THE ANGLER AS FATALIST

 No one should have been surprised when the striped bass stock collapsed in the late 1970s.  The warning signs were all there.

After a record-high year class in 1970, the juvenile abundance index for the Maryland portion of Chesapeake Bay—the single most important striped bass spawning ground on the coast—began to decline.  By 1980, it was in free fall.  Three of the five lowest abundance indices on record were recorded in 1980, 1981, and 1983.  1981’s index of 1.22 was the lowest recorded in a time series going back to 1957; it held that dubious distinction until 2012, when the juvenile abundance index fell to a disheartening 0.89.

The lack of recruitment had the predictable impact on the striped bass stock.  Older fish, hammered by what were effectively unrestricted commercial and recreational fisheries (and there was really little distinction between the two back then; commercial licenses had not been adopted by most coastal states, and supposedly “recreational” fishermen regularly sold their excess catch), were killed with no thought for the future, and with few young bass entering the population, collapse was inevitable.

But even after the stock collapsed, striped bass fishermen kept fishing.  In a few places, most notably Block Island and parts of Cape Cod, there were enough big fish available that many fishermen still refused to admit that the bass were in trouble. 

Along the rest of the coast, most harbored no such illusions, but we went fishing anyway, because we were striped bass fishermen and that’s what we did.  Day after day after day (or, because we’re talking about bass, perhaps it was night after night after night), striped bass anglers kept tossing their lures into a largely empty sea.

Once in a while, someone caught a fish, and some of those fish were large.  But for the most part, we headed out to the beaches and boats knowing that the odds were dead set against us.  Striped bass might not have been in quite the same category as unicorns and bigfoot, but by the early ‘80s, they weren’t too much easier to find.

Yet we fished.  Once in a while, we even caught a bass, and when we did, we usually released it, wondering when, and if, we’d manage to catch another.  But that uncertainty never stopped us from heading out the next day.

I thought of those times a couple of weeks ago, when I heard one of the speakers at the Saltwater Recreational Fishing Summit declare that

“Anglers are optimists.”

Maybe that’s true of young anglers, and new anglers, and anglers fortunate enough to live in those rare places where fish are abundant and well-managed.  But for those of us who have been on and around the water for a few decades, and have seen good fishing and bad fishing, and everything in between, I don’t believe that the “optimist” tag applies. 

We’re fatalists, who fish because we have no desire to play golf or tennis, don’t go to theme parks, and can’t see ourselves wasting time in a football stadium when the cold fronts blow and bait is moving down along the coast.

We fish, because we have little desire to engage in more trivial things.  The ocean, the air, and the hunt touches us in a way nothing else can.  So we venture out even when we know that the trip may be—probably will be—fruitless. 

That’s not optimism. It’s fatalism, which for some can be mixed with desperation.  

Such desperation manifests itself in folks who pour their money into faster, longer-ranged boats, loaded with electronics, that they hope might help them to find the last outposts of fish that once teemed just outside—and sometimes within—their marinas.  They seek the newest, most efficient gear, made of the most modern materials, in the hope that, so outfitted, they can glean one or two of the same fish that their grandparents caught, by the bushel, with handlines.

Though, I suppose, desperation might be a twisted sort of optimism, the sort of optimism that says “If I only spend another few thousand on electronics and gear, maybe I’ll be able to catch some fish.”

Although we fatalists might tell them not to bet too much on such an outcome.

Instead of financing false hopes, we chase memories.  In my case, those memories look a lot like weakfish.

Weakfish have long supported boom-or-bust fisheries.  Just what causes the boom-and-bust is still open to debate.  When the fish disappeared shortly after the close of the Second World War, many blamed the disappearance on a blight that decimated eelgrass beds during the 1930s.  Weakfish stayed scarce until the late 1960s, then hung around at greater or lesser levels of abundance for the next 30-plus years before crashing again.  The decline seemed to be linked to some unspecified source of natural mortality rather than fishing, with a 2009 stock assessment noting that

“Projections for this stock present a very bleak picture, where even under a moratorium of fishing the stock is unlikely to recover rapidly to anywhere near what one could describe as safe biological conditions.”

