THE 2020 ELECTION: HOW MIGHT FISHERIES BE AFFECTED?

 

As this is being written, nearly a month after the 2020 election, the outcome of the election is not yet fully clear.

The Democrats have retained the House of Representatives. Although a few races remain in doubt, it’s clear that their majority in the 117^th Congress will be significantly smaller than it was in the previous session.

Barring some unprecedented and probably unthinkable event, the Democrats have also captured the White House, with President-elect Biden standing by to take over on January 20, 2021.

Senate control, however, remains an open question, to be decided by two runoff elections in Georgia. If Democrats beat the odds and win both, the Senate will be split 50-50, giving the Democrats practical control, as now Vice President-elect Kamala Harris votes to break any tie. However, it is more likely that the Republicans will hold on to a slim 52-48 or 51-49 majority.

What might that mean for fisheries issues? Like the outcome of the election itself, that’s not completely clear.

At the administrative level, we’ll undoubtedly see a better fisheries management environment, as science, rather than special interests’ economic concerns, will drive most decisions. While politics will never be completely purged from the process, and some aspects of fisheries management will remain political endeavors, it’s very unlikely that the new administration will cavalierly override an Atlantic States Marine Fisheries Commission finding of non-compliance, as the current administration did in the case of summer flounder in 2017, or reopen a fishing season, knowing that overfishing would inevitably result, as it did with Gulf of Mexico red snapper in the same year.

It’s also likely that an incoming Biden administration will take a more fish-friendly view of broader environmental issues. President-elect Biden has already expressed his opposition to the controversial Pebble Mine in Alaska’s Bristol Bay watershed and could, conceivably, reverse recent executive orders that allowed commercial fishing in the New England Canyons and Seamounts Marine National Monument and sought to eliminate regulations that allegedly hold down fish landings. Under his administration, we will probably see better enforcement of Clean Water Act regulations, better protections for threatened and endangered fish, and more aggressive stewardship of anadromous species’ spawning and nursery grounds. President-elect Biden will also hire former Senator John Kerry to address climate change issues, which will undoubtedly include those impacting fish stocks.

At the legislative level, predictions are harder to make. Whether or not the Senate remains in Republican control, the fate of fisheries legislation may well turn on whether Congress returns to its traditional bipartisan approach to such issues. Given the partisan nature of so many congressional debates, it’s sometimes hard to remember that when the Sustainable Fisheries Act of 1996 (SFA), a bill that substantially amended and improved the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), was introduced in the 104th Congress by Senator Ted Stevens (R-AK), four Democrats and four Republicans chose to cosponsor the bill, which was then unanimously approved by that chamber, and passed 384-30 by the House.

That contrasts with the 2018 House vote on the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act (H.R. 200), which sought to roll back some of the conservation measures included in the SFA, and so weaken the federal fisheries management system. The House approved that bill 222-193 on an essentially party line vote, that saw only 15 Republicans oppose the bill, while 9 Democrats voted in favor.

If such partisanship prevails in the 117^th Congress, it will be more difficult for fisheries legislation to progress. However, there is probably some reason for hope.

House passage of H.R. 200 was driven, in large part, by many Republican representatives’ belief that industry, including the fishing industry, suffers from overregulation; since Republicans lost control of the House in the 2018 election, deregulation proponents no longer hold enough power to determine the outcome of a vote. While there is a good chance that the Republicans will retain control of the Senate, that chamber has historically taken a more thoughtful approach to fisheries legislation; H.R. 200 languished there after House passage. Such approach is unlikely to change after the most recent election.

In addition, senators from states with large fishing industries, whether Democrats or Republicans, are likely to place the interests of their constituents ahead of any philosophical concerns they might harbor about government overreach or the growth of the administrative state.

Thus, while no one should expect to see a 1996-like level of bipartisan cooperation on ocean issues, it is reasonable to hope that sponsors of needed fisheries legislation will be able to build enough support from both sides of the aisle to see such legislation passed.

What oceans bills will be introduced in the 117^th Congress? While it’s impossible to predict everything that might come up over the next two years, there are a few pieces of legislation that Congress is almost certain to consider.

One is a Magnuson-Stevens reauthorization bill.

Since the Fishery Conservation and Management Act of 1976, which has since evolved into Magnuson-Stevens, was introduced, the law has been reauthorized about once each decade. The last such reauthorization occurred in 2006, so another is arguably overdue. Rep. Jared Huffman (D-CA), Chair of the House Natural Resources Subcommittee on Water, Oceans and Wildlife, has been holding a “nationwide listening tour,” during which a broad array of stakeholders interested in fisheries and marine issues have been asked to provide their views on needed changes to Magnuson-Stevens.

Stakeholders’ comments to Rep. Huffman have been varied. While some fishermen complained about “overly precautionary” management and sought to reduce restrictions on fishing activities, most stakeholders praised Magnuson-Stevens’ conservation and management provisions. Many suggested that any amendments should provide greater protections for forage fish and provide a greater emphasis on ecosystem-based management approaches. Others spoke about the need for improved fisheries data, particularly with respect to recreational fisheries, and the need to consider the impacts of climate change on recreational and commercial fisheries.

The nature of the comments suggested that any proposed changes to Magnuson-Stevens are likely to be evolutionary, taking few significant departures from the existing law while further enhancing its ability to conserve and manage fish stocks, rather than revolutionary changes to the current statute’s language and intent. It is likely that the first draft of a reauthorization bill will be released early in the next congressional session.

Climate change, and its impacts on the ocean, will be another hot issue in the 117^th Congress.

