MENHADEN--A NEW DAY IN CHESAPEAKE BAY?

Conservation advocates were appalled last month when they learned that the Commonwealth of Virginia had decided to appeal actions taken by the Atlantic States Marine Fisheries Commission’s Atlantic Menhaden Management Board last November, when it adopted Amendment 3 to the menhaden management plan and established catch limits for the next two fishing seasons.

Virginia’s appeal was surprising, because the state came out the clear winner at the November meeting. 

It successfully fought back the effort to establish interim ecological reference points, which would have required fishery managers to take menhaden’s role as a forage fish into account when setting catch limits.  

Such interim ecological reference points, if adopted, could have potentially led to a substantial reduction in the amount of menhaden landed by Virginia, which dominates the menhaden fishery.  Such interim reference points were broadly supported by the public comments received on the issue, and still, Virginia prevailed.  That, in itself, was a major win for the state.

And Virginia came away from the meeting with its menhaden quota effectively intact.  

Although public comment strongly supported no increase in the overall menhaden harvest, the Management Board ultimately decided to increase 2018 and 2019 landings by 8%, in order to provide a number of states with some landings—at least 0.5% of the overall harvest—while not causing Virginia any harm.  As it turns out, Virginia did have its landing reduced by 0.43%--insignificant given that Virginia will still be allocated 78.66% of the quota, and that the other 15 jurisdictions will all have to share the 21% that remains—but losing that iota of quota still caused the state to complain that it was treated unfairly, and that the increase in landings should have been hire.

Virginia probably did technically lose on the issue of capping menhaden harvest in Chesapeake Bay, as the Management Board substantially decreased the so-called Bay Cap.  

However, since fishermen weren’t catching the entire Bay quota anyway, and the cap was merely lowered to reflect annual landings, such loss was far more theoretical than real.

Even so, Virginia felt aggrieved, and appealed the Management Board’s actions to ASMFC’s Policy Board.  

It argued that the reallocation of landings, which caused Virginia to lose 0.43% of overall landings, was not consistent with the fishery management plan, because it was not biologically, socially and economically sound.  Such claim was rejected by ASMFC, which noted, in part, that

“Given the [fishery management plan] goal of equitable allocation, one could argue that allocating nearly 80% of [total allowable catch] to one jurisdiction within a 15 jurisdiction management unit is not an equitable distribution to the primary user groups…The Board had significant deliberations on the issue of what is equitable allocation.  By choosing the fixed minimum allocation method, the Board was able to address the needs of the different stakeholders, taking into account the needs of the directed fishery, while having a minimal negative impact relative to the 2017 quotas.”

So it seemed that Virginia wasn’t going to gain any ground there.

Virginia also claimed that the allocation method adopted by the Management Board was “radical” and “unorthodox” as it failed to adequately consider historical landings, although it noted that an further  increase in the annual catch limit, from 216,000 to 220,000 metric tons, would be an alternate way to address the state’s concerns.

However, ASMFC didn’t find that a valid point either.  It noted that conditions in the fishery change, and managers should be allowed to adjust management approaches to allow for such changes.  It noted that the Management Board considered a 220,000 metric ton quota, and decisively voted it down.  And it summed up its decision on the point by observing,

“These sorts of decisions highlight the nature of cooperative interstate fisheries management—to seek to balance the different needs and values of all involved states, not the one or the few.  These difficult decisions are sometimes necessary in service to the management goals of the [fishery management plan.]”

So Virginia lost that argument, too.

Then, Virginia alleged that, by giving each state a minimum allocation of menhaden and setting aside a pool of fish equal to 1% of the overall landings for “episodic events” in the northeast, reducing Virginia’s allocation by less than one-half of one percent was an “unforeseen circumstance” that justified ASMFC taking action to make Virginia whole.

However, ASMFC noted that the allocations, and the episodic events set-aside, where debated and voted on, and so were hardly unforeseen.  Moreover, because some states announced that they would not be using their minimum allocation in 2018, allowing such fish to go back into the common pool, Virginia would actually end up with 4 million pounds more menhaden in 2018 than it was allocated in 2018, making it hard to argue that any tangible harm had been done.

That was three strikes against Virginia, but the state wasn't out of the game.

It had appealed on a fourth ground, arguing that the reduction in the cap on harvest in Chesapeake Bay wasn’t based on any reliable technical information, and thus was invalid.  

On that point, they found a bit of sympathy from ASMFC.  

While ASMFC noted that

“The Bay Cap was set at the average landings in the Bay from 2012-2016 (rounded up); therefore, it was not arbitrarily lowered nor was it expected to significantly impact the prosecution of the fishery,”

it agreed to consider the matter, and suggested an approach that might address Virginia’s concerns.

Chesapeake Bay anglers, who believe that the harvest of menhaden within the Bay adversely impacted various predators, including striped bass, were not pleased by that decision.  The broader conservation community also had concerns.