Yet for reasons that I can’t even try to explain, because I don’t quite understand them myself, I love to fish for weakfish.  So around the beginning of May, when lilacs are starting to bloom, I still end up somewhere on Great South Bay, probing the edges and channels, hunting for a different species of unicorn than I sought forty years ago but, up until a few years ago, when weakfish numbers began to rebound, I was hunting unicorns just the same.

I went out not expecting to find them, although once in a while I did, but because it was May, and weakfish season.  It would have been sacrilege not to try.

Thus, at last month’s Summit, I just shook my head when the same panelist who came up with the “anglers are optimists” statement suggested that if striped bass (and, by extension, weakfish or any other desired but absent species) isn’t available, anglers should be happy to go fish for catfish or other, less appealing things—that we should settle for less because fishery managers have failed to conserve the species that we value most.

To insinuate that all fish are the same, and that anglers in the Chesapeake Bay—which is where the panelist in question came from—should be happy catching hulking, invasive blue catfish, which are essentially no more than a trash can with fins, instead of native striped bass, is to denigrate the value of healthy native fish stocks, and devalue the angling experience.

It is better to seek unicorns, knowing that such quest will fail, than to abandon the quest altogether.

But it is better yet to spend time not only pursuing one’s dream, whether that dream takes the shape of a striped bass, weakfish, or shortfin mako, but in making such dream a reality.  

If I can be accused of any optimism at all—a trait that I will stubbornly deny—it is not in my role as an angler, but as an advocate, who believes that if enough people spend enough time engaging with fishery managers, they can push the management process in the right direction.  

Yet even there, fatalism plays its role.

For in some places, in some fisheries, managers seem to be elevating fishermen’s calls for increased short-term landings above the resource’sneed for peer-reviewed science and management based on the best available data.  Traditional conservation advocates have seemingly abandoned their former role of watchdogs protecting the management process, in favor of higher profile, and more heavily publicized, campaigns focusing on “30x30” protected areas.

To the fatalist, it can seem as if good fishery management is spiraling down the same path as good fishing.

But just as we chased striped bass and weakfish in the depths of their declines, knowing that failure was the likely end, the fatalist fishery advocate can go into a fight expecting to lose, while doing all he or she knows how to do to prevail.

And once in a while, as with bass in decades past, we might just catch a unicorn.

 

 

 

MID-ATLANTIC FISH STOCKS: WHEN POLITICS DRIVES THE PROCESS

 Tomorrow, the Atlantic States Marine Fisheries Commission will be holding a webinar/hearing on the proposed “Recreational Harvest Control Rule.”  I probably should listen in, and perhaps provide comment, but I haven’t registered for the webinar yet, and I’m still not sure that I will.

Usually, I comment on management proposals out of a long-held belief that public input, if well-thought out and properly presented, can have a meaningful effect on the management outcome.  I’ll admit that, at times, trying to move the management process feels a lot like banging my head against a brick wall.  But over the years, I have also had regulators ask for my thoughts on various proposals and mention testimony I made at hearings some weeks after the fact, indications that public input was being heard and valued. 

And anyone who sat in on the May 2021 meeting of the ASMFC’s Atlantic Striped Bass Management Board knows that many Management Board members, in deciding what provisions should appear in the first draft of Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, referenced public comment as a major consideration driving their decisions.

That’s how the fishery management process is supposed to work, with science shaping the management options and the public—the ultimate owner of all the nation’s living marine resources—shaping the policy decisions that determine which of the various science-based management measures will ultimately be adopted.

Unfortunately, the fishery management process also has a political component, and when politics ends up driving that process, both good science and good public policy often end up riding in the back seat, where they can be all too easily forgotten and ignored.

That seems to be what’s happening with the Recreational Harvest Control Rule.

I’ve written about the Control Rule before, most recently five weeks ago, when I noted that it was being rushed through the approval process and an unreasonably fast pace.

That’s what happens when politics takes control.  And we should have no doubt that politics, and representatives of the recreational fishing industry, rather than representatives chosen by recreational fishermen, is driving the Control Rule process.

The history of the Control Rule arguably dates back to federal legislation called the Modernizing Recreational Fisheries Management Act of 2018—better known as the “Modern Fish Act”—which was largely an effort by various angling industry and industry-affiliated organizations to find a way to kill more red snapper in the South Atlantic and Gulf of Mexico than was possible under existing law.

