REP. ZELDIN CONTINUES HIS ASSAULT ON STRIPED BASS

Last week’s meeting of the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board was expected to be uneventful.  It was only scheduled for 45 minutes of discussion, and that discussion was going to revolve around purely routine matters, including a review of state compliance with the management plan, an update on the pending benchmark stock assessment, and electing the Management Board’s Vice-Chair.

I had something planned for Wednesday afternoon, and so wasn’t able to listen in on the meeting, but in all honesty, even if my time was free, I probably wouldn’t have signed onto the webinar, as the meeting promised to be pretty dull.

Unfortunately, that promise was broken.

Things went pretty well through all of the scheduled agenda items.  There was a small hiccup involving Maryland’s compliance with circle hook requirements, and an even smaller issue involving Maine, but in the end, the compliance report sailed through the Board without a lot of debate.

No problems arose until what was usually the most innocuous part of the meeting, the call for any new business.

It’s normally routine.  More times than not, no issues are raised.  But last Wednesday, at the Management Board meeting, that wasn’t the case.  A representative of the National Marine Fisheries Service rose to inform the Management Board that, at the apparent behest of higher-ups in the Department of Commerce, NMFS will soon be holding scoping hearings on opening up sections of the Exclusive Economic Zone around Block Island to striped bass fishing.

That was a bit of a bombshell.  And things didn’t end there.  

According to folks who attended or listened in on the meeting, there was also a strong suggestion that Commerce was thinking about eliminating the 30-year-old ban on striped bass fishing in the EEZ altogether.

That would certainly be a bad thing.

Rep. Lee Zeldin (R-New York) has been trying to open the EEZ around Block Island for a long time.  He has stated that

“One of the top legislative priorities of Long Island fishermen is the need to clarify the federal regulations regarding striped bass fishing in the small area of federally controlled waters between Montauk Point and Block Island.”

That’s a dubious statement at best.  

I’m a long Island fisherman, and I know a lot of other Long Island fishermen, and that’s certainly not our “top legislative priorit[y].”  

We can read pretty well—as far as I know, we all made it through high school, in the day when passing English remained a graduation requirement—and the wording of the regulations in question, 50 C.F.R. 697.7(b), is already perfectly clear. 

You can’t fish for striped bass in federal waters between Montauk and Block Island.  Period.  End of discussion.  No clarification needed.

What Zeldin is trying to do isn’t to “clarify” such regulations, but to negate them.  At the least, he should be up front about that.

Of course, he might not want to take credit for some of his earlier efforts.

The first, which he launched in 2015, involved H.R. 3070, a bill that he decided to title the “EEZ Clarification Act.” 

Like his more recent efforts, H.R. 3070 didn’t “clarify” anything at all.  Instead, it muddied the waters considerably, by creating two different EEZs—the first, the boundary that we all know and love, drawn 3 miles off the Atlantic coast, and the second, a separate EEZ that would be the same as the first for most purposes, but would make some crazy zigs and zags around Block Island, and would only apply to fishery management questions.

To add a little more “clarity” to the mix, the initial draft of H.R, 3070 actually had the "second" EEZ running through the southeast corner of Block Island, so that a surfcaster with his feet firmly planted on a Block Island boulder would be illegally fishing for striped bass in federal waters, while a Montauk charter boat captain fishing dead in the middle between Block Island and the Montauk Light would be on the right side of the law.

Zeldin, or at least one of his staffers, probably should have taken the time to look at a chart before dropping that bill, but I suppose the need to frustrate conservation efforts was a far more pressing concern than drawing boundaries that made some kind of sense.

And, of course, that assumes that either he or one of his staffers would actually know how to plot out the boundaries of his "new" EEZ, and actually read a chart, if they tried to consult one.

The error must have been caught over time, because an amendment was eventually filed that did away with the “clarity” created by the two EEZs, and merely encouraged federal managers to work with ASMFC to consider opening the waters in question to striped bass fishing.

Zeldin kept trying to open federal waters off Montauk to striped bass fishing, filing H.R. 1195, the “Local Fishing Access Act,” during the most recent session of Congress, but that bill was little more than a rehash of his amended H.R. 3070. 

His next really notable event didn’t occur until about a year ago, when he seemed to hope that Long Island’s striped bass poaching community—which includes a fair number of constituents way out on the South Fork—might name him their “Man of the Year.”

He did that by having two amendments attached to the House version of last year’s Omnibus Spending Bill, which would have prevented both NMFS and the Coast Guard from spending any of their appropriated funds to enforce the regulations prohibiting striped bass fishing in federal waters north and west of Block Island.  If Rep. Zeldin had gotten his way, striped bass poachers would have been able to operate in the clear light of day, flagrantly violating the law, knowing that they were free to flip the bird to the Coast Guard and NMFS enforcement agents who might otherwise cite them for illegal striped bass harvest.