Thus, everyone was surprised and delighted when they learned, on the eve of the meeting day, that Virginia had entirely withdrawn its appeal.

Delight wore off in about ten minutes, at which point folks started asking “Why did they do it and what does it mean?”

And right now, nobody knows for sure.  Quite a few folks are seeing something ominous in the action. 

Menhaden are the only saltwater fish managed by the Virginia General Assembly, rather than by the state’s Marine Resources Commission, and so far, the General Assembly has not acted in response to ASMFC’s actions.  

Unless it passes legislation to reduce the Bay Cap, Virginia will not be in compliance with ASMFC’s menhaden management plan, which could result in a formal non-compliance finding to be forwarded to the Secretary of Commerce.  If that occurs, the Secretary of Commerce could either impose a moratorium on menhaden harvest in Virginia until the General Assembly acts, or find that the Bay Cap isn’t necessary to the conservation of the menhaden resource, and override anysuch non-compliance finding, as it did last summer when New Jersey went out ofcompliance with ASMFC’s summer flounder management plan.

Some people believe that is Virginia’s strategy, and that it hopes to both regain its lost 0.43% share of the harvest and negate the reduction in the Bay Cap at the secretarial level.  They can find support in the closing line of Virginia’s appeal letter, which says

“As required by the [Interstate Fishery Management Policy] Board’s Appeals Process pursuant to which this appeal is taken, Virginia commits to comply with the [Interstate Fishery Management Policy] Board’s decision in this matter, subject to its right to take further action beyond the ASMFC process to seek relief.  [emphasis added]”

And that may well be Virginia’s plan.  There is certainly substantial political pressure being applied by the menhaden industry and allied organizations.  On the other hand, Virginia would have had nothing to lose in making its case before ASMFC, and arguably would have put itself in a better place in any subsequent proceeding by doing so, as it could then argue that it did all it could, but exhausted every available remedy before relying on secretarial action.

The same principle would apply should Virginia elect to sue ASMFC over its decision.  Generally, a plaintiff is required to exhaust all administrative remedies before seeking judicial review of an agency decision, so abandoning its appeal to ASMFC’s policy board would thus create an obstacle to Virginia obtaining judicial relief.  

As a practical matter, prevailing in a lawsuit against ASMFC would probably be very difficult, as a decision in the matter of New York v. Atlantic States Marine Fisheries Commission, decided by the Second Circuit in 2010, found that ASMFC is neither a federal agency nor a quasi-agency, and that its decisions are not subject to review under the federal Administrative Procedures Act.  

Still, Virginia sits within the Fourth Circuit, where Second Circuit decisions are merely persuasive, and not binding, authority, so there is a possibility that a suit brought there could lead to a different result.  It also should be noted that if the suit was brought not by Virginia, but by the Omega Protein Corporation, which is the nation’s largest menhaden harvester, Virginia’s failure to exhaust all administrative remedies probably would not bar legal action, although New York v. ASMFC would still stand in its way.

It should also be noted that Virginia elected a new governor in November, and that the appeal was filed by the previous administration.  The withdrawal could merely signal a change in administration policy, and a hope that the General Assembly will ultimately adopt the new cap for the Bay.

Even if the General Assembly doesn’t act, and the Secretary of Commerce finds Virginia out of compliance, it is very possible that there will be no significant impact on Virginia's menhaden fishery this year.  

Under the Atlantic Coastal Fisheries Cooperative Management Act, which governs ASMFC and the enforcement of its management actions, should the Secretary of Commerce find a state out of compliance, he would have up to six months to impose a moratorium on the relevant fishery. 

Thus, if the General Assembly fails to comply with the menhaden management plan, and no special meetings or conference calls are scheduled, ASMFC wouldn’t find Virginia out of compliance until it's regular May meeting.  It would then have a week to notify the Secretary of Commerce of its findings, and the Secretary would then have an additional 30 days to conduct his own review.  That would bring the proceedings well into June, at which point the Secretary could, if he desired, impose a moratorium beginning six months later—mid-December.

By then, the moratorium would have no immediate impact.  The menhaden fishery doesn't hit its stride until May, providing the General Assembly with plenty of time to act even after a moratorium was imposed.  While such timing could not be guaranteed, it would allow business as usual to continue until all parties had a chance to fully understand what occurred, and also understand what still needs to be done.

So did a new day just dawn for menhaden in Chesapeake Bay?

Probably not.  Even the reduced Bay Cap reflects the status quo, and Virginia’s overall landings have not been reduced at all.

Yet, if the withdrawn appeal really does reflect a new administration’s policy, and not some less benign plan, it may well presage a new and better future not only for Virginia’s menhaden, but for all of the state’s living marine resources.

So for now, at least, there is reason for hope.

