lacks a significant scup fishery, but if he fished up here in the northeast, he would also know that scup anglers on for-hire boats also get special privileges denied to the other 97% of the scup fishing community, in the form of a so-called “bonus season” that runs for 60 days and allows for-hire anglers in states between New York and Massachusetts to retain 40 scup per day, as opposed to the 30 scup limit that applies to everyone else.

Given such special privileges, it’s not surprising that for-hire anglers account for such a disproportionate share of the recreational scup and bluefish harvests.  The last thing we need is to see the same thing happen in the summer flounder and black sea bass fisheries.  Because in the end, fisheries management is a zero-sum game.  If you give someone more fish, either through an increased allocation or more liberal regulations, it means that someone else is going to have to get less.

And the public shouldn’t have to accept a lesser share of a public resource just because a portion of that resource has been taken away from them in order to subsidize a handful of private businesses.

Using scup as an example, there can be a very big disparity between the number of fish retained on each trip by anglers belonging to the various sectors.  For the period 2021 through 2023, shore-based anglers kept an average of 2.5 scup per trip, while private boat anglers retained an average of 9.7.  However, the per-trip retention rate for the for-hire fleet was far higher, with party and charter boat anglers keeping an average of 21.6 and 28.7 scup per trip, respectively (it should be noted that, because not all scup are caught on trips primarily targeting them, the per-trip numbers for all four sub-sectors of the recreational fishery, which are based on directed scup trips, are skewed to the high side; nevertheless, there would still be a  big difference between the per-trip harvest of the private versus the for-hire sector even if fish caught on non-directed trips could be filtered out).

That’s all fine if overall recreational landings remain low enough that recreational management measures may remain unchanged.  However, should it be necessary to reduce recreational landings, no distinction is made between the private and for-hire anglers; even if for-hire anglers made a proportionately higher contribution to the overage, harvesting more fish per angler than other recreational fishermen, they are not required to make the same proportionately higher contribution to any resulting reduction.  Thus, one of the scenarios considered in the recently-released scoping document, an option that

“would focus only on processes for setting different management measures by recreational sector, without separate allocations of catch or harvest,”

is inherently inequitable, to the extent that it does not link more liberal management measures for the privileged for-hire sector with more restrictive management measures for that same sector, compared to less-privileged anglers, should an overage occur.

Anyone who attends fisheries meetings of any kind, but perhaps particularly including advisory panel meetings, knows that the for hire-fleet regularly seeks smaller size limits, bigger bag limits, and the longest possible seasons.  

It could, in theory, get all of those things under a sector separation protocol, that merely adopts different management measures for for-hire anglers, but allows them to fish on the same allocation as other recreational fishermen.  In such case, regulations for shore-based and private-boat anglers would have to be made more restrictive to avoid exceeding whatever limitations on catch and/or landings might apply.

Typically, fishery managers employ a combination of three tools—bag limits, size limits, and seasons—to manage a recreational fishery.  It is thus easy to argue that if managers truly believe that the for-hire fleet needs a larger bag limit, then equity requires that such managers impose an offsetting size limit or season to create what the ASMFC might deem “conservation equivalent” regulations that maintain overall parity between for-hire and shore-based and private boat anglers.

It is highly unlikely that the for-hire sector would be pleased with whatever conservation equivalent regulations might result from such approach.

Arguably, the other option proposed in the scoping document, separate allocations for each sector, would provide a more level playing field than would a grant of special and exclusive privileges to for-hire anglers.  As the document explains,

“There are several ways in which separate allocations could be created for the for-hire and private recreational sectors.  Separate allocations would ultimately result in managing these components of the fishery differently, using differing management measures.  Potential allocations could be made on the basis of catch (includes both harvest and dead discards; e.g., separate annual catch limits) or landings (harvest only; e.g., separate recreational harvest limits).  Options to be considered may include separate annual catch limit (ACL) allocations, separate recreational sub-ACL allocations, or separate recreational harvest limits (RHLs). These options may require development of corresponding accountability measures.”