Fortunately—at least that’s what we thought at the time—the Senate watered down the language to look a lot like the language of H.R. 1195 and the amended H.R. 3070, merely encouraging NMFS to work with ASMFC to consider allowing striped bass to be harvested in a small section of the federal sea off Block Island.

Unfortunately, we weren’t as fortunate as we had first believed.

As mentioned earlier, Zeldin's revised language, NMFS is now apparently planning to hold scoping hearings on the topic, hearings that will likely lead to proposed regulations opening the EEZ, not only off Block Island, but very possibly along the entire East Coast.

That bodes ill for the striped bass, because if we’ve seen any one thing from this administration, it’s that they care little for fisheries conservation, and whether we’re talking about red snapper, summer flounder or—I’m afraid—striped bass, and are always going to favor someone making abundant dollars today over everyone having healthy fisheries tomorrow.

A lot of folks fear that, as of right now, the striped bass population is already less than healthy.  Although there was a dominant year class in 2011, and another that was significantly above-average in 2015, a 2016 stock assessment update still shows the population to be barely 1,000 metric tons above the spawning stock biomass threshold that defines an overfished stock, while 13,000 metric tons below the target that defines a fully healthy spawning stock.  The assessment update made no projections as to whether the stock is likely to increase substantially under current regulations, but found it unlikely that it would be come overfished.

At the same time, there are some members of the Striped Bass Management Board who believe that the current target and threshold are too high, and that more bass ought to be killed for the usual “socio-economic benefits” (i.e., short-term profits) that such higher kill would bring.  The upcoming benchmark stock assessment will include a range of reference points, some of which could allow a substantially larger harvest than is currently the case.

Such higher harvest, coupled with an EEZ opening, could create a perfect storm for the striped bass.

If the only thing that we were talking about was opening the EEZ on two sides of Block Island, things would be bad enough.  The additional fish that would be caught as a result (and don’t think for a minute this isn’t about killing more fish; folks wouldn’t be trying so hard, for so long, to get the rules changed) might be enough, in some years, to lead to overfishing, although any overage would probably be fairly small.

But if NMFS opened the entire EEZ...

In promoting his prior legislation, Zeldin had claimed that

“It offers a simple local solution to a unique local issue,”

comments that seemingly reflect the testimony of Capt. Joe McBride, of the Montauk Boatmen and Captains’ Association, at a December 2015 field hearing on the bill, where Capt. McBride claimed that

“This anomaly exists only in this area because of the extended distance between Block Island, RI and Montauk Point, NY…

Over the last 35 years, I’ve gone to a lot of fisheries hearings here in New York, and the Montauk for-hire fleet has always claimed that they are in some way unique, and so somehow entitled to special consideration.  But anyone familiar with the entire, coastal striped bass fishery knows that is untrue.

There are plenty of bass on Stellwagen Bank in the EEZ off northern Massachusetts, and anglers illegally fish for them there, just as they illegally target them in the EEZ off Block Island.  

Further south in the Bay State, charter boats who want to fish rips off southern Cape Cod, Nantucket and Martha’s Vineyard have their own “unique” geographical arguments to make about why the EEZ should be open along their part of the coast.

Off western New York and northern New Jersey, a spring herring run will sometimes concentrate big striped bass in the EEZ, where they are met by a big fleet of boats, including a lot of for-hires.  

That’s a pretty “unique” situation, too.  

And I’ve seen boats, private and for-hire, cross the three-mile line in the fall off Long Island, to jig striped bass feeding on sand eels.

The story’s the same as you move down the coast, where just about every state has a “unique” situation where bottom topography and bait concentrations predictably coincide, to create a “unique” situation that could be used to justify striped bass harvest in the EEZ.

But nowhere does the situation become as critical for the striped bass as it does in the winter off Virginia and North Carolina, where most of the Chesapeake stock concentrates offshore.  There, the majority of the prime brood fish—the 40, 50 and even 60-pound fish that produce huge quantities of the most viable eggs—would be vulnerable to harvest if the EEZ opened up.

An interesting story that appeared in the Roanoke (Virginia) Times provides a pretty good idea of what would happen down there if the EEZ was opened up.  The author laments

“Winter striped bass fishing big disappointment along Virginia coast,”

and goes on to say

“Statistics from the Virginia Saltwater Fishing Tournament tell the story.  The 2013 citation count for the stripers stands at around 325, with a few more to be added as late forms are tallied.  In 2012 the count was nearly a thousand more, the second highest on record at 1,331.  Of that number, 107 fish weighed more than 50 pounds apiece; 11 of those fish were more than 60 pounds.  Included was a massive 74-pound state record…”

It’s probably no coincidence that the drop in the number of big fish being caught coincided with NMFS bringing charges against five charter boat captains who were regularly fishing for, and catching big, prime female striped bass in the EEZ off Virginia, arrests that brought penalties serious enough to incentivize fishermen--and the for-hires--to play by the rules.