IT'S TIME TO THINK OUTSIDE THE BOX ON BLACK SEA BASS

I’m starting to think that managing the black sea bass fishery has become a lot harder than it has to be, at least in the Mid-Atlantic and up in New England.

Federal fishery managers are in a good position.  They’ve successfully rebuilt the stock which, although down a bit from recent highs, is still hovering somewhere near 200% of target abundance.  A recent benchmark stock assessment has made some real breakthroughs in black sea bass science, too, so managers have a solid foundation on which to base any management decisions.

And yet, they’re having some problems getting effective regulations on line.

Black sea bass abundance, particularly when compared to a declining stock of summer flounder, has caused a lot of effort to shift into the fishery, resulting in anglers regularly exceeding their annual catch limit, at least in the northern states where there seems to be a lot more black sea bass available to fishermen than there were a decade ago. 

So far, it appears that recreational fishermen did finally keep harvest below their catch limit in 2017, although landings data for the last two months of that year aren’t available yet, and an unexpected spike in those figures could still push angler harvest above the recreational harvest limit. 

That’s the good news.  The bad news is that lower landings in some states, particularly in New York, appear to be driven by substantially reduced fishing effort.  Effort is often the most difficult factor to predict from year to year, as it can shift in response to weather, to the availability to other species and, it often appears, to the error inherent in past effort estimates.  Thus, it is difficult to say whether the 2017 landings estimate is providing accurate guidance as to angler behavior in the upcoming season.

More bad news comes in the form of widespread noncompliance in the black sea bass fishery, particularly in the New York and New Jersey party boat fisheries.  A lot of anglers were shocked back in 2012, when a well-known New Jersey party boat returned to port with over 800 illegal black sea bass on board.  But anglers reactions to that bit of poaching were muted compared to their reactions late last summer, when many patrons aboard two Montauk, New York vessels were busted for very significant black sea bass violations that occurred just a week or two apart—and the enforcement folks acknowledged that even more poachers were probably on board, but couldn’t be cited because they left their fish-filled coolers on the boats and hurried off with no contraband fish in their possession.

I spoke with folks who keep their boats in Montauk and/or are otherwise familiar with the fishery, and none of them believe that the anglers who were cited for poaching black sea bass were atypical; their opinion is that such illegal harvest goes occurs on an everyday basis.  Unfortunately, it’s hard to disagree.  Although the quality of Montauk’s fishery makes it far easier to poach large quantities of black sea bass out there, the comments of anglers from other areas make it appear that a lot of poaching happens in my local waters, too.

Such reports have, unfortunately, led many private-boat anglers to turn their backs on ethical angling and become poachers themselves.  There are quite a few who fish out of Fire Island Inlet, NY—the same inlet that I normally use—who start fishing for black sea bass on the Fire Island [Artificial] Reef a week or so before the season opens, feeling that if they don’t take home a few fish before opening day, the fish will be stripped off the reef by the party boat fleet—which begins sea bass fishing at midnight on the opener to give its customers the best shot at the fish—soon after the season starts.

Now, the party boat fleet is urging the Mid-Atlantic Fishery Management Council to allow it to prosecute a deep-water fishery in January and February, when private-boat anglers have no realistic shot at the fish, and even most party and charter boats remain tied up at the dock.  It is a time when the National Marine Fisheries Service conducts no recreational catch surveys north of North Carolina, and when enforcement activity is at a seasonal low around the docks.

Couple the fishery’s historical loose compliance with low levels of enforcement and little effective data collection, and you end up with the makings of a very bad idea, particularly when you realize that the fish caught during such typically very productive winter season—at least to the extent that they can be estimated—will be deducted from the fish available to the vast majority of the recreational fishermen and charter and party boats, all of which lack the desire and often the capability to venture 60 or more miles out onto a cold and often hostile winter sea.

The states are already aware of the many issues that a January/February season could cause.  Both the Mid-Atlantic Council and the Atlantic States Marine Fisheries Commission voted to allow a February season this year.  However, only two states, Virginia and North Carolina, decided to take advantage of the opportunity, and neither are big players in the black sea bass fishery.  According to the Council

“The seven states not participating in the February fishery provided a variety of reasons as to why they decided not to participate.  The reasons provided were as follows, in no particular order:

·         Implications of a declining [Recreational Harvest Limit] and unknown coastal payback requirements

·         Limited number of vessels would realize the benefit of the fishery

·         Limited interest from fishermen/vessels in participating in the fishery

·         Concerns about cutting the remaining recreational season to account for harvest

o   Loss of days would impact all fishermen

o   Regulations in rest of fishery are already constraining

·         Inability to accurately and cost-effectively monitor the catch

o   Implications, particularly if high harvest, for both participating and non-participating states in future years

·         General lack of support for fishery and the process to implement the fishery

·         Allocation to wave 1 fishery impacts all states through reduction in [Recreational Harvest Limit]

·         Discard mortality of non-target species

·         Greater inequities and disparities in management measures among the states”

The Council is scheduled to again consider the January/February black sea bass fishery at its meeting on February 14.  Given all of the recognized problems, the Council would do well not to move forward with the matter, and instead to stop and take a holistic look at the black sea bass fishery, to see whether existing paradigms, based on traditional approaches to managing the fishery, should be abandoned in favor of management tools that have be adopted elsewhere on the coast, in response to difficult management issues, might be profitably applied to the more challenging aspects of black sea bass management.