On October 20, 2020, Rep. Raul Grijalva (D-AZ), Chairman of the House Natural Resources Committee, introduced the Ocean-Based Climate Solutions Act of 2020 (H.R. 8632), which addressed a number of climate-related ocean issues, including carbon sequestration, marine protected areas, a prohibition on offshore oil and gas leasing, offshore renewable energy development, climate-related fisheries topics, barrier beach management, various coastal zone management and insular affairs issues, marine mammal conservation, coastal resiliency and the resiliency of coastal indigenous peoples, ocean acidification, harmful algae blooms, marine research, coastal wetlands protections, and related matters.

 Although hearings were held on H.R. 8632 and other ocean-related bills on November 17, 2020, the bill is so large that there is no chance that it will be given serious consideration in the current lame duck session of Congress. However, given that it has already attracted the support of public support, there is little doubt that legislation resembling H.R. 8632 will be reintroduced in the 117^th Congress. Yet, as parts of the current bill, particularly those titles which would create a large network of marine protected areas and prohibit additional offshore oil and gas leasing, have drawn substantial opposition, H.R. 8632 may prove to be the biggest single test of members’ willingness to work in a bipartisan fashion to craft a compromise that is reasonably acceptable to everyone.

 The other issue that is almost certain to generate legislation in the 117^th Congress is offshore aquaculture. Currently, neither the National Marine Fisheries Service nor any other federal administrative agency has the authority to regulate and license aquaculture facilities in waters between 3 and 200 miles from shore, a fact that was confirmed by the United States Court of Appeals for the Fifth Circuit on August 4, 2020. However, both private companies and some federal legislators are eager to see such facilities developed off the U.S. coast.

In order to grant the National Oceanic and Atmospheric Administration regulatory authority over offshore aquaculture, legislators have introduced the Advancing the Quality and Understanding of American Aquaculture Act (AQUAA Act) in both the 115^th and 116^th sessions of Congress. Although the language of the AQUAA Act versions introduced in the two sessions differed somewhat, the intent of the bill was the same, and a third version is very likely to be introduced fairly soon after the new session convenes.

Legislation besides the bills described above will probably be introduced to deal with other, yet unidentified, marine and fisheries issues.

Whether any ocean-related bills pass will depend, in large part, on whether legislators from both parties, and from both houses of Congress, are willing to sit down together and work to further the public’s interest in a healthy and abundant ocean.

They have been willing to do so before. There is hope, but no certainty, that they will be willing to do so once the 117^th Congress convenes.

 

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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 www.conservefish.org/blog/

RECREATIONAL FISHING DATA--THE TRUTH IS OUT THERE, AND IT'S NOT HARD TO FIND

 

Last Thursday, I wrote about the Mid-Atlantic Fishery Management Council’s upcoming deliberations about 2021 recreational regulations, and how such deliberations will be badly hampered by a lack of fisheries data.  But I also noted that such lack of data was a direct result of COVID-19’s impacts on the data gathering process.

In most years, recreational fisheries data is both abundant and easy to find.  Yet that truth doesn’t prevent debates over such data to become one of the most pervasive aspects of fisheries management on the East and Gulf coasts, nor does it prevent such debates from being among the most bitter and divisive discussions that occur at fisheries meetings; only fights over allocation might provide a challenge in such regards.

At one time, the debate over recreational data was easy to understand.  Prior to 1981, the National Marine Fisheries Service based recreational landings estimates on a survey that was woefully imprecise.  Beginning in ’81, the agency began relying on something called the Marine Recreational Fishing Statistics Survey, which was usually shortened to “MRFSS.”

MRFSS was a big step up from the haphazard survey that had existed before, but it still had a lot of problems—something pointed out in the National Academy of Sciences 2006 report, Review of Recreational Fisheries Survey Methods. 

Yet, despite its flaws, MRFSS wasn’t a hot topic among anglers for the first two decades of its existence, simply because the estimates didn’t have much real-world impact on their activities.  During that time, there weren’t too many recreational fishing regulations in place along most of the coast, something that was particularly true in the northeast and mid-Atlantic states, and anglers were generally free to fish—and to overfish—without worrying too much about what MRFSS might have to say. 

But around the turn of the century, that all started to change.

The change was heralded by the passage of the Sustainable Fisheries Act of 1996, which for the first time required NMFS to end overfishing and to rebuild overfished stocks within a time certain—usually within ten years, although under certain, specified circumstances, the rebuilding period might be stretched out.  But fisheries managers had allowed overfishing to go on for so long, and had taken so little action to rebuild overfished stocks, that they kept doing business as usual, even after the law had changed.

Then, in 2000, the United States Court of Appeals for the District of Columbia Circuit decided Natural Resources Defense Council v. Daley, and that decision shook the federal fishery management system, and in particular the regional fishery management councils and the casual approach that they had historically taken to overfishing, to its roots.

The court decided that when NMFS adopted fishery management measures, it had to adopt measures that it expected to work—or, at worst, could no longer adopt measures more likely to fail than succeed.  In response to a Mid-Atlantic Fishery Management Council-approved summer flounder management measure that only had an 18 percent probability of ending overfishing—a fairly typical thing for a council to do up until then—the court wrote

“Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service conclude that a measure that is at least four times as likely to fail as to succeed offers a “fairly high level of confidence.”

Once that decision came out, regional fishery management councils could no longer blithely allow overfishing to continue, or adopt so-called “rebuilding plans” that, in reality, had very little chance of rebuilding overfished stocks.  Instead, they were compelled to impose restrictions on commercial and recreational fisheries that had at least a 50 percent probability of preventing overfishing and rebuilding overfished stocks by the legally mandated deadline.

Suddenly, MRFSS began to matter to anglers, because it was the sole measure used to determine recreational landings, and so to set regulations that would govern recreational fishermen.

That happened at about the same time that some popular East Coast fish, most particularly summer flounder, were in the throes of rebuilding.  To make that rebuilding happen, anglers were placed under a fairly strict, and very unpopular, regulatory regimen.  It didn’t take long before such anglers--and, perhaps more to the point, the businesses anglers supported--began attacking MRFSS, claiming that the numbers were wrong, overstated recreational catch, and should be discarded.