In an effort to circumvent legally-mandated annual catch limits that restrict recreational red snapper landings to sustainable levels, the Modern Fish Act amended the Magnuson-Stevens Fishery Conservation and Management Act by, among other changes, adding a finding that

“While both provide significant cultural and economic benefits to the Nation, recreational and commercial fishing are different activities.  Therefore, science-based conservation and management approaches should be adapted to the characteristics of each sector.”

To further that finding, the Act added another amendment that gave regional fishery management councils

“the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulations, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component.  [emphasis added]”

However, the Modern Fish Act also made it clear that the existing provisions of Magnuson-Stevens that required regional fishery management council actions to prevent overfishing, timely rebuild overfished stocks, establish binding annual catch limits, and require fishermen to be held accountable for exceeding their catch limits remained in full force and effect.

While the effort to undermine federal red snapper management was unsuccessful, it probably isn’t surprising that many of the same affiliated recreational fishing industry organizations—the American Sportfishing Association, Center for Sportfishing Policy, Coastal Conservation Association, Congressional Sportsmen’s Foundation, National Marine Manufacturers’ Association, and Recreational Fishing Alliance—sought another opportunity to undermine Magnuson-Stevens’ disciplined, science-based management process, perhaps hoping that if “alternative” management measures could be established in any recreational fishery, anywhere in the country, that precedent might allow them to convince southern fishery managers to place less emphasis on annual catch limits and excessive recreational landings in the southeastern red snapper fisheries.  Thus, such organizations proposed what has now become the Recreational Harvest Control Rule in the Mid-Atlantic.

Mid-Atlantic fisheries were particularly vulnerable to such an effort, as there was wide discontent, particularly among the party boat fleet, with the Mid-Atlantic Fishery Management Council’s approach to black sea bass management.  While spawning stock biomass was well over twice the target level, indicating a more-than-healthy stock, recreational management measures were growing steadily more restrictive due to the high level of recreational fishing effort and the resulting high landings, a situation that was tailor-made for industry spokesmen who sought to inflame opinion against the federal fishery management process.

At first, it didn’t appear that the industry’s proposed control rule was going to go very far.  As noted in the transcript of the May 2020 meeting of the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board,

“One really important issue that the [Mid-Atlantic Council’s Fishery Management Action Team] highlighted was it doesn’t seem like this approach as described would be necessarily feasible under the current Magnuson requirements for catch limits and accountability measures.”

Thus, many of the traditional advocates of science-based fishery management were lulled into complacency, believing that the Control Rule was headed for a dead end.  The industry, however, worked with both the National Marine Fisheries Service and the Atlantic States Marine Fisheries Commission to come up with revisions to its original proposal that might, in theory, satisfy Magnuson-Stevens’ requirements.

It’s far from impossible that one or more of the Recreational Harvest Control Rule proposals will fully meet the legal standards imposed on federal fishery managers.  The problem is that, because the Control Rule effort has been hijacked by politics, the process is being rushed toward completion before the scientific merits of the Control Rule have been fully explored; the public is being asked to comment on management proposals without being given the information needed to know how such proposals will impact the long-term health of managed fish stocks.

Which is why I’m not sure that I’m going to participate in tomorrow’s public hearing.  I lack the information that I need to make informed comment.  It’s clear that the only other comment that I could make—that the process ought to slow down until the public can be fully informed, and is able to make intelligent comment—would be completely ignored, overridden by the political desire to have the Control Rule in place before the 2023 fishing season.

Neither state nor federal fishery managers want to adopt regulations that would further restrict black sea bass fishermen, even if 2022 recreational landings far exceed the recreational harvest limit for the year.  That message came through loud and clear when the Mid-Atlantic Council and the ASMFC’s Interstate Fishery Management Program Policy Board met last February; members’ concerns about moving too quickly were swiftly dismissed by other members’ deep reluctance to adopt more restrictive 2023 rules.