One of the more challenging aspects of black sea bass management, which would be made even more difficult should a January/February season be reopened, is the conflict between private-boat anglers and the for-hire fleet, and in particular, the party boat fishery.

Black sea bass are a valued food fish.  Just about any angler who goes out fishing for them does so with the expectation, or at least the hope, of bringing some home.  Representatives of the for-hire fleet have argued that they need liberal black sea bass bag limits in order to attract customers.  The Cape Cod Times, for example, reported that

“[One charter boat operator] has seen 50 percent of his business eroded this year as charter boat customers—who would normally spend thousands apiece to travel from New York, New Jersey, Connecticut and as far away as South Carolina and Florida to board his boat and catch and freeze dozens of sea bass a day—informed him it wasn’t worth the trip if they could only catch a handful.”

While private boat operators also want a bag limit large enough to make a black sea bass trip worthwhile, their proximity to the coast, and relatively low per-trip cost, leaves them at least somewhat satisfied with bag limits that are far too small for the for-hire fleet.  In their efforts to balance the needs and desires of the two sectors, state managers are coming up with regulatory measures that make no one happy.

New Jersey tried to strike such a balance by setting bag limits of 10 fish between May 26 and June 18, and 15 between October 22 and December 31, in order to provide the for-hire fleet with enough black sea bass to keep customers interested.  However, the tradeoff was to impose a bag limit of just 2 fish during the traditional July 1 through August 31 summer vacation season, when most private boat owners and their families were on the water, and to close the black sea bass fishery completely for twelve days in June and from September 1 through October 21; the latter closure came back to haunt the state when it decided to shorten its summer flounder season to just four days in September, leaving anglers with little to fish for throughout the rest of the month.

New York did something similar, although far less extreme, limiting anglers to a 3-fish bag limit between June 27 and August 31, when large numbers of private-boat fishermen were on the water, then increasing the bag to 8 fish in September and October and, finally, to 10 black sea bass in November and December.

Such compromise regulations make no one happy.  Opening a January/February season, which would result in more black sea bass being landed by a relative handful of for-hire boats, and result in even more restrictive regulations being placed on private-boat anglers and the spring/summer/fall for-hire fishery, would make things even worse, and certainly bring claims of “unfairness” from private-boat anglers, who would not be able to participate in the winter fishery.

The answer to that conundrum might be found in the Gulf of Mexico red snapper fishery, which once faced a similar problem (although in that case, the equities were reversed; private boats fishing in state waters caught so many fish when federal waters were closed that the federally-permitted for-hire fishery was in danger of being shut out).  It’s called “sector separation,” and is exactly what it sounds like:  Separate annual catch limits, and perhaps different seasons and bag limits, are established for the private-boat and for-hire fisheries, to best suit each sector’s needs.

Under such an arrangement, black sea bass caught in a January/February fishery, or high bag limits late in the season, when most private boats are already out of the water, wouldn’t impact the private-boat anglers at all.  Instead, the private-boat fishermen might opt for a somewhat larger bag limit—say, five or six black sea bass, instead of two or three—and a shorter season that, for the sake of example, only runs from the end of June through the end of September.  The for hire-fleet, on the other hand, might be willing to trade a January/February season and a ten- or fifteen-fish bag limit for midseason closures, and perhaps a very small bag limit during the warmer months.

Both sectors could seek the management measures most important to them, without having a negative impact on other participants in the fishery.

The ultimate extension of such an approach would be to create individual fishing quotas for the for-hire fleet.  Such an approach has already been successfully tried in many commercial fisheries, including Gulf red snapper.  Under such a system, each vessel would be given a share of the overall for-hire catch limit, which share would be based on the number of black sea bass that such vessel had reported on its vessel trip reports over the past five or so years. 

While the for-hire fleet would still have to abide by established size limits, individual fishing quotas would eliminate the need for bag limits or seasons; instead, each vessel would be able to make its own business decision as to when and how quickly it would harvest its quota.  

If one boat decided that it wanted to run winter trips and let customers fill up their coolers, it could, without affecting the rest of the fleet—although once its customers caught up all of the boat’s quota, it wouldn’t be able to land any more black sea bass for the rest of the year, unless it purchased or leased quota from someone else.  

Similarly, if another boat had a big summer business, but rarely fished far offshore, it could offer its customers all of its quota during the most popular vacation months, and lease any leftover quota to one of the boats that fished during the fall.