So down in Virginia, the charter boats admit to being both frustrated and worried that they can’t take their passengers out into the EEZ where the big striped bass are.

It seems that they have a “unique” situation, too.

Thus, it’s pretty clear that Zeldin has opened Pandora’s Box.

He was an early supporter of Donald Trump’s presidential campaign, getting behind the then-candidate Trump well before the 2016 Republican primary.  He has remained very close to the Administration ever since.  Because of that, his continuing desire to have the EEZ opened to striped bass fishing in going to bear substantial weight with the Commerce Department.

But what Zeldin apparently didn’t appreciate—or, just as likely, he appreciated, but just didn’t care about—is that by insisting on opening the EEZ off Block Island, he drew the Administration’s attention to the entire EEZ closure.  

And once this administration starts looking at a regulation intended to promote conservation, such as the EEZ closure, the first thing they’re going to do is try to figure out how to make that regulation go away, because as any Administration official will be more than happy to tell you, conservation is bad for business, and business is the only thing that they give a single damn about.

So, while striped bass almost certainly wouldn’t take a fatal hit if the EEZ around Block Island was opened to fishing, eliminating the EEZ closure entirely would do some real harm.  

The commercial fishery wouldn’t do much more damage, because it is subject to a hard-poundage annual catch limit, and so its harvest wouldn’t automatically increase.  That’s not the case with the recreational fishery, which has no catch limit, but instead is subject only to a “soft cap” based on removal rates, and such rates aren’t even calculated every year.

Thus, recreational overfishing can go on for quite a long time before anyone even knows that it's happening.

To make things worse, the upcoming benchmark stock assessment will calculate stock health at the end of 2017, and will probably be used to establish regulations, which could well allow a bigger kill, during the course of 2019.  Such regulations would, most likely, become effective in 2020.

Because regulations to open the EEZ would probably be adopted during 2019,their effects won’t be considered in either the 2018 benchmark assessment or the regulations adopted in 2019. 

That timing, coupled with the lack of an annual catch limit for recreational fishermen, would set the stage for years of overfishing, driven by the harvest of a lot more big females in the EEZ.  Such fishing would go undetected until the stock assessment is updated in 2021 or 2022, by which point the spawning stock biomass could well be badly depleted.

Thus, the striped bass, striped bass fishermen and, appropriately, even the Montauk for-hires that have kept the EEZ issue alive will all lose, and lose badly, if the EEZ opening occurs.

But there’s no reason to believe that Zeldin is thinking that far ahead.

Which is why, when the scoping hearings begin, it will be up to folks who actually care about the striped bass, and about the future, to do his thinking for him.

Because this screw-up would be far worse than just drawing the EEZ across southeastern Block Island, in a bill that died long ago.  

And fixing it could take many years.

ASMFC POSTPONES ACTION ON MENHADEN

The Atlantic States Marine Fisheries Commission’s Summer Meeting was held this week.  

Although there were a number of items on the agenda, the meeting of ASMFC’s Atlantic Menhaden Management Board was probably viewed as the main event, with all of the other meetings forming a sort of undercard (in the end, that didn’t prove true, with some troubling news coming out of what had been expected to be an uneventful Atlantic Striped Bass Management Board meeting; that will be discussed here at some point next week).

Menhaden became a hot item after the Virginia legislature, which controls menhaden management in that state, refused to adopt the 51,000 metric ton cap on the large-scale “reduction” harvest of menhaden in Chesapeake Bay, which was included in the new Amendment 3 to ASMFC’s menhaden management plan.  Such refusal left an 87,216 metric ton cap in place, and put Virginia into technical noncompliance with ASMFC’s menhaden management plan.

As a result, at ASMFC’s Spring Meeting last May, the Atlantic Menhaden Management Board considered a motion that read

“Move that the Atlantic Menhaden Board recommend to the ISFMP Policy Board that the Commonwealth of Virginia be found out of compliance for not fully and effectively implementing and enforcing Amendment 3 to the Atlantic Menhaden Fishery Management Plan if the state does not implement the following measure from Section 4.3.7 (Chesapeake Bay Reduction Fishery Cap) of Amendment 3:  The annual total allowable harvest from the Chesapeake Bay by the reduction fishery is limited to no more than 51,000 mt.”

However, a vote on such motion was postponed until the Summer Meeting, to provide the Virginia legislature with an opportunity to bring the state into compliance with the management plan. 