So, as I mentioned in the blog that I published in March, both the Council and the ASMFC seem Hell-bent on approving the Control Rule for the 2023 season, despite the fact that models deemed “critical” to the Control Rule will not be ready by that time, with one ASMFC representative justifying such haste by explaining—if that’s the right word—that such models were

“critical, not required.”

That sort of attitude, which prioritizes getting the Control Rule done quickly, rather than getting the Control Rule right, has characterized the entire Control Rule process.

Tomorrow night, New York stakeholders will be asked to comment on four possible approaches to the Control Rule.  In making their comments, they will be relying on the ASMFC’s Draft Omnibus Addendum to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and Bluefish Fishery Management Plan, which sets out the four approaches in detail.

Such draft addendum informs stakeholders that one option, the “Percent Change Approach,” differs from current management in that

“it includes additional consideration of biomass compared to the target level (B/B_msy) when determining if the recreational management measures should be liberalized, restricted, or remain unchanged.  The amount of change varies based on the magnitude of the difference between a confidence interval (CI) around an estimate of expected harvest and the average [recreational harvest limit] for the upcoming two years, as well as considerations related to biomass compared to the target level (B/B_msy).”

It then goes into more detail explaining how the approach works.

The draft addendum then goes on to describe the “Fishery Score Approach,” explaining

“The fishery score is a formulaic method that combines multiple metrics into one value which is used to determine the appropriate management measures.  Based on the score, the stock would be placed in one of four bins with corresponding management measures.  The fishery score would be based on four metrics: biomass (B) relative to the target (B_msy), recruitment (R), fishing mortality (F), and fishery performance…Each metric has a weight assigned to it, determined by the Technical/Monitoring Committee such that metrics with a stronger relationship to harvest would have more weight in the fishery score while still accounting for metrics that impact harvest but may not drive harvest.  Additional metrics may be added and weighting schemes adjusted as more data become, [sic] based on the recommendations of the Monitoring/Technical Committees.”

Again, more details of how the approach would work were provided.

Then there was the “Biological Reference Point Approach.”

“Under this option, the primary metrics of terminal year B/B_msy and F/F_msy from the most recent stock assessment would be used to guide selection of management measures.  Management measures would be grouped into seven bins…Each bin would have a set of default measures which would be implemented the first time the stock in placed in that bin.

“To define the bins under this option, fishing mortality (F) would be considered in two states:  overfishing (F greater than F_msy) or not overfishing (F equal to or below F_msy).  B/B_msy would be further divided to provide more responsive levels of access based on the following:

·        Biomass is greater than or equal to 150% of target.

·        Biomass is greater than or equal to the target but less than 150% of target.

·        Biomass is less than the target, but greater than or equal to the threshold (the threshold is ½ the target).

·        Biomass is less than the threshold (the stock is overfished).

“Recruitment and trends in biomass are secondary metrics under this option which are used to fine tune the default measures only when stock conditions (F/F_msy and B/B_msy) relative to the categories above have not changed between the prior and most recent assessments.  In this case, biomass trend and a recruitment metric…can be used to further relax, restrict, or re-evaluate measures.  As such, biomass trends and recruitment would impact the management measures, but to a lesser extent than F/F_msy and B/B_msy.”

I’m sure that, to most anglers and other stakeholders planning to comment on the draft addendum, such explanation, and the details that followed, made the merits of this approach perfectly clear…

Finally, there is the “Biomass Based Matrix Approach.”

“This option uses a matrix to set recreational measures based on two factors:  B/B_msy and the most recent trend in biomass (increasing, stable, or decreasing)…Using these two factors and four parameters for each…provides a three-by-four matrix to determine the appropriate management measure bin.  Bin A represents the optimal conditions, while Bin F represents the worst conditions.  Certain pairs of conditions (e.g., a healthy stock that is increasing or an abundant stock with any biomass trend) are treated as equivalent to reduce the number of bins to six.”

Based on those four descriptions, supported by pages of additional details, do you believe that you could pick the best management approach to use for the Control Rule?  Do you believe that the average stakeholder attending the hearing could do so?

I do my best to stay on top of the fishery management process, and think that I have a pretty good layman's understanding of the science underlying management issues, but I freely admit that I have no idea how to compare the merits of each possible Control Rule approach.

I suspect that the people who developed the four approaches couldn’t explain their relative merits, either.