Such individual quotas would also do away with the poaching problem that currently plagues some members of the for-hire fleet.  Beginning on March 12, for-hire vessels fishing for black sea bass and some other species will have to report their catch electronically.  By requiring black sea bass landings to be so reported before the boat gets back to shore, and by requiring each vessel to notify management authorities when it will be beginning and returning from each trip—measures already imposed on the commercial sector in many fisheries—enforcement personnel would have a relatively simple way to ground-truth the accuracy of landings reports, and sanction those who filed false information. 

At that point, should a vessel allow a customer to harvest 96 sea bass on a single trip, as a Montauk boat infamously did last August, it would no longer be a criminal matter; the fish would merely be taken off the boat’s quota and, as a result, the boat would have to end its black sea bass season a little bit earlier that year.

Once again, each vessel could make a business decision based on what it felt was best, given its clientele.

Of course, there will always be those who try to beat the system by filleting or otherwise mutilating fish to get around size limits and other regulations.  That could easily be prevented by requiring black sea bass to be landed with the head and all fins (including the tail) still attached to the body.  Such regulations have already been imposed by other regional fishery management councils, and have been found effective; they probably should be adopted in any situation where there are problems with anglers, whether on private or for-hire vessels, filleting undersized fish at sea.

In the end, black sea bass has to be deemed a fishery management success story.  But, in some ways, coping with such a success can be as challenging as rebuilding an overfished stock. 

Yet by thinking outside the box, and using management approaches that have worked in other places and in other fisheries, there is an opportunity to create a sustainable fishery that works for everyone involved.

CREATING A CRISIS FOR GULF RED SNAPPER

In 2017, at the behest of some federal legislators and angling-related organizations, the Department of Commerce (Commerce) reopened the private-boat recreational red snapper season in the Gulf of Mexico, even though agency officials knew that such action would lead to significant overfishing and delay the recovery of the red snapper stock.

Representatives of the recreational fishing community had been very critical of the original federal season, which was just three days long to offset the impacts of far longer seasons in state waters, where managers expected 81% of the snapper to be caught. Such recreational spokesmen hailed the reopening.

The comments of Jeff Angers, president of the Center for Sportfishing Policy, were typical. He said, “The federal fishery management system is failing anglers on many levels, and the red snapper is the ‘poster fish’ of the quagmire. The temporary rule directly addresses this problem, giving millions of recreational anglers in the Gulf of Mexico an opportunity to enjoy America’s natural resources and giving the Gulf economy a much-needed shot in the arm.”

Yet among all the exultation, seemingly cautious voices looked beyond the immediate benefits of the reopening, and asked how it would impact the fishery’s future. The Coastal Conservation Association (CCA), for example, tempered its initial, celebratory “We beat the feds!” tone with something far more pensive, saying,

“The announcement today of action to extend the Gulf of Mexico recreational red snapper season is a welcome boon to anglers who have been painted into a corner by a federal fisheries management system that does not understand us, and would often just rather ignore us…But with this action, we are also truly launching into the void in the future…There are concerns that by NOAA Fisheries’ own peculiar methods of accounting, recreational anglers may already be over their quota this year in just the three days we were allowed to fish before this extension. How far over our quota will NOAA say we went over after an additional 39 weekend days? What will happen when NOAA’s regulations shut down the red snapper fishery until anglers ‘pay back’ this overage? How many years might it be before we can fish for red snapper again?…”

But such expressions of worry merely set the stage for further efforts to undercut federal fishery management efforts; as CCA went on to declare that “there is much work to do here, well beyond the action announced today. We need the Secretary and our champions in Congress to stay engaged and help us build a functional, fair, state-based management system for red snapper, and for the countless species behind it like amberjack and gray triggerfish, that are on the same federal management track to a dead end.”

For there is ample evidence that the people and organizations who worked to reopen the red snapper season ultimately had a more far-reaching goal in mind: Compelling Congress to weaken critical provisions of federal fisheries law.

That evidence exists in an e-mail sent by Earl Comstock, Director of Commerce’s Office of Policy and Strategic Planning, to Commerce Secretary Wilbur Ross on June 7, 2017. There, Comstock noted that if Ross approved reopening the red snapper season,

“Approval would also put the ball squarely in the court of Congress. Congress would need to act to prevent reduced catch limits for all fishing sectors next year. This problem will not be able to be addressed through the fishery management system without a change in law. The Congressional representatives know this, and are looking to [the Department of Commerce] for leadership. By resetting the debate and building a strong relationship with the State fishery managers, which is what this action would do, we can provide the leadership Congress is asking of us.”

That puts CCA’s comment that “We need the Secretary and our champions in Congress to stay engaged and help us build a…state-based management system for red snapper, and the countless species behind it” in the proper context, making it appear likely that the recreational fishing industry, certain congressmen and Commerce intentionally created a future crisis through the reopening of the fishery.