 

The Magnuson-Stevens Fishery Conservation and Management Act recognizes three separate sectors, defining not only “recreational fishing” and “commercial fishing,” but also “charter fishing,” which is defined as

“fishing from a vessel carrying a passenger for hire…who is engaged in recreational fishing.”

Given that definition, if managers insist on imposing sector separation on the recreational fishery, it would make the most sense to completely separate the sectors, and provide separate Annual Catch Limits, along with associated Accountability Measures, for commercial fishermen, recreational fishermen, and charter fishermen, so that an overage by any one of the sectors would be addressed by sector-specific Accountability Measures. 

Thus, if the charter fishing sector successfully argued for overly liberal regulations that led to that sector catching too many fish and exceeding its Annual Catch Limit, the shore-based and private boat anglers would not have to give up fish to feed the for-hires’ hunger; instead, only the charter fishing sector would be held accountable—and, of course, should the recreational sector catch enough fish to trigger accountability measures, which often occurs, those accountability measures would not affect the for-hire fleet.

Of course, allocating fish between the recreational and charter fishing sectors would be a contentious process, as allocation debates are always among the most rancorous of any in fisheries management.  Common sense would just base the allocation on recent—say, the past five years'—percentages of the overall angling catch taken by the recreational and charter fishing sectors, but it’s not hard to predict that the for-hires would want a bigger slice of the pie, and argue that the allocations should consider an earlier time when there were more for-hire boats in operation, those boats drew more passengers, and the charter fishing sector’s share would thus be higher.

But a new allocation—all fisheries measures, really—should be looking forward and not backwards, and consider what the fishery looks like today, and will look like in the future, and not what it looked like thirty or forty years ago.  And by those standards, the allocations allotted to the charter fishing sector would be very small, as appropriate for a sector that accounts for such a tiny proportion of overall trips, and so generates a very, very small percentage of the social and economic benefits gleaned from the angling industry.

Yet even a separate allocation doesn’t solve all the problems created by sector separation. 

Consider, for example, the black sea bass fishery off New Jersey and the South Shore of Long Island.  For the most part, the ocean floor off that coast is composed of some combination of mud, sand, and gravel, with very few natural rocky formations.  Since black sea bass are a structure-oriented fish, most of the fishing takes place on artificial reefs established to enhance recreational fishing or on the remains of ships, barges, and aircraft that were lost, due to war or mishap, somewhere off the coast.

Although some fish more on and off such man-made structure throughout the season, for the most part, black sea bass—and, in particular, legal-sized black sea bass—are far more abundant on the first few days of a newly-opened season than they are later on in the year, as recreational fishing pressure quickly cleans the larger fish off the wrecks and reefs, leaving behind mostly undersized sea bass with just a handful of individuals large enough for anglers to retain.

Regulations that opened a for-hire season before the season for private-boat anglers began could quickly strip the structure of most of the larger black sea bass, leaving little for the great majority of recreational fishermen to enjoy.  If for-hire anglers were gifted with a higher bag limit than that allowed the rest of the angling community, it wouldn’t take long before a few party boats, with forty, fifty, or more anglers on board, picked a wreck clean of most of its legal fish, leaving little more than undersized sea bass and a small handful of larger individuals for everyone else.

Considering how likely such outcomes would be under any sort of sector separation scheme, and the very small proportion of recreational trips that might benefit if such a scheme was adopted, any upside sector separation might provide would seem to be far outweighed by its downsides. 

The scoping document tries to justify adopting different management measures for for-hire and shore-based/private boat anglers by claiming that “the two sectors have different motivations, preferences, fishing behaviors, operational needs, and data reporting requirements,” but for at least the three demersal species—summer flounder, scup, and black sea bass—those assertions are dubious at best, for all three are what anglers deem “meat fish,” species that are primarily pursued because of their food value, are usually retained when caught, and do not support meaningful catch-and-release fisheries.