The National Academy of Sciences report justified some of their claims—MRFSS was, in fact, badly flawed—so NMFS moved forward with a new survey, the Marine Recreational Information Program, or “MRIP,” which was intended to clear up the problems.  In that, NMFS largely succeeded.  While it still isn’t perfect, in 2017 the National Academy of Sciences gave MRIP a very positive review in its report, Review of the Marine Recreational Information Program.

But while the critics of MRFSS were right in one respect—that such survey was badly flawed—they were wrong in their assumptions that MRFSS overestimated recreational landings.  MRIP, with its improved sampling methodology, proved that just the opposite was true:  Anglers were catching far more fish than previously believed.

That had two immediate effects.  Because the higher landings implied a higher biomass that could support them, estimates of most fish stocks increased, as did both commercial and recreational harvest limits.  But because anglers were really harvesting so many more fish than previously thought, recreational regulations were often tightened as a result.

That got a lot of anglers upset, because MRIP was telling them things that they didn’t want to hear.  Thus, those anglers did what it seems that a lot of people do in these times:  Reject the verifiable facts relating to recreational landings in favor of “alternative facts” that, although largely divorced from reality, better support their views of how things ought to be.

Then they target MRIP data with the same sort of animus that they had for MRFSS, and spin some wild stories, and some absurd conspiracy theories, about both MRIP and the fishery managers who use it.

Thus, we see a Maryland party boat captain spouting off about how

“MRIP (the NOAA Marine Recreational Information Program, the way NOAA counts recreational catch data) was no good right out of the gate,”

largely because it shows that recreational landings are higher than he’d prefer to believe.

Such captain’s opinion is markedly at odds with that of the National Academy of Sciences panel that issued the report on MRIP mentioned above.  To the best of my knowledge, the party boat captain, unlike the people who wrote the report, lacks a doctorate—or a master’s degree, or any other academic qualification—in statistics, fisheries management, or a related discipline, but he nonetheless has a fairly decent Internet following that share his ravings far and wide, and have won him a bit of a following.

Those people know what they want to believe.

It’s a classic example of “confirmation bias,” which is a fancy way of saying that people will believe things, even very unlikely things, that support their existing opinions, and disregard any facts to the contrary.

It’s the same sort of thing that we’re seeing today, when millions of otherwise-rational and respectable folks have talked themselves into believing wild conspiracy theories about elections being stolen by voting machines produced by a socialist-supporting company founded by Hugo Chavez, the late dictator of Venezuela, which were programmed to send all voting results to Europe, so that they might be altered to favor Joe Biden, rather than the simpler and far more provable explanation that their candidate ultimately got fewer votes, both popular and electoral, than the other guy.

But when you don’t want to believe that your candidate lost, conspiracy theories may be all you have left.  The same is true when it comes to fisheries data.

Thus, we see an outdoor writer in Louisiana complaining that

“The federal folks use the Marine Resources [sic] Information Program, a system of estimating recreational catch, and a system decried for years by many marine biologists—including those in the pre-Gov. John Bel Edwards administration—for its lack of timely information and a seeming inability to accurately estimate the Gulf of Mexico’s red snapper stock.”

It’s hard to know where to begin when a writer doesn’t even get MRIP’s full name right—it’s “Recreational” not “Resources”—and seemingly fails to understand that the purpose of MRIP is solely to estimate recreational catch, effort, and landings, and not to estimate the size of the red snapper—or any other fish—stock.

But anglers upset over what they view as restrictive red snapper rules will undoubtedly take those words as gospel, because they say what such anglers want to hear.  Thus, those anglers will already be primed to accept his word that

“The federal folks are trying to bring the recreational catch estimate [from various state surveys] in line with their MRIP data, and there’s every reason to believe that their numbers are skewed.

“It’s been a long-held belief the first thing folks entering state and federal positions is [sic] a crash course in Bureaucracy 101 or some such number to take it to a graduate-level course.

“The course’s first lesson is preserving your job, and clinging to MRIP as the be-all, end-all of fisheries management falls somewhere in applying that first B101 chapter.

“With federal folks insisting Gulf states come in line with MRIP is akin to equipping our modern military with flintlock muskets…”

Folks opposed to current red snapper management were undoubtedly as quick to believe those words as some voters are willing to believe Joe Biden didn’t win Georgia despite three recounts that can prove he was the victor, with neither the writer nor the anglers who believe him willing to learn that the state surveys estimating recreational red snapper landings are considered “specialized surveys” that either

“have replaced MRIP general surveys…[or] are used alongside MRIP general surveys to collect data for select fisheries or during select fishing seasons,”

and that such state surveys were never intended to stand on their own, but rather are a part of MRIP

“designed to improve regional monitoring of the recreational red snapper catch and effort. 

Anglers—and perhaps the writer—might also be surprised to learn that the need for calibrating the specialized state-administered surveys with MRIP, what the above-quoted writer referred to as “bringing the recreational catch estimate” from state surveys “in line with MRIP” is not a new issue.  Nor is it, as Ted Venker, Conservation Director of the Coastal Conservation Association claimed, some sort of 

“gamesmanship”

 and an effort by NMFS to maintain

“its adversarial relationship with the states and with recreational anglers,”

an “adversarial relationship” which exists only in some folks’ conspiracy-obsessed thoughts.

Instead, the need for calibration was recognized and discussed at least two years ago.  Because MRIP and the state-administered surveys each approach data collection a little differently, the data from each needs to be put into the same statistical context—into a so-called “common currency”—before it can be combined and used in a Gulf-wide red snapper management program.

But since it appears that, at least for some states, calibration will lead to more restrictive red snapper regulations, too many anglers, and angling industry advocates, want to view it as some a sinister federal conspiracy, rather than just as good science.