The crisis is coming because accountability measures adopted for the Gulf red snapper fishery require that, if anglers overfish their quota in any season, such overage must be deducted from the following year’s quota.

Both Commerce and the recreational fishing organizations that wanted the season reopened were aware of that fact. Commerce also knew, and confirmed in an email, that reopening the season would “result in the recreational catch limit for [2017] being exceeded by 30% to 50%.” Given the recent history of the fishery, it is extremely hard to believe that the various recreational organizations weren’t aware of that, too, despite disingenuous protests to the contrary .

Thus, those involved with the reopening were fully aware that it would lead to substantial overharvest in 2017, and that the full amount of such overharvest would be deducted from the 2018 recreational quota. Since Gulf of Mexico anglers were already catching most of their red snapper during the long state-waters seasons, any reduction in the 2018 recreational quota would almost certainly result in no federal-waters season at all.

Such a complete closure would play into the recreational industry’s narrative that “the federal fishery management system is failing” and that red snapper should be managed not by the National Marine Fisheries Service (NMFS), but by the states.

For years, recreational organizations had been energizing and enraging their members by pointing to short federal red snapper seasons, without acknowledging that NMFS was forced to set such seasons because of the large number of fish caught in state waters, when the federal season was closed. A complete shutdown of the federal red snapper fishery in 2018 could be used to generate even more outrage, perhaps enough to strip NMFS of its ability to regulate recreational red snapper fishing in the Gulf of Mexico.

Right now, there are two obvious ways that could happen.

H.R. 3588 (and its Senate counterpart, S. 1686), the so-called RED SNAPPER Act, would give the states bordering the Gulf of Mexico exclusive authority “to establish for each of fishing years 2018 through 2024 the timing and duration of the fishing season for private recreational fishing” for red snapper out to a line that is either defined by either the 25 fathom (150 foot) contour or is 25 miles from shore, whichever is farther from a state’s coast.

The RED SNAPPER Act, if passed, would extend the states’ longer seasons at least 25 miles into the Gulf, allowing anglers to fish in deeper waters where more and larger red snapper can be found. Such access to more and larger fish, over an extended season, would inevitably cause the recreational sector to overfish each year, thus perpetuating the overfishing caused when Commerce reopened the 2017 recreational season.

 Such overfishing would lead to conflicts between the RED SNAPPER Act and the Magnuson-Stevens Fishery Conservation and Management Act’s (Magnuson-Stevens) requirement that overfishing be halted.

 While the RED SNAPPER Act requires both that states “to the extent practicable, ensure sustainable and responsible fishery management consistent with” Magnuson-Stevens and that the allocation and season length for the commercial and for-hire fisheries remain the same as they were before the RED SNAPPER Act was passed “unless amended by the Secretary [of Commerce],” the very existence of the “to the extent practicable” and “unless amended” qualifiers presages an unavoidable problem.

Chronic recreational overharvest in federal waters, pursuant to state-established seasons, would lead to overall red snapper harvest regularly exceeding the overfishing limit set for the stock, unless NMFS offsets private-boat anglers’ overages by amending the regulations to further restrict the harvest of the commercial and for-hire recreational fleets.

Thus, if the RED SNAPPER Act became law, the recreational industry and anglers’ rights organizations would achieve one of their long-time goals, a de facto reallocation of the red snapper harvest at the expense of commercial fishermen and for-hire operators, without ever having to directly address that very controversial issue.

Even if the RED SNAPPER Act doesn’t make it through Congress, angling organizations may still be able to achieve their goal of state regulation of the federal-waters red snapper fishery through Exempted Fishing Permits (EFPs), which allow fishermen to engage in experimental fisheries in order to determine the merits of different management measures.

In September 2017, NMFS advised the Gulf states that it would consider EFPs that would set the state for state management of the recreational red snapper fishery in federal waters. Such EFPs would allow states to manage that fishery on an experimental basis, to determine such management would be viable in the long term.

Louisiana has drafted an EFP proposal that would allow anglers to fish for red snapper anywhere in state or federal waters off Louisiana, over the course of an extended season. Such season would be closed once the anglers landed approximately one million pounds of red snapper, which represents the state’s historical share of the fishery. Other states are expected to propose similar programs, although no other state has Louisiana’s ability to accurately track recreational landings on a timely basis.

While angling organizations have historically opposed EFPs that would grant commercial or for-hire fishermen an exemption from federal fishery regulations, they have not objected to the proposed EFPs that would allow states to manage recreational red snapper fishing in the Gulf of Mexico. That makes sense, for if the RED SNAPPER Act doesn’t pass, such EFPs represent anglers’ only realistic chance to legally harvest red snapper in the federal waters of the Gulf during 2018.

And if neither the RED SNAPPER Act nor the EFPs are adopted?