I harbor that suspicion because I took the trouble to ask. 

When I attended the Saltwater Recreational Fishing Summit a couple of weeks ago, I happened to run into a member of the Mid-Atlantic Council staff who was very familiar with the development of the Control Rule, along with a NMFS staffer who was also involved with the development process.  Over the course of our conversation, I expressed my view that the process was being rushed along far too quickly, and asked a few questions that the other folks could not readily answer.

The NMFS staffer tried to justify the undue haste by parroting the Modern Fish Act argument that recreational and commercial fisheries are different, and should be managed differently. 

I don’t disagree with the staffer’s assertion. 

The problem is that the biggest difference between the two sectors is that commercial landings are reported by every commercial fisherman, confirmed by reports filed by the fish buyers, and can be tabulated in near real time, making commercial data both accurate and timely.  Recreational landings data, on the other hand, are derived from the Marine Recreational Information Program surveys, and thus necessarily contain a significant degree of uncertainty.  

Because of such management uncertainty, recreational fisheries should be managed more conservatively, to account for the inevitable errors.  But the Recreational Harvest Control Rule does just the opposite, creating greater opportunities for the recreational fishing sector to exceed its catch limits, while the commercial fishing sector, despite its far less uncertain data, is held to hard quotas and mandatory pound-for-pound paybacks of any overages.

The 2000 federal appeals court decision in Natural Resources Defense Council v. Daley creates a legal standard for federal fishery management measures.  In creating that standard, the court said

“Government counsel conceded at oral argument that, to meet its statutory and regulatory mandate, the [National Marine Fisheries] Service must have a ‘fairly high level of confidence that the quota it recommends will not result in [fishing mortality] greater than [the target fishing mortality].’  We agree.  We also hold that, at the very least, this means that ‘to assure’ the achievement of the target [fishing mortality], to ‘prevent overfishing,’ and to ‘be consistent with’ the fishery management plan, the [total allowable landings] must have at least a 50% chance of attaining [such fishing mortality target].  [citations omitted]”

Yet when I asked the Council staff member whether the Control Rule would allow such staff member to say, with confidence, that there would be at least a 50% chance of preventing overfishing or exceeding the catch limit, I couldn’t get a clear answer.  Instead, along with some hemming and hawing and talk of “challenges,” I was told that the Control Rule represented a process, not a specific set of management measures.

The ”process” part may be true, but it’s also true that the end product of such process is a set of recreational management measures for the species in question, and we have not yet received any assurance that such management measures will be able to meet the NRDC v. Daley standard.

Nor have we received any information on the most important consideration on any of the four “approaches” described in the draft addendum:  How any of them will affect the health of fish stocks.

Remember that one of the key motivations behind the Control Rule, and particularly behind the haste to implement the Control Rule by the end of this year, is political:  A desire to increase the recreational black sea bass harvest in order to please a faction within the recreational community, along with a desire to avoid politically unpopular restrictions on black sea bass landings.

And maybe that makes sense with black sea bass, at least so long as spawning stock biomass soars will above the biomass target.  With biomass as high as it currently is, even severe overfishing for a couple of years probably wouldn’t reduce such biomass below its target.  There is plenty of room for error.

But how will the Control Rule fare with stocks at more typical levels of abundance, which hover somewhere between the biomass target and threshold? 

So far, no one has provided such information.

Which of the four approaches is more likely to see a somewhat depleted stock rebuild to target?  Or, looking at it from the opposite perspective, which of the approaches is more likely to maintain a currently healthy stock at its target level, and which is more likely to push a healthy stock into decline?

So far, no one has provided such information.

Which of the four approaches is more likely to prevent overfishing, and which is more likely to let overfishing occur?

So far, no one has provided such information.

Both the Council and the ASMFC have expressed concern about the impact of the uncertainty in recreational fishing data on regulations, perhaps forcing regulatory change when such change isn’t needed.  Perhaps the Percent Change Approach, with its consideration of the confidence interval surrounding the recreational data, helps to ease such concerns.