If the legislature failed to adopt the lower Bay Cap, as ultimately proved to be the case, by the August meeting, the Atlantic Menhaden Management Board could then find them out of compliance with the management plan, a which, if affirmed by ASMFC’s Policy Board and then by the Secretary of Commerce, could result in a total moratorium being placed on all of Virginia’s menhaden fisheries until the state adopted the lowered Bay Cap.

The Bay Cap was supported by a very broad array of anglers and conservation groups, who believed it was necessary to maintain the ecological health of Chesapeake Bay.  A grassroots appeal made by the Theodore Roosevelt Conservation Partnership provides a good summary of the pro-Cap side’s arguments.

“Menhaden, the small, oily baitfish also known as bunker or pogie, are well-deserving of their other nickname:  ‘the most important fish in the sea.’  They are a critical food source for many of the sportfish that we love to pursue and they filter gallons of water a minute to improve water quality where polluted runoff is a serious threat to habitat, like the Chesapeake Bay.

“For decades, the reduction fishing industry---which ‘reduces’ menhaden for feed and oil for use as pet food and agriculture feed—lobbied for higher and higher menhaden quotas.  Last year, anglers pushed back.  The Atlantic States Marine Fisheries Commission responded by voting to place a modest cap to conserve menhaden in the Chesapeake Bay and study methods of managing forage fish with their ecological importance in mind.

“But in Virginia, a single company representing a last harmful relic of past mismanagement may not comply with the cap.  It’s time for the Atlantic States Marine Fisheries Commission and the Secretary of Commerce to hold Omega Protein accountable and, if necessary, shut the reduction fishery down…”

More generally, Bay Cap supporters claimed that such cap was needed to prevent “localized depletion,” which they said, occurred when the reduction fishery removed so many menhaden from Chesapeake Bay that there was not enough to support striped bass and other predatory fish, fish-eating birds and marine mammals.

The reduction fishery opposed the Bay Cap, arguing that no study had ever clearly established that predators were harmed by localized menhaden depletion in the Bay.  It found support in a statement in Amendment 3 itself, which said that

“In 2005, the Board established the Atlantic Menhaden Research Program (AMRP) to evaluate the possibility of localized depletion.  Results from the peer review report in 2009 were unable to conclude localized depletion was occurring in the Chesapeake Bay and noted that, given the high mobility of menhaden, the potential for localized depletion could only occur on a ‘relatively small scale for a relatively short time.’”

ASMFC leadership acknowledged the lack of scientific support for the Bey Cap in a letter written to the Commonwealth of Virginia prior to ASMFC’s Winter Meeting last February.

Thus, the battle lines for last Tuesday’s meeting were set.

The meeting opened with a substitute motion brought by Maryland, which would have found Virginia out of compliance only if the 51,000 metric ton Bay Cap was actually exceeded, and not merely because the legislature failed to act.  Such motion had the support of not only Maryland, but also of Virginia and the Potomac River Fisheries Commission, so every Chesapeake Bay jurisdiction with an interest in menhaden was on board.

Other Management Board members, however, had their doubts.

Robert Ballou, the proxy for Rhode Island’s marine fisheries director, was concerned that not finding Virginia out of compliance until it actually exceeded Amendment 3's Bay Cap would set a precedent that other states would use to avoid adopting needed regulations.  He feared that extending such an opportunity to Virginia would “tear at the fabric” of what ASMFC had done in the past.

A number of Management Board members expressed similar thoughts.  Some of them argued that it was a matter of principle, and that ASMFC should not allow Virginia to ignore the demands of the management plan, even though it was pretty certain that, as a practical matter, Virginia’s 2018 reduction harvest in Chesapeake Bay would fall far below 51,000 metric tons.

Others were not so sanguine.  

Jim Gilmore, the marine fisheries director from New York and also the current Chairman of ASMFC, reluctantly supported the substitute motion.  He admitted that

“We have two choices and neither of them is very good,”

which was a clear reference to the likelihood that the Secretary of Commerce would overturn any noncompliance finding, and so undercut the authority of future ASMFC actions.  

Undoubtedly for that reason, Mr. Gilmore noted that holding Virginia responsible for what he called “a technical noncompliance” might do more harm than good.  He recalled that when he first became involved in fisheries management, a mentor reminded him that

“What your job is, is to serve the resource,”

and said that

“My opinion is, to serve the resource right now,”

ASMFC should approve the substitute motion.

His position, too, garnered its share of support

Pat Kelliher, the fisheries director from Maine, reflected the dilemma the Management Board was in when he observed that

“Both sides of this issue are concerned with the fabric of the Commission.”

They just disagreed on what action was most likely to tear that fabric apart.

As the vote drew near, it wasn’t at all clear which side of the debate would prevail.

But that all changed when Chip Lynch, an attorney for the National Marine Fisheries Service, took the floor.  He said that ASMFC had to decide for itself what to do, but observed that if ASMFC found Virginia out of compliance, it would be the first time in more than 24 years that such noncompliance finding was applied to a species that was neither overfished nor subject to overfishing, and for which

“there is record evidence from the leadership of the Commission that the measure [giving rise to the noncompliance finding] is not related to conservation.”