If that happens, the recreational fishing industry, and everyone else who wanted the 2017 season reopened, are going to have some explaining to do. They’re going to have to tell a lot of upset anglers just why they created a crisis that not only closed federal waters, but also resulted in a much smaller recreational quota.

If past behavior is any guide, they’ll try to blame the feds. But that excuse is starting to wear very thin.

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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/

WOULD MENHADEN HAVE DONE BETTER UNDER MAGNUSON-STEVENS?

Regular readers of this blog know that I am an enthusiastic supporter of the Magnuson-Stevens Fishery Conservation and Management Act, and more particularly, of the conservation and management provisions of that act which prohibit overfishing and require the timely rebuilding of overfished stocks.

Those regular readers also know that I am a frequent critic of the Atlantic States Marine Fisheries Commission, and other state management systems, largely because they don’t have such legally-enforceable requirements, and often make decisions in which economic, political and social considerations are elevated above the need to maintain and restore healthy fish populations. 

To that end, it’s probably worth noting that ASMFC’s former vision statement

“Healthy, self-sustaining populations for all Atlantic coast fish species or successful restoration well in progress by the year 2015”

has been abandoned, and has been replaced by

“Sustainably Managing Atlantic Coastal Fisheries.”

All mention of “healthy”populations and “successful restoration”, much less “by the year 2015”, has been deleted, which probably makes sense from ASMFC’s standpoint, as the aspirations expressed its previous vision statement, while certainly noble and worthwhile, were never matched by the organization’s real-world accomplishments, largely because the lack of legally-enforceable standards made it easy for ASMFC’s various species management boards to avoid making the kind of hard, but always unpopular, decisions that are often needed to successfully restore badly depleted fish stocks

ASMFC’s management process was criticized once again last November. 

Prior to that meeting, the Management Board had been deluged with comments from the public, which overwhelmingly supported the adoption of interim biological reference points, which would have required managers to consider menhaden’s role as a forage fish, and not just fishing’s impact on the sustainability of the stock, and opposed any increase in menhaden harvest.  However, in the end, the Management Board voted the other way, rejecting the interim reference points and increasing the annual catch limit.

Such votes came as a surprise to many in the conservation community, including both the professionals at various non-governmental organizations and the many concerned individuals who thought that Management Board failed to properly represent the public’s interest in a healthy menhaden stock, and instead bent over backward to accommodate the demands of both the Commonwealth of Virginia, which had previously been granted about 85% of the overall menhaden harvest, and Omega Protein Corporation, which harvests an overwhelming majority of the Virginia allocation.

During the many post-mortems that took place after the Management Board met and made its decisions, some folks blamed the outcome on ASMFC’s legally unfettered approach to fisheries management, and argued that the outcome would have been quite different had menhaden been managed under Magnuson-Stevens.

It’s an interesting argument, and one worth a bit of thought.

Although Magnuson-Stevens is a long and complicated law, its strength and effectiveness as a conservation tool can be boiled down to a few key provisions.

One is the concept of “optimum” yield, which for purposes of this discussion can be defined as

“…the amount of fish which will provide the greatest overall benefit to the nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems [and] is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor…”

Such key provisions also include National Standards One and Two, which require that

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry,”

and

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

Finally, to assure that healthy stocks are maintained at sustainable levels and that depleted stocks are returned to health, Magnuson-Stevens requires that each regional fishery management council

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process…”

and that

“for a fishery that is overfished, any fishery management plan, amendment, or proposed regulations…shall specify a time period for rebuilding the fishery that shall be as short as possible…and not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise…  [internal numbering omitted]”

ASMFC isn’t legally bound by any of those guidelines, so the question to be asked is, had menhaden been federally managed rather than managed by the states through ASMFC, would the outcome have been any different?

The most recent benchmark menhaden stock assessment, accepted for management use in 2015, found that

“Based on the current adopted benchmarks, the Atlantic menhaden stock status is not overfished and overfishing is not occurring.  In addition, the stock is currently below the current fishing mortality target and above the current [fecundity] target [an estimate of the eggs produced by the stock, used in place of a biomass reference point].  The fishing mortality rate is currently at F_65% which is the lowest [fishing mortality rate] in the time series.”

That being the case, even if the menhaden stock was federally managed, or if ASMFC was bound by the language of Magnuson-Stevens, neither the overfishing prohibition in National Standard One nor the 10-year rebuilding requirement would have prevented managers from making the same decisions that were made in November.

However, that still leaves open the question of whether the annual catch limit adopted by the Management Board would constitute “optimum” yield as defined in federal fisheries law.  Arguments can easily be made that it would not.  But those arguments would not reflect a consensus on what the optimum yield ought to be; factions supporting either a higher or a lower annual catch limit would each be able to cite language and data that justifies their positions.