Other fisheries have seen similar criticism’s of MRIP data, coming from writers, editors and anglers who are less interested in fact-based truths and more concerned with creating or believing a narrative that casts themselves as victims of a nefarious federal management system.

Yet it only takes a modicum of effort to prove that the alternative facts such folks choose to believe are not really facts at all.  The National Academy’s report is a good place to start, but folks unwilling to read a hundred or so pages of fairly dry analysis and recommendations, but willing to learn how the recreational data system really works, will find that NMFS has done an exemplary job of explaining the process in language that is readily accessible to the layman.

It has produced a number of brochures, fact sheets, infographics and videos that are designed for anglers, and explain how recreational data is gathered and used, which are all made available on a single web page.

Anyone seeking more detail on how angler intercepts—the in-person interviews and catch samples—and effort surveys are combined into catch estimates can find it on another web page, while those seeking even more detail can download the Recreational Fishing Survey Design and Statistical Methods Manual which, for those willing to do the reading, sets out exactly how the survey works.

The Bible says that

“The truth will set you free.”

That wisdom applies to all facets of life, and it thus behooves any angler wanting to be free of the unfounded rumors and conspiracy theories that cloud the issue of recreational data to take some time to seek out the truth, which is most definitely out there, and easily found simply by clicking on some of the links provided above.

Those who seek the truth not hear what they want to hear, but they’ll learn what they need to know.

 

 

 

 

 

MID-ATLANTIC RECREATIONAL FISHERIES--IS STATUS QUO THE WAY TO GO?

 The Mid-Atlantic Fishery Management Council is meeting next week; as part of that meeting, on the afternoon of Tuesday, December 15, it will hold joint meetings with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass and Bluefish management boards, to finalize recreational management measures for 2021 season.

I wish them good luck, because they’re going to need it.  As a result of COVID-19, both the Council and the ASMFC management boards are largely flying blind, lacking the data they need to make informed decisions.  The pandemic disrupted the usual pattern of waterside intercepts—the in-person surveys of anglers used to determine what kind of and how many fish they encountered and might have brought home; what little data exists on that topic won’t be released until early next year.  It also disrupted the fishery-independent surveys, conducted at the state and federal level, used to determine the health of fish stocks.

So fishery managers are going to have to make their decisions without having any current information on the health of the fish stocks they’re managing, or how many fish anglers removed from those stocks during the 2020 season.

About the only thing that they’ll know with a reasonable amount of certainty is that angler effort in 2020 was roughly the same as it was in 2019 (because the effort survey is conducted by mail, and not in person, COVID-19 didn’t materially impact its operation), meaning that they can assume that if fish availability was generally the same as it was in 2019, if the size distribution of those fish were the same in both years, if anglers maintained the same harvest to release ratio in both 2020 and 2019, if anglers targeted the same species to the same extent in both years, and if regional and seasonal effort patterns were the same this year as they were in the year before, landings levels in 2020 should approximate those in the previous season.

Unfortunately, managers don’t know any of those things for sure, so if you’ve ever run a bad inlet at night, in the fog, with all of your electronics down and only a wavering compass needle to guide you, you were roughly in the same place as Mid-Atlantic managers will be at next Tuesday’s meetings.

Because of such uncertainty, both Mid-Atlantic Council staff and the various species monitoring committees have recommended that recreational management measures for summer flounder, scup, black sea bass and bluefish remain unchanged in 2021.

The question is, does that recommendation make sense, or does greater uncertainty call for a higher level of precaution?

The answer to that question may take different forms, depending on how one values regulatory consistency, fears adopting restrictions that ultimately prove unneeded, or prioritizes the wants of the recreational industry versus the needs of fish stocks.

It also depends on which particular fishery one is talking about, for all are at different levels of abundance, and experience different levels of fishing pressure.  Scup and black sea bass, for example, are at very high levels of abundance, bluefish are overfished, and summer flounder is currently hovering somewhere between its target abundance level and the threshold that defines an overfished stock. 

In addition, none of the four species have enjoyed strong recruitment over the past few years, meaning that maintaining a constant level of harvest could be setting the stage for problems a few years down the road, if more young fish don’t enter the fishery to replace the older fish that are removed.  

It’s possible that recruitment has recently gotten better—but in the absence of fishery-independent surveys that would have detected such new recruits, managers just don’t know.

Add to that the legal requirement that fishery management measures must have at least a 50 percent probability of preventing overfishing, and the managers’ task just gets that much harder.

Thus, it’s probably not surprising that status quo became the default alternative.

Whether it was the right alternative is a difficult thing to gauge.

Summer flounder might present the best-case scenario.  As a staff memo, dated November 3, 2020 notes,

“The lack of 2020 harvest information makes it difficult to assess what management changes may be needed for 2021.  While the [recreational harvest limit] for 2021 is proposed to increase by 8% from 2020 to 8.32 million pounds, it is not known how this fishery has performed thus far in 2020 relative to the current limit of 7.69 million pounds.  Summer flounder is not overfished and overfishing is not occurring, and harvest in 2019 was very close to the 2019 [recreational harvest limit]…”

Under those conditions—an 8% increase in the recreational harvest limit, which can act as a buffer to set off against any possible overages, and a stock that is believed to be increasing (which is why the recreational landings limit was increased in the first place)—maintaining status quo in the face of uncertainty seems to be a very rational decision.

The case for maintaining the recreational status quo for scup is a little more problematic. 

Last year, the Mid-Atlantic Council and Summer Flounder, Scup and Black Sea Bass Management Board allowed 2019 recreational regulations to carry over into 2020, even though that meant that anglers would probably exceed the recreational catch limit.  While that would ordinarily be a bad thing, it could be justified in this case because commercial catches have been consistently below the commercial catch limit, and that underage was expected to set off any recreational overage and keep overall catch below the acceptable biological catch established by the Council’s Scientific and Statistical Committee.  In addition, because the scup biomass stood at approximately 200 percent of target abundance, a small overage would not pose any meaningful risk to the stock.