That was a key point, because even if the Secretary of Commerce was inclined to support any such noncompliance finding (and his past actions suggest that he was probably not so inclined), his ability to do so was limited by the express terms of the Atlantic Coastal  Fisheries Cooperative Management Act, which states in relevant part that

“Within 30 days after receiving a notification from the Commission [that a state has been found out of compliance] and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on

1)      whether the State in question has failed to carry out its responsibility to [adopt and enforce the relevant provisions of an ASMFC management plan]; and

2)      if so whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.  [emphasis added]”

I’ve been an attorney for about 40 years and, based on the administrative record, there is no way that I would have been able to advise a client that Amendment 3’s Bay Cap was necessary to conserve the menhaden fishery.  Anyone listening to Mr. Lynch speak would have been just about sure that he couldn’t, in good faith, give such advice to his client, either.

That changed the tenor of the debate.

When a vote was taken, the substitute motion was voted down, but Virginia was not found out of compliance.

Instead, the Management Board again voted to postpone any action on the noncompliance motion, this time until its February 2019 meeting, to give everyone involved in the issue a chance to work it out; that’s particularly important for the Virginia legislature, which will meet over the winter.

While it wasn’t a satisfying outcome—most folks involved with the issue feel that Virginia’s failure to adopt the Bay Cap was inherently wrong—it was probably inevitable, for as Mr. Gilmore noted, the consequences of finding Virginia out of compliance could, and I believe would, have been worse.

In the meantime, hope remains that, before next February, people will come together in good faith to work out the issues, so that a vote on noncompliance will not be needed.

SHORTFIN MAKOS IN PERIL

Shortfin makos swim through the ocean like they own the place, moving swiftly and decisively below the surface, or cruising up on top displaying their distinctive blue-black dorsal fin, like a flag, to the sun.

Along the northeast coast, they’re the shark most sought out by anglers, because they are a fish of superlatives. Shortfin makos are the fastest shark in the ocean, capable of swimming as fast as 45 miles per hour. They are also among the highest-jumping sharks, able to launch themselves more than 20 feet into the air, something that they often do after being hooked. And makos are arguably the most beautiful shark in the sea, streamlined and symmetrical, with a deep blue back that gradually fades along blue-silver sides to a snow white belly.

Unfortunately for the mako, it is also one of the best-tasting sharks—so good tasting, in fact, that its meat is sometimes mislabeled as swordfish.

As a result, a lot of makos are killed every year by recreational and commercial fishermen.

Scientists didn’t realize just how many makos were being killed until some time last year, when a team of biologists working out of Florida’s Nova Southeastern University published results from a satellite tagging program, which indicated that as much as 30% of the shortfin mako population may be harvested by fishermen each year.

That represents a fishing mortality rate ten times higher than previously believed, and one that is not sustainable. Shortfin makos take a very long time to mature; about 50% of the females are not yet mature when 18 years old. Once mature, they normally give birth only once every three years, producing between four and sixteen live young each time they do so.

Such late maturity and slow reproductive rate does not allow the shortfin mako to tolerate significant fishing mortality.

That was confirmed late in 2017, when the International Commission for the Conservation of Atlantic Tunas (ICCAT) released a new stock assessment indicating that the shortfin mako was badly overfished, and that severe overfishing was still occurring. The assessment, which drew its conclusions from three different population models, revealed that the North Atlantic stock of shortifin makos had declined sharply, and that such decline would continue unless fishing mortality was reduced by 75%.

That is a difficult target, as much of the mortality is caused by longline bycatch in the pelagic swordfish and tuna fisheries, not by intentionally directing fishing effort on the makos themselves. Even if it can be met, a 75% reduction would not guarantee the recovery of the North Atlantic stock. While it would halt the decline, it would have only a 25% chance of rebuilding the stock to sustainable levels by the year 2040. In order to have even a 50-50 chance of rebuilding the stock in that time, fishing mortality would have to be cut to zero.

That’s not just a difficult goal, it’s a practical impossibility. The ICCAT assessment made it clear that even if no further shortfin mako landings were allowed, the 75% reduction in fishing mortality might not be achieved due to the level of bycatch in the longline fishery, where about 30% of all makos caught would still die.

In addition, not all of ICCAT’s contracting members were willing to completely ban mako landings in order to better assure the recovery of the species. Some, unfortunately including the United States, didn’t want to forego all of the short-term economic gainsthat flow from a limited shortfin mako harvest. Thus, ICCAT ultimately came up with a compromise recommendation that would significantly reduce shortfin mako landings, but still allows some fish to be killed.