On December 20, 2017, Virginia did, in fact, appeal the Management Board’s decision, arguing in part that the annual catch limit was set too low.  Virginia noted that

“the [Management] Board was presented with information indicating that raising the [total allowable catch] to 220,000 metric tons would result in absolutely no risk of the fishing mortality target being exceeded and raising the [total allowable catch] even higher would result in only a small risk of exceeding the target…The Board raised the [total allowable catch]  by 8%, setting it at 216,000  metric tons…

“In sum, the Board’s decisions on the [total allowable catch and other, related matters]…are excessively restrictive and unnecessary for the conservation of the menhaden fishery, should not be allowed to persist.  Virginia believes that the Interstate Fisheries Management Board should instead order that the total allowable catch be set at 220,000 metric tons…”

A letter from ASMFC’s Chairman, James Gilmore of New York, made it clear that ASMFC will not accommodate that request, although it is willing to hear an appeal on the related, reduced cap on menhaden harvest in Chesapeake Bay.  Would the catch limit have been any higher if menhaden were federally managed?

Maybe.

The question is whether a higher catch limit would provide “the greatest overall benefit to the nation,” and that’s a debatable question.  

Certainly, a larger harvest would, at least in the short term, provide a greater economic benefit to menhaden fishermen and the menhaden industry, so in that respect, a 220,000 metric ton annual catch limit would provide a greater economic benefit than one of 216,000 metric tons.

However, setting optimum yield requires that factors other than just economic gains be considered.  

In determining “the greatest overall benefit to the nation,” managers are directed to give particular consideration to “food production and recreational opportunities.”  Neither such factor is directly relevant here, although the argument could be made that abundant menhaden and other forage fish sustain and concentrate important food and recreational fish species, and in that way enhances both food production and recreation.

But ecological factors also come into play.  In determining optimum yield, managers are directed to “[take] into account the protection of marine ecosystems” and are authorized to set optimum yield at some level below maximum sustainable yield if justified by any “ecological factor.”

The conservation community and the vast majority of those who submitted public comments made just those points:  That interim ecological reference points were needed, and no harvest increase should have been considered, because of menhaden’s importance to the marine ecosystem as a forage fish.

Based on those arguments, had menhaden been federally managed, there is good reason to believe that interim ecological reference points would have been adopted, and the annual catch limit would not have been increased—provided that the requirements of National Standard Two were met:  Such interim reference points, and such lower catch limit, would have to be justified by the best available science.

And that’s exactly where things fell apart at the Management Board.

While few fisheries managers seriously doubt the important ecological role played by menhaden, and the effort to calculate menhaden-specific environmental reference points received wide support, the interim reference points preferred by most of the public, including me, turned out to be badly flawed, in a way that we all originally missed.

The preferred interim points, designated “Option E” in a draft document released by ASMFC, would have set a target menhaden biomass at 75% of the biomass of an unfished stock, and set a threshold biomass at 40% of a virgin population.  Remedial management action would only be required if biomass fell below the threshold level.

The problem with those reference points is that biomass includes all individuals in the population, immature fish as well as spawning-age adults.  And in the case of relatively short-lived forage fish such as menhaden, which are eaten by just about every larger predator that swims in or flies above the coastal sea, a lot of the biomass is made up of individuals that are too young to reproduce, while most of the fishing effort targets the sexually mature fish.  As a result, as explained at the November meeting,

“if you were to ramp up fishing mortality to the level that would allow you to achieve that threshold level, the vast majority of the biomass exists in [zero year old fish] and [one year old fish]  and then as you enter the [two year old fish] the population really starts to decay for fishing and natural mortality and all of those reasons.

“That is why the foible of that particular part of the [environmental reference points] exists, and that is you can really whack those older ages and drive them down to near zero; but you still have enough biomass in the zeros and ones and twos to meet that metric.  But if you were to then compare it to your fecundity metrics that you had been using that is where you would see the big difference.”

Thus, had menhaden been federally managed, it’s possible—but by no means certain or perhaps even probable—that the annual catch limit would not have been increased. 

On the other hand, the preferred interim ecological reference points would still have been doomed.  National Standard One prohibits overfishing, and overfishing occurs when

“[the] level of fishing mortality…jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.”

And since, as explained at the November meeting, the level of fishing mortality proposed in the favored interim reference point would have sharply reduced the fecundity of the stock, to a point where the spawning stock biomass would be “driven down to near zero,” such interim reference points would not meet the minimum standard established by Magnuson-Stevens.

Thus, the fate of such interim reference points would have been no different had menhaden been federally managed.

However, as this discussion demonstrates, what Magnuson-Stevens would have brought to the table is an orderly set of standards that could have been used to evaluate the various management options, a sort of structured analysis that is often absent at ASMFC.

While, with respect to menhaden, the result would probably have been the same regardless of the management body, that is often not the case, and it is difficult to argue that the ASMFC process would not be improved and made more effective if the Atlantic States Marine Fisheries Commission was bound by the same sort of objective legal standards that bind federal managers.