This year, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee stated that

“The [Monitoring Committee] agreed with the staff recommendations for status quo recreational management measures for scup in 2021.  Due to the lack of recreational harvest estimates in 2020, there are no harvest projections to compare with the 2020 [recreational harvest limit].  They also agreed that the rationale for status quo recreational management measures described at the [Monitoring Committee] meeting in 2019 for 2020 measures still holds true for 2021.  This rationale included the ongoing management response to the new understanding of the magnitude of the recreational harvest based on the new MRIP estimates as well as the healthy stock status for scup.”

Maintaining the same regulations over the course of three years, during which stock abundance steadily declined, carries with it more risk than does maintaining status quo rules for a stock that, like summer flounder, is believed to be increasing. 

From a purely biological standpoint, doing so is probably justifiable, given the health of the scup stock.  But from a legal standpoint, one should probably ask whether, and how, the Monitoring Committee and/or Council staff determined that maintaining status quo rules still provided a 50 percent chance that overfishing will not occur.

That becomes a much more relevant issue in the case of black sea bass given the fact that in 2019, the Council agreed that it would not tighten recreational management measures, even though such inaction would probably result in anglers exceeding the recreational harvest limit by 26 percent and the recreational catch limit by 23 percent, and cause the overall catch to exceed the acceptable biological catch, which supposedly sets the absolute upper bound for the combined recreational and commercial catch, by 12 percent.

Because the Council merely chose not to amend existing management measures, as opposed to recommending new rules that would have led to the acceptable biological catch being exceeded, the National Marine Fisheries Service probably didn’t open itself up to legal risk when it adopted the Council’s recommendation.

However, the 2019 Operational Stock Assessment for black sea bass predicted that the stock would decline in abundance at least through 2021, with the spawning stock biomass falling from 27,659 metric tons in 2019 to 20,379 metric tons in 2021—a 26 percent decrease in just two years—with 2,320 metric tons of the overall decrease projected to occur between 2020 and 2021.

Combine status quo regulations, that were already projected to cause the acceptable biological catch to be exceeded this year, with a shrinking spawning stock biomass, and the risks of overfishing increase.  It’s notable that nowhere in the staff or Monitoring Committee recommendations is there an explicit statement that the status quo rules have at least a 50 percent chance of preventing overfishing.

Maybe they do meet that legal standard, but before moving forward with status quo rules, it would be nice to know for sure.

But the greatest cause to question the wisdom of status quo rules arises in the case of bluefish, a stock that is already overfished.  The Bluefish Monitoring Committee stated that it

“revisited the methodology used last year to project 2020 landings to provide the Council and [ASMFC’s Bluefish Management] Board with analysis on potential 2021 recreational landings.  In October 2019, the Council and Board determined that 2018 recreational landings (13.27 [million] lbs.) served as an appropriate projection of 2020 landings despite the [Monitoring Committee] recommendation to use a 3-year average of harvest.  The 2020 recreational measures (3 and 5-fish bag limit) were implemented to restrict harvest by 28.56% to achieve the 2020 [recreational harvest limit] of 9.48 [million] lbs.   For 2021, the [recreational harvest limit] has been further reduced to 8.34 [million] lbs, indicating that a 12.03% reduction in landings may be necessary to constrain harvest to the lower [recreational harvest limit].

“To project recreational landings, the [Monitoring Committee] typically uses the most recent 3-year average of landings.  The 2017-2019 average landings (20.30 [million] lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 [million] lbs.  This landings methodology indicates a potential 73.86% overage of the 2021 [recreational harvest limit] of 8.34 [million] lbs…  [emphasis added]”

The Bluefish Monitoring Committee failed to state whether it was comfortable that, even with such an overage, maintaining status quo recreational management measures would provide at least a 50% probability that overfishing would not occur, but given that the commercial fishery is expected to land just about all of its quota, the odds of overfishing occurring would intuitively seem to be fairly high.

Hopefully most folks would agree that overfishing an already overfished stock is both a bad idea and bad fisheries management.  Even with all of the uncertainties surrounding the 2020 data, in the case of bluefish, the recommendation to stick with status quo measures appears to be questionable, at best.

Yet, however questionable it might be, it is unlikely that anyone on the Council or Bluefish Management Board will choose to question it, as the both bodies have been drifting away from conservative management over the past few years, and electing options that maximize landings in the short term.

That trend will probably continue on Tuesday, although in the case of bluefish, and maybe black sea bass as well, there are good reasons why it should not.

 

WHAT MIGHT BE NEXT FOR ALASKA'S BRISTOL BAY?

 On November 25, the Army Corps of Engineers denied a permit application for the so-called Pebble Mine, which the Pebble Limited Partnership had hoped to develop in the headwaters of Alaska’s Bristol Bay. 

The New York Times described the denial as

“likely dealing a death blow to a long-disputed project that aimed to extract one of the world’s largest deposits of copper and gold ore, but which threatened breeding grounds for salmon in the pristine Bristol Bay region.”

The Times, noting that the Corps of Engineers denied a permit that was “critical” for the mine to clear Clean Water Act scrutiny, quoted Colonel Damon Delarosa, Commander of the Corps’ Alaska District, who said that the Pebble Mine was

“contrary to the public interest,”

and that

“it does not comply with Clean Water Act guidelines.”

Fishermen and conservation advocates heralded the denial. 

Chris Wood, the president and CEO of Trout Unlimited, said that

“The Corps denial of the permit for Pebble Mine is a victory for common sense.  Bristol Bay is the wrong place for industrial-scale mining, and we look forward to working with the people of the Bristol Bay region, Alaska’s Congressional delegation, the state, and other partners to permanently protect Bristol Bay and its world class victories.”