On March 1, 2018, the National Marine Fisheries Service (NMFS) announced emergency regulations intended to comply with the ICCAT recommendation.

The emergency regulations prohibit commercial fishermen, other than pelagic longliners, from harvesting shortfin makos. Pelagic longliners, which are required to have video monitoring equipment on board that records all fish caught, may retain all shortfin makos that are already dead when the fishermen haul back their gear; all live makos must be released.

The emergency regulations also increased the minimum size on shortfin makos caught by recreational fishermen from 54 inches (fork length) to 83 inches.

The emergency regulations became effective on March 2, but will only be in force for 180 days. NMFS could extend them for another 186 days, but after that, they will expire. In order to begin the process of providing more permanent protection for the shortfin mako, NMFS also solicited public comments on a wide range of possible management measures.

NMFS reviewed all of the comments received, and has prepared a proposed Amendment 11 to the Consolidated Highly Migratory Fishery Management Plan (Proposed Amendment) which, if adopted, will give the shortfin mako protections similar to those provided by the emergency regulations.

However, they are some significant differences.

While the emergency regulations consisted of only one commercial and one recreational fishing measure, the Proposed Amendment asks the public to comment on a range of possible alternatives, including “preferred alternatives” that, absent substantial and convincing public comments to the contrary, are likely to be adopted by NMFS. However, even such preferred alternatives differ somewhat from the emergency regulations now in effect.

While the emergency regulations only allow pelagic longliners to retain shortfin makos that are already dead when brought to the boat, the Proposed Amendment’s preferred commercial alternative would permit any commercial fishing vessel to do so, provided that such vessel has a commercial shark permit and has installed a video monitoring system that will allow NMFS to determine whether any shortfin makos landed were actually dead when first brought aboard. Purchasing, installing and maintaining such video monitoring systems is fairly costly, so it’s not clear how many vessel operators will take advantage of the proposed change.

Non-preferred commercial alternatives range from making no permanent changes to the regulations at all, which would violate both the United States’ obligations as a contracting party to ICCAT and the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act, to completely prohibiting the commercial harvest of shortfin makos. Most differ from the preferred commercial alternative only in the level of monitoring required, although one would also impose a minimum size.

There are two preferred recreational alternatives. One would perpetuate the 83-inch minimum size established by the emergency regulations. The other would require anglers fishing pursuant to federal Highly Migratory Species permits to use non-stainless steel, non-offset circle hooks whenever fishing for sharks with bait, a requirement that currently applies only south of latitude 40^o 43′ North, or approximately the latitude of Chatham, Massachusetts.

As was the case with the non-preferred commercial alternatives, non-preferred recreational alternatives run the full gamut from status quo (once the emergency regulations expire) to a complete prohibition on landings. Most non-preferred alternatives proposed varying size limits, mostly based on the sex of the shark, or imposed fishing seasons that had different and arguably inequitable impacts on anglers in different states.

Finally, the Proposed Amendment contains a preferred alternative that would direct NMFS to develop a shortfin mako rebuilding plan in cooperation with ICCAT, which is expected to complete its rebuilding plan in 2019. A unilateral NMFS rebuilding plan was a non-preferred alternative, as shortfin makos in the North Atlantic are caught by fishermen from many nations, with the United States only accounting for about 11% of the overall harvest.

While there may still be some doubt about what NMFS’ final shortfin mako management measures will look like, there is no doubt that the mako is in serious trouble, and that such management measures are badly needed.

The public can help bring the process to a prompt and favorable conclusion by going to the NMFS webpage describing the Proposed Amendment, and sending their comments to NMFS before the October 1, 2018 deadline.

Hopefully, people will decide to do so, for our seas would be a far emptier place if makos weren’t around.

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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/

ASMFC FACES MENHADEN DILEMMA

On the surface, things look cut and dried.

Last November, the Atlantic States Marine Fisheries Commission adopted Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden which, among other things, cut the amount of menhaden that the large-scae “reduction” fleet could catch in Chesapeake Bay from 87,216 to 51,000 metric tons.  When it announced such reduction, ASMFC said that

“This recognizes the importance of Chesapeake Bay as nursery grounds for many species by capping recent reduction landings from the Bay to current levels.”

making it very clear that the Commission reduced the so-called “Bay Cap” not only to protect the menhaden itself, but to also protect the many other fish species that live in Chesapeake Bay during the early stages of their lives, which depend on menhaden for food.  

The Bay Cap thus represented one of ASMFC’s first, very small steps toward implementing the concept of “ecosystem management” of fisheries, which takes into consideration not only the single stock being managed, but that stock’s role in the overall ecosystem.

It is an approach particularly suited to forage fish such as menhaden, which are typically key threads in a food web that supports many different, and often economically valuable, species of fish, as well as fish-eating birds and marine mammals, but which have relatively little economic value themselves, and so must be caught in very high-volume fisheries in order to yield an acceptable profit. 