But no data is perfect; there is always some uncertainty involved.  And given that the other three approaches—Fishery Score, Biological Reference Point, and Biomass Based Matrix—consider more streams of data than does the current management practice, is it possible that such Control Rule approaches will actually introduce more uncertainty into the management process than currently exists?

So far, no one has provided such information.

Yet, without such information, it is impossible to provide intelligent, informed comment on the draft addendum, and for that reason, there is a good chance that I won’t attend the public hearing.  I lack the information needed to make a reasoned case for any alternative, including the status quo.

Normally, I’d feel guilty about remaining silent.  But in the case of the Recreational Harvest Control Rule, I feel no guilt at all.

That’s because I know that the Control Rule effort isn’t being driven by science.  It isn’t driven by well-considered public policy. 

It is being driven by a political agenda, by an industry that seeks to boost short-term profits by boosting the recreational kill of not only black sea bass, but summer flounder and scup (and, in the future, bluefish too, although being overfished, they are currently shielded by the rebuilding provisions of Magnuson-Stevens).

And when politics is in the driver’s seat, there is little point standing in the way and being run over.

We can only hope, when the dust clears and the Control Rule is inevitably put into place, that Mid-Atlantic fish stocks aren’t run over, too.

 

 

 

DEALING WITH LOCALIZED DEPLETION, WHERE AND IF IT EXISTS

Localized depletion has, over the past few years, become a hot topic in forage fish management. It’s based on the notion that, even though the overall stock of fish is healthy, intense fishing pressure in a particular region could significantly reduce abundance in that location, and have adverse impacts on the local food web.

First, there were menhaden in the Chesapeake Bay

The issue first drew concerted attention in 2005, after the Atlantic States Marine Fisheries Commission (ASMFC), acting through its Atlantic Menhaden Management Board (Menhaden Board), initiated Addendum II to Amendment 1 to the Interstate Fishery Management Plan for Atlantic Menhaden (Menhaden Addendum II), which capped the reduction fishery’s menhaden harvest in the Chesapeake Bay, while establishing research priorities to determine whether localized depletion of menhaden might be occurring there.

At the February 2005 Menhaden Board meeting, Dr. Behzad Mahmoudi, then Chair of the ASMFC’s Atlantic Menhaden Technical Committee, advised the Menhaden Board that

there is a concern about the localized depletion of Age zeros in the Chesapeake Bay as is evident by the transient juvenile abundance indices.

And this localized depletion is on a long-term scale…which is from year to year and is driven by reduced recruitment and possible increased predation. We noted that from the catch-at-age data and assessment results, that fishery removal on this age class in Chesapeake Bay is not a potential cause for depletion.

For the Age 1 and older, there is a lack of reliable data to determine if there is localized depletion within season for all ages and annually for Age 1, so we have really no scientific data to support that. [emphasis added]

Still, there is a saying in scientific circles that “absence of evidence is not evidence of absence.” While no one had demonstrated that localized depletion was occurring, that didn’t mean that it was not, in fact, going on. The Menhaden Board considered Menhaden Addendum II a precautionary measure, that capped the reduction fishery’s harvest until more data could be developed.

Such action was not universally welcomed. Jeff Kaelin, speaking on behalf of Omega Protein Corporation (Omega), the sole participant in the reduction fishery, naturally opposed the harvest cap. At the Menhaden Board’s May 2005 meeting, he called such cap “arbitrary” and “scientifically unjustified,” and argued that “the discussion that has been taking place over the past several months about skinny stripers in limited areas of the species’ range and the potential for localized depletion of this important menhaden fishery resource…continues to perpetuate a myth that today’s modern and limited menhaden reduction fishery threatens the Atlantic menhaden and striped bass resources.”

Those divergent positions, one supporting precautionary measures to prevent possible localized depletion, and the other opposing any restrictions on fishing unless depletion can be proven, have characterized the debate, for menhaden and for other species, ever since.

In the case of Chesapeake Bay menhaden, the debate has stalled, with the current state of the science little different than it was fifteen-plus years ago.

The Menhaden Board has still failed to define just what “localized depletion” means.