Nelli Williams, Trout Unlimited’s Alaska director, even went a little farther, saying

“The denial of Pebble’s permit is a victory for American jobs, rural communities, and a fishing and hunting paradise long threatened by this shortsighted and reckless proposal.  With this behind us, the people of Bristol Bay can start the work of ensuring the region is protected into the future from threats.”

But is the Pebble Mine truly “behind us,” or is the denial of the permit application merely one more step in a dance that has gone on for over a decade, and has caused conservationists to both exalt and despair, in turns, as past victories were overturned, new threats arose and, now, those threats, too, appear to have been defeated?

It’s difficult to say with any certainty.

Tom Sadler, assistant director of the Marine Fish Conservation Network, recently penned a blog in which he called the denial

“a possibly fatal wound to the Pebble project,”

and openly wondered whether investors would be willing to provide that project with further funding.  But he also noted that the Pebble Mine’s

“backers are seemingly relentless in their desire to push forward.”

Recognizing the fact of their relentlessness, just what could such backers do to again bring Pebble Mine back from the dead?

The first and easiest step might be to simply amend their application to address the Corps of Engineers’ objections, and then reapply.

The Corps of Engineers’ announcement of the initial application’s denial stated, in part, that

“This administration supports the mining industry and acknowledges the benefits the industry has provided to the economy and productivity of this country, from job creation to the extraction of valuable resources, which are especially important as we recover from this pandemic.  The Pebble Mine project has the potential to fulfill all of those needs; however, as currently proposed, the project could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation…

“Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under Section 404 of the Clean Water Act…  [emphasis added]”

It’s repetition of the phrase “as currently proposed” could be read as an invitation to the Pebble Limited Partnership to reapply to the Corps for approval, after amending the application to take account of the Corps’ stated concerns.  But the announcement’s opening words, that “This administration supports the mining industry,” could also be read as a warning that, if the Pebble Limited Partnership wanted to maximize its likelihood of success, it ought to act quickly, so that any new application could be acted upon before president-elect Joe Biden, who has expressed his opposition to the Pebble Mine, in inaugurated at noon on January 20, 2021.

Yet even if Pebble Limited Partnership submitted a new application quickly, there’s no guarantee that such application would receive more favorable treatment than the last one, or that there would be sufficient time left in the Trump administration’s tenure to allow the application to be considered and approved. 

Right now, it appears that rather than submit a new application, Pebble Limited Partnership will instead appeal the Corps’ decision to the Corps’ Pacific Ocean Division’s Engineer, who is headquartered in Hawaii.  The Partnership has 60 days to submit such appeal.

However, 60 days after the disputed decision was handed down, Joe Biden will be President of the United States, making it unlikely that such an appeal will be successful.

That means that the appeal will serve mainly to exhaust Pebble’s possible administrative remedies, and so allow it to pursue its next possible course of action:  litigation.

While the federal agencies’ decisions are often challenged in court, most of those challenges fail. Courts may not substitute their judgement for that of the agency; they may only determine whether an agency decision meets certain minimum standards.  Among other things, an agency decision can be legally challenged if a court finds it to be arbitrary, capricious, an abuse of discretion, or otherwise contrary to law; unconstitutional; not authorized by statute; made without following proper procedure; or unsupported by substantial evidence.  Usually, in most administrations (the Trump administration being a very notable exception), agencies are careful to have their counsel review regulations before issuing them, to be sure that such standards are met.

However, the Pebble Mine record isn’t completely straightforward.  In 2014, under President Barak Obama, the Environmental Protection Agency found that the Pebble Mine

“would likely cause irreversible destruction of streams that support salmon and other important fish species, as well as extensive areas of wetlands, ponds and lakes,”

and halted development of the mine due to Clean Water Act concerns.

The mine’s developers sued, challenging the EPA’s actions.  That litigation was pending when Trump found his way to the White House.  Shortly thereafter, on May 1, 2017, his chosen EPA administrator, Scott Pruitt, met with the CEO of Pebble Limited Partnership.  About an hour after that meeting began, Pruitt instructed his staff to reverse the permitting halt put in place during President Obama’s term, and to allow the process to move forward.

Again, there were some stops and starts, but on July 30, 2019, the EPA announced that the regional administrator with jurisdiction over the Bristol Bay region had formally withdrawn the 2014 determination halting the permitting process.  Saying that

“the 2014 Proposed Determination…was issued preemptively and is now outdated,”

the Trump EPA allowed the process to continue.  On July 24, 2020, the Army Corps of Engineers released the final environmental impact statement for the project, which found that the project would not cause substantial harm to the fisheries of the Bristol Bay watershed.

That environmental impact statement seemed to open the door to a permit for the Pebble Mine, but just a month later, the Corps took a step back, announcing that because the mine

“would result in significant degradation to…aquatic resources,”

Pebble Limited Partnership would have to offer a plan to mitigate the mine’s damage to such resources before the permitting process could move forward, with the Corps stating that

“in-kind compensatory mitigation within the Koktuli River Watershed [which would have been most affected by the mine] will be required to compensate for all direct and indirect impacts caused by discharges into aquatic resources at the mine site.”

While that sounds fine on its face, there was one big problem—the Bristol Bay Watershed, which includes the Koktuli River Watershed, is in such good condition now, that it would probably be impossible to make any improvements to it that could be offered as mitigation for damage caused by the mine.  As Joel Reynolds, Senior Attorney for the Natural Resources Defense Council said in reaction to the mitigation requirement,

“It’s a perfectly functioning pristine, natural ecosystem.  It’s an incubator for trillions of salmon over thousands of years, and the notion that Northern Dynasty (Pebble’s parent company) has anything to offer it in terms of improvement is ridiculous.”