Viewed from a real-world perspective, the Bay Cap did nothing to limit the reduction boats’ harvest of menhaden in Chesapeake Bay; such harvests did not exceed 50,000 metric tons in any of the years 2014-2016, the last data available to the people who drafted Amendment 3.  Even so, the reduced Bay Cap elicited a knee-jerk reaction from various organizations connected to the reduction fishery. 

Omega Protein Corp., a U.S. subsidiary of the big Canadian aquaculture company Cooke, Inc., is the sole participant in the reduction fishery for Atlantic menhaden.  It aggressively opposed the reduced Bay Cap, saying that

“By its own admission, the commission did not act scientifically when it reduced the amount of menhaden that can be harvested in the Chesapeake Bay by over 40 percent.  In replying to Virginia’s since-withdrawn appeal of the Chesapeake Bay cap, the commission admitted that Amendment 3, which codifies the cap, ‘does not provide sufficient evidence to support’ claims of localized depletion.  Ostensibly aimed at preventing localized depletion of menhaden in the bay, there is no scientific evidence that a bay cap is necessary, or that localized depletion is actually occurring.”

Of course, there is also no evidence sufficient to determine that localized depletion is not occurring, and faced with a situation where the facts have not been revealed with any certainty, ASMFC opted to take a precautionary approach that prevented any increase in the removals of menhaden from Chesapeake Bay, an approach that could well end up protecting the bay ecosystem while doing harm to no one.

However, Omega accurately quoted ASMFC’s response to Virginia’s now-withdrawn appeal, and that response remains on the record to cloud the menhaden management picture.

As for Virginia, its position is clear.  

Menhaden are the sole species of salt water fish managed by the state’s legislature, not by its state fisheries agency.  That’s a situation that seems to suit Omega, which reportedly poured about $128,000 into the most recent election cycle, just fine.  For perhaps as a result of just such largesse, the legislature refused to amend Virginia’s laws to adopt the lowered Bay Cap, even though the state’s newly-elected governor urged it to do so.

That put Virginia in technical violation of ASMFC’s menhaden management plan, and put ASMFC into a bind.  

Based on Virginia’s failure to comply with the provisions of the plan, ASMFC could have initiated formal noncompliance proceedings at its May 2018 meeting; such proceedings could ultimately result in the complete closure of Virginia’s menhaden fishery until such time as Virginia chose to comply.

A motion to begin such proceedings was made at the May meeting of ASMFC’s Atlantic Menhaden Management Board, when Chris Batasavage, the Administrative Proxy from North Carolina decided to

“Move the Atlantic Menhaden Board recommend to the ISFMP Policy Board that the Commonwealth of Virginia be found out of compliance for not fully and effectively implementing and enforcing Amendment 3 to the Atlantic Menhaden Fishery Management Plan if the State does not implement following measures from Section 4.3.7 (Chesapeake Bay Reduction Fishery Cap) of Amendment 3: The annual total allowable harvest from the Chesapeake Bay by the reduction fishery is limited to no more than 51,000 metric tons.”

That motion was quickly seconded by Jim Estes, the Administrative Proxy from Florida.

Robert Boyles, the marine fisheries director from South Carolina, gave such motion strong support, saying that

“…I pulled up the U.S. Code and would remind you of the 1993 Atlantic Coastal Cooperative Fisheries Management Act.  Finding of the U.S. Congress Section 5-1-01 of the U.S. Code, ‘the failure of one or more Atlantic states to fully implement a coastal fishery management plan can affect the status of Atlantic Coastal Fisheries.’  I would like to add emphasis here, Madam, ‘and can discourage other states from fully implementing coastal fishery management plans.’  I’ll speak for myself and say I’m discouraged.  We have embarked on this action, and it took a long time to bring us to Baltimore [where Amendment 3 was finalized].  I went back and I looked, and it was a strong vote to approve Amendment 3; 17 to 1, I believe.  I’m discouraged.  I think if I may…I think we can make a strong case that we really want compliance here.

“The law requires compliance.  But I saw an opening and I saw the words discouraged.  I think that part of what we need to keep in mind here is that as you all know I like to quote Dr. Franklin, who said ‘If we don’t all hang together we will certainly hang individually’…”

It was a good argument, and on merit alone, should have carried the day.  But there was another consideration that was also in everyone’s mind, a consideration that has had the potential to taint every action that ASMFC has taken in the past year.