In the case of all three species, anglers who pursue them, whether from shore, from private boats, or from for-hire vessels, go out with the intention to kill their catch and bring it home for personal consumption or, perhaps, to share with family and friends.  All anglers would prefer the smallest minimum size, largest bag limit, and longest season that the science, regulators, and common sense might provide.  

In motivation, preferences, and fishing behavior, there is little separating them, regardless of the platform they may choose, or be forced by circumstances, to fish from.  (I will concede that the situation is different in the case of bluefish; during the same 2021-2023 period used to determine effort and landings for the various recreational sectors, shore-based and private boat anglers released far more bluefish than they landed, a smaller proportion was released by anglers on charter boats, while party boat anglers kept significantly more fish than they released.)

I’m not sure how the “operational needs” of for-hire anglers differs from those of the great majority of recreational fishermen, although I suspect many might travel for longer distances to get to the dock, and once there, they only need to find a seat and a place at the rail, and not need to maintain and operate a vessel like private boat anglers do.  

As far as “data reporting requirements” go, while for-hire operators often point to their mandatory vessel trip reports as providing better data than the estimates provided by MRIP, we must always remember the acronym “GIGO”—Garbage In, Garbage Out—coined in an earlier era of computer use.  While we can hope that the for-hires’ trip reports are accurate, we know that, in the past, for-hire captains have seemed oblivious—or, perhaps, were willfully ignorant—of the fact that their customers were keeping fish far in excess of the legal limit, with one New Jersey party boat operator reportedly commenting that he

“did see fishermen keeping [out-of-season] black sea bass, but said ‘I didn’t think it was that many [at least 819 illegal fish on a single trip].  And I’m not getting paid by the state of New Jersey to take fish out of people’s buckets.”

In another incident,

“Marine enforcement officers…saw what they estimated was hundreds of pounds of fish being thrown overboard from a Montauk party boat…

“As they continued the inspection of the starboard side, there was a massive fish kill on the port side, with dead sea bass floating all over the place…anglers who had [supposedly] not caught anything during the trip [were] filing off the boat…

“When the dust cleared…there were a dozen coolers left with no owners, which held more than 1,000 sea bass [although the bag limit at that time was just three].”

With for-hire captains casting a blind eye on such goings-on, one must wonder whether all of the legally caught fish, not to mention any of the illegal ones, make it onto the vessel trip reports that are supposedly accurate enough to justify special rules.

Yet despite all of the arguments that can be made against sector separation, there is a very good chance that it will be adopted in some form, and the reason is simple.

In George Orwell’s novel, of the assemblage of rebellious livestock that established “Animal Farm,” all but a few were subordinated to a handful of pigs who seized control of the farm and decided its fate.  A similar situation exists at the Mid-Atlantic Council where, out of six seats held by representatives of the recreational sector, five are held by members and/or former members of the for-hire fishing industry; on most issues, such for-hire representatives tend to be supported by the commercial representatives, who see them as fellow watermen in the business of catching fish for their customers. 

Thus, there are few, if any, people sitting around the table to advocate for and represent the interests of the shore-based and private boat anglers responsible for well over 90% of all recreational trips taken in pursuit of Council-managed species; while state fisheries managers try to represent all of their constituents fairly, private anglers’ lack of representation is repeatedly evidenced by decisions that favor the for-hire sector.

Yet there is still reason to hope that sector separation can yet be defeated, and that all anglers might still be allowed a level playing field on which to pursue their preferred avocation.  The Mid-Atlantic Fishery Management Council will be accepting comments on the Scoping Document until 11:59 p.m. on March 20.  Anglers can get a copy of the Scoping Document merely by clicking on this paragraph, and then respond by commenting online, by email, or by regular mail, to the addresses provided in the document.

While there is some momentum behind sector separation, the matter is still at the scoping stage, where the issues are still being defined and stakeholder comment still has a real chance to influence the outcome.

I encourage everyone to make their views known.

Unless, of course, you’re completely content with some anglers being more equal than others, and understand that the “others” means you.