Thus, it probably isn’t surprising that the mitigation measures proposed by Pebble Limited Partnership in its permit application were deemed inadequate, and the application denied, by the Corps.

It also wouldn’t be surprising if Pebble didn't try to use the seemingly contradictory actions taken, over the years, by President Obama’s and by Trump’s administrations, to argue that the government was acting in an arbitrary and capricious manner when it ultimately rejected Pebble’s application.

Maybe a court would buy that argument.  Maybe it would be rejected.  But the fact that two Supreme Court justices, Clarence Thomas and Neil Gorsuch, and probably Amy Coney Barrett and Brett Kavanaugh as well, seem to disfavor the so-called “Chevron doctrine,” which requires courts to give deference to agency interpretations of the statutes which they are empowered to administer might encourage Pebble to litigate the matter as far as the courts will allow.

Thus, while the most recent rejection of the Pebble Limited Partnership’s permit application was certainly good news, it is not enough to guarantee the integrity of the Bristol Bay watershed.  Greater protections are needed.

Tim Bristol, executive director of SalmonState, a commercial fishing group, seeks additional administrative relief.  He has stated that

“The critical next step is to reestablish the Clean Water Act protections for America’s greatest salmon fishery—protections that should never have been done away with in the first place.  This can and should be an early priority for the Biden administration.”

Katherine Carscallen, executive director of Commercial Fishermen for Bristol Bay, is seeking a legislative solution, saying

“we’re focusing on the next step of working with Sen. [Lisa] Murkowski and everyone else who said they support permanent protections for the region.”

That “everyone else” would presumably include Sen. Maria Cantwell (D-WA), who recognizes the continued threat posed by the Pebble Mine and has called for additional protections that will prevent it from being developed.

Hopefully, advocates for Bristol Bay will continue to work with federal legislators and with the incoming Biden administration to assure that such protections are put in place.  For without them, the Bristol Bay watershed, and the salmon and other natural resources of the region, will never be truly safe.

 

 

 

 

 

 

 

 

 

 

UNITED STATES, EUROPEAN UNION AGAIN FRUSTRATE MAKO CONSERVATION EFFORTS

 

One day last July, two friends, two Stony Brook University researchers, and I were drifting maybe 10 miles south of New York’s Fire Island, chumming for sharks in about 20 fathoms of water.  We were fogged in; not in a real pea soup fog that hides even the floats attached to the lines, but in stuff that was just thick enough to limit visibility to maybe 150 yards.

Four whole mackerel hung in the chum slick, the nearest right under the boat, the most distant maybe 50 yards away.  The drift was slow, and the morning had been quiet, but right around noon one of the reels clicked as a fish moved away with a bait.

A big blip on my radar had first claim on my attention; the drift was so slow and uncertain that the bow of the boat kept swinging back and forth in what was at least a 90 degree arc, making it impossible for me to figure out just where the other vessel was heading, so I wasn’t giving much regard to what my four anglers were doing.  They all had big-fish experience, and if it looked like there was going to be any problems, I figured that they’d let me know.

But as I monitored the progress of the other, fog-obscured vessel, I was vaguely aware of a sort of “I’ve got it” ”It might be gone…” ”No, it’s still there” kind of conversation going on behind me, until somebody yelled “It’s a little mako!” and I finally tore my eyes off the radar’s CRT screen long enough to spot the smallest shortfin mako shark that I’ve ever seen swimming alongside my boat.

It was 73 centimeters—about 28 inches—long, and why it thought that it could eat a whole mackerel, and how it managed to get the #18/0 circle hook into its mouth, I don't know.  But somehow it got itself hooked, and a very short while after I was finally sure that the ship on my radar was going to pass safely, more than a half-mile away, the researchers finished taking their measurements, collecting their samples, and implanting their tag, and allowed the little mako to dart back into the depths.

And in that moment, they accomplished more for shortfin mako conservation than the United States, the European Union, or the International Commission for the Conservation of Atlantic Tunas, managed in all of this year.

There were hopes that things would be different.

Last year, scientists at ICCAT released an updated shortfin mako stock assessment, which revealed that

“spawning stock fecundity, defined as the number of pups produced each year, will continue to decline until approximately 2035 even with no fishing, because the cohorts that have been depleted in the past will age into the mature population over the next few decades (the median age at maturity is 21 years)…

“For [two runs of a population model that made slightly different assumptions], a [total allowable catch] of between 800-900 [metric tons], including dead discards, resulted in a >50% probability of…the joint probability of [a fishing mortality rate that is below the rate that results in maximum sustainable yield] and [spawning stock fecundity that is above the fecundity level necessary for the shortfin mako stock to produce maximum sustainable yield] by 2070.  [Another model run], which assumed a low productivity stock-recruitment relationship, showed that only [a total allowable catch] between 0 and 100 [metric tons] (including dead discards) resulted in a >50% probability of [achieving the desired result] by 2070.”

Since whatever remains of my body will be 116 years old in the year 2070, and well on its way to fertilizing the ecosysten from whence it came, I’m never going to see a healthy shortfin mako population again, but it would be nice to think that whoever is stalking my old grounds in that year might be able to do so.  However, it seems that the United States and European Union are doing their best to see that even that doesn’t happen.

Last year, they both objected to, and so effectively blocked, a proposal sponsored by Canada and Senegal to ban shortfin mako landings, and thus eliminate all commercial incentive to target and harvest  the species.  Because of the U.S. and E.U. objections, ICCAT agreed to extend its current shortfin mako management measures through 2020, when it would take up the issue again.

So on October 30, 2020, Canada and Senegal again submitted a proposal to ICCAT, which would have prohibited all landings of shortfin makos in the North Atlantic.  Even fish that were dead when brought to the boat would have to be discarded.  The only exception to that rule applied to vessels registered in nations which required that all such dead fish be landed; in the case of such vessels, the Senegalese/Canadian proposal allowed such landings, provided that the dead makos could not be sold for profit.