It arises out of the fact that ASMFC’s finding of noncompliance isn’t enough to shut down a state’s fishery pursuant to the provisions of the Atlantic Coastal Fisheries Cooperative Management Act.  Instead, within 10 days after making such finding, ASMFC must send a letter notifying the Secretary of Commerce of such action, and

“Within 30 days after receiving a notification from the Commission…and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on—whether the State in question has failed to carry out its responsibility under…this title; and if so, whether the measures the State has failed to implement and enforce are necessary for the conservation of the fishery in question.  [emphasis added, internal numbering deleted]”

If the Secretary finds both that the state was not in compliance with some or all measures in the relevant fishery management plan, and that such measures are necessary for the conservation of “the fishery in question,” the Secretary must then completely shut down such fishery in the noncompliant state until such state amends its management measures to accord with the ASMFC plan.

For nearly 24 years, regardless of the Administration that sat in the White House and regardless of the party in power, the Secretary of Commerce always supported ASMFC’s noncompliance findings.  But now, we have an Administration in Washington that treats notions of fisheries conservation—notions of any sort of conservation, really—about the same way that a he-dog treats a fire hydrant.

Last year, breaking over two decades of precedent, it decided to overturn an ASMFC decision finding New Jersey out of compliance on summer flounder, without even consulting its own experts on the summer flounder fishery.

That action followed close on the heels of another which, although not impacting ASMFC, violated federal fisheries law by reopening the recreational red snapper season in the Gulf of Mexico, even though it new that overfishing, and a delay in rebuilding the stock, was the likely result.

Thus, Adam Nowalski, the Legislative Proxy from, ironically, New Jersey was not out of line when he asked

“Keeping in mind a recent finding by the Secretary of Commerce.  Does the Commission feel that it can make a compelling argument to the Secretary of Commerce that this regulation is needed for the conservation of the resource?”

Given that Virginia landed 146,597 metric tons of menhaden in 2016, the lion’s share of the 177,991 metric tons landed in the Atlantic, ASMFC could well have a hard time arguing that  not catching 36,000 metric tons—the difference between Virginia’s current Bay Cap and the one mandated by Amendment 3—in Chesapeake Bay, and catching it in the ocean instead, is necessary to conserve Atlantic menhaden.

That’s particularly true when dealing with a Secretary of Commerce who has reliably elevated short-term profit above long-term sustainability.  An argument that harvesting the 36,000 metric tons in the ocean instead of the Bay is necessary to conserve Atlantic menhaden seems destined to fall on his very deaf ears.

Thus, ASMFC finds itself in a bad place.

If it fails to find Virginia out of compliance, it weakens its authority, and its future ability to convince member states to comply with politically unpopular management measures.

On the other hand, if it finds Virginia out of compliance, and the Secretary overrides its decision, it has shown itself to be a paper tiger, unable to enforce its own management actions.  Such a demonstration could haunt ASMFC even after the current Administration is gone, as the precedent of Commerce repeatedly overriding Commission decisions lives on.

Dennis Abbot, the Legislative Proxy from New Hampshire, certainly had that in mind when he noted,

“…I think that this issue goes even beyond the question of noncompliance with Virginia.  It really goes to the health of this organization…”

Most of the Management Board agreed.  Instead of voting on Mr. Batasavage’s motion, they approved a motion by Patrick Kelliher, the state fishery manager from Maine,

“to postpone to the August Commission Meeting Week and in the interim send a letter to the Commonwealth of Virginia detailing the contents of the proposed motion,”

with 16 in favor, 2 abstaining.

The “August Commission Meeting Week” begins next Tuesday, and the Atlantic Menhaden Management Board will meet on its first day.  Virginia has done nothing to come into compliance with the new Bay Cap.

As a result, there will undoubtedly be a strong effort to find Virginia out of compliance.  I suspect that such effort will garner its most enthusiastic support from southern states that do not often have to rely on ASMFC to serve as an arbiter in interstate conflicts and competitions for shares of migratory fish stocks.

They will mostly be concerned with maintaining the prestige and authority of the institution, and the strict enforcement of ASMFC management plans.

There will probably also be a strong effort to avoid a final confrontation with Virginia, that will end up on the Secretary of Commerce’s desk.  That effort, I think, will arise out of the Mid-Atlantic and maybe New England states.  Fishery managers from those regions will be concerned about the Secretary of Commerce repeatedly undercutting ASMFC's  fishery management plans, fearing that such Secretarial actions could well throw the entire cooperative interstate management program into chaos, and thus cripple efforts to manage and conserve everything from striped bass to summer flounder.

They won’t want to risk putting another nail into ASMFC’s coffin by fighting over where--not how much, just where--Virginia harvests its menhaden.

Right now, I have no idea which side will prevail and, given the real-world impacts of the vote, am not even 100 percent sure which side should prevail.

I just hope that the Management Board will play a long game, and do what’s best for both the menhaden and ASMFC in the long term.

Maybe, somehow, a deal will be struck before Tuesday.  

Maybe not.

But whatever happens, I hope that the result is not that the fish, in the long term, all lose.