Such proposal took away any incentive for targeting makos, and drew support from the United Kingdom which, for the first time in many years, was present at ICCAT as an independent nation, rather than as a member of the E.U.  However, the United States and European Union were still adamant in their opposition to any measure that didn’t allow fishermen to land and sell at least some of the makos that they caught, so the ICCAT again failed to reach a binding agreement again this year.

Instead, the Commission kicked the can down the road, to be revisited once again toward the end of 2021.

Although disappointing, the ICCAT’s failure to reach an accord wasn’t surprising, as the United States had the same conservation-adverse administration running the country that it had in 2019, while a European Union without the U.K.’s often moderating voice would likely be even more opposed to a landings ban.

What was surprising was that, although the U.S. and E.U. were agreed on opposing the landings ban, they disagreed on other important issues.

Unlike the Senegalese/Canadian proposal, which would have reduced the total allowable catch of shortfin mako in the North Atlantic to zero, the United States’ proposal would have established a 700 metric ton annual catch limit in 2021, which would be further reduced to 500 metric tons in 2022 and subsequent years.  Although the U.S. proposal generally required all vessels to release all shortfin makos that came to the boat alive, it created three exceptions to that general rule.  Under the proposal, makos might be retained if

“a) the shark is dead at haulback, and the vessel has an observer or electronic monitoring system on board to verify the condition of the shark; or

b) [the nation where the boat is registered] requires a minimum size of at least 180 cm fork length for males and of at least 210 cm fork length for females; or

c) [the nation where the boat is registered] prohibits North Atlantic shortfin mako fisheries and requires all dead fish be landed and that the fishermen shall not draw any profit from said fish.”

While the U.S. proposal would reduce mako landings, its exceptions to the landings ban would perpetuate exceptions created by ICCAT in 2017; in doing so, it would both continue to provide commercial incentive for targeting, or at least not avoiding, shortfin makos, and would also continue to allow some level of harvest in the recreational mako shark fishery.  Thus, it would probably have little impact on the U.S. mako shark fishery.

At the same time, the U.S. proposal contained some worthwhile language, that might have reduced shortfin mako bycatch, and some level of dead discards, saying that

“[ICCAT member nations] shall require that vessels in their longline fisheries use nylon monofilament leaders and large circle hooks, which are fishing hooks with the point turned perpendicularly back to the shank to form a generally circular or oval shape, and the point of the hook is not offset by more than 10 degrees.”

It’s hard to say how many dead discards such rule would have prevented, had the U.S. proposal been adopted. 

U.S. longliners targeting swordfish and tuna already tend to use monofilament leaders, and that doesn’t prevent them from hooking and killing makos, which can easily be gut-hooked on the J-hooks that are often employed (I usually catch a few sharks each season that had been previously hooked on longlines, were cut loose, and still have the longline hook stuck in their jaw, often accompanied by an excessively long piece of monofilament leader). 

Requiring a circle hook would make it more likely that a shark would be hooked in the jaw, which is, in itself, a good thing, but would largely negate any benefit in using a monofilament leader, as it would make it much less likely that the shark would bite through and get away; I know charter boat captains who have abandoned wire leaders completely, have gone to straight mono, now that circle hooks are required in the Atlantic recreational shark fishery, and claim that even larger sharks aren’t biting through their leaders and escaping.

The fact that the U.S. proposal would have allowed circle hooks offset by 10 degrees also raises questions.  Offset circle hooks are currently outlawed in the recreational Atlantic shark fishery in the U.S. because they gut hook more fish than non-offset hooks do, so it’s difficult to understand why the U.S. would allow such hooks in the international longline fishery.

Taken as a whole, it would seem that any benefits of the proposed U.S. gear restrictions would be more illusory than real.

The European Union’s proposal would also reduce landings to 500 metric tons, and would limit those landings to fish that were dead when brought to the boat, thus differentiating itself from the U.S. proposal, which would also permit the harvest of fish that exceeded ICCAT’s current minimum size.  Like the U.S. proposal, the E.U. proposal would only allow vessels with observers or electronic monitoring systems on board to land shortfin makos.

Unlike the U.S. proposal, the E.U. proposal clearly favored the commercial fleet over the recreational sector.  Not only would it have prohibited recreational fishing vessels from landing any shortfin makos at all (which isn’t unreasonable, given that makos hooked by recreational vessels are always alive when brought alongside), but it would also have required 20% observer coverage on recreational vessels by the year 2023.  Such requirement would not only have imposed intolerable costs on the average recreational fisherman, as boats are generally required to pay the full costs of any observers that they carry, but would also have created a practically impossibile situaltion, for where would NMFS find enough qualified observers to cover 20% of all of the recreational boats, both private and charter, fishing for sharks off the U.S. East Coast on a pleasant weekend in late June?

The E.U. proposal would have hit the United States far harder than other ICCAT member nations, as the U.S. has a far larger recreational shark fishery than does the European Union.  But the E.U. has a long history of trying to shift its conservation burden onto other nation’s shoulders, as has been previously illustrated by the positions that it’s taken on Atlantic bigeye tuna in recent years.

The bottom line is that, although there are many nations, led by Senegal and Canada, which are attempting to bring meaningful conservation measures to bear on North Atlantic shortfin mako, neither the U.S. nor the members of the European Union are among them, and the mako is suffering as a result.

Hopefully, that will change in 2021, with an incoming Biden administration changing U.S. policy with respect to the species.  But hope is not a plan, and once the new administration has placed its nominees in charge of NMFS and NOAA, those concerned with the mako’s fate would do well to give those nominees a gentle—or, perhaps, not-so-gentle—nudge in the right direction.

Because there will always be those who fight for the status quo.