At its August 2009 meeting, ASMFC staffer Braddock Spear told the Menhaden Board that the Council of Independent Experts, which was reviewing the ASMFC’s menhaden management program, suggested that managers must first understand the stock structure of menhaden in the Chesapeake Bay before the localized depletion issue could be addressed. The reviewers also believed that site fidelity was a prerequisite for localized depletion to occur; because adult menhaden are migratory, they probably can’t be locally depleted unless fishing mortality is extremely high. That isn’t the case with larvae and juveniles, which remain in the bay until they mature. Any definition of “localized depletion” must also incorporate some time period over which any possible depletion would be measured.

The recommended parameters were never established, but the Menhaden Board still chipped away at the cap on the reduction fishery’s Chesapeake Bay landings, in the name of localized depletion. Originally set at 109,000 metric tons, the cap dropped to 87,000 metric tons in 2013, and then to 51,000 metric tons in 2018.

At first, Virginia didn’t comply with the final reduction.

Under Virginia law, menhaden were the only species that was managed by the state’s General Assembly, rather than by professional fishery managers. In 2018, a narrow majority of the state’s legislators were sympathetic to Omega. They refused to pass legislation lowering the Chesapeake Bay reduction fishery cap to 51,000 metric tons so, at the Menhaden Board’s May 2018 meeting, a motion was made to find Virginia out of compliance with the management plan; if passed, such motion could have resulted in the United States Secretary of Commerce shutting down Virginia’s menhaden fishery.

At one time, the threat of such a closure might have cowed Virginia’s legislators. However, just a year earlier, New Jersey had been found out of compliance with the ASMFC’s summer flounder management plan; when the ASMFC’s non-compliance finding was forwarded to Commerce Secretary Wilbur Ross, the Secretary, for the first time in history, refused to uphold the ASMFC’s finding. That refusal substantially undercut the ASMFC’s authority. The Menhaden Board feared that, if Secretary Ross overrode a noncompliance finding on menhaden, it would further weaken the ASMFC’s ability to manage coastal fish stocks.

Omega hadn’t removed more than 51,000 metric tons from the Chesapeake Bay since 2012, so the issue might have faded away, had the company not notified the ASMFC, on September 3, 2019, that it intended to exceed the 51,000 metric ton cap that season.

In a follow-up letter to the Menhaden Board, dated October 2, 2019, Omega challenged the concept of localized depletion, writing that “The Bay cap has always been a unique measure. It only impacts fishing in one state (and effectively impacts only one company). It was never justified as a scientifically derived catch limit…[but as a] negotiated precautionary measure.”

Omega’s decision to exceed the 51,000 metric ton cap was a direct affront that the Menhaden Board could not ignore. At its October 2019 meeting, it finally found Virginia out of compliance with the menhaden management plan. But as the ASMFC forwarded its finding to the Commerce Secretary, there was real concern that the Secretary would find that the Menhaden Board had no scientific justification for imposing a harvest cap intended to prevent localized depletion.

On December 19th, perhaps thanks to the Governor of Virginia, who endorsed the noncompliance finding against his own state, and to the fishing and boatbuilding industries, which encouraged Commerce Secretary Ross to find Virginia out of compliance, the ASMFC announced that the Secretary agreed that Virginia had not complied with the menhaden management plan, and would shut down the state’s menhaden fishery on June 17, 2020 unless it came into compliance by then.

The concept of localized depletion had its first big win, even though scientists had never proven that menhaden could be locally depleted in the Chesapeake Bay.

Then, there were herring off New England

Up in New England, a fight over the localized depletion of Atlantic herring was taking shape. It would end very differently than the menhaden debate.

In 2015, the New England Fishery Management Council (New England Council) began soliciting public comments on a new amendment to its fishery management plan for Atlantic herring (Amendment 8), which would consider the herring’s role as a forage fish. The resulting comments not only supported lower harvest limits, which recognized herring’s place in the food web, but also requested regulations that would prevent large mid-water trawlers from depleting local populations of herring needed to feed marine predators.

Rob Muir, the director of the Ocean River Institute, called for “a harvest policy that addresses some of the spatial and temporal concerns repeatedly raised by fishermen—make sure there are enough herring in the times and at the places that predators need them.” The Pew Charitable Trusts made a similar argument, saying that “Amendment 8 should include alternatives that explicitly aim to keep Atlantic herring present in sufficient quantities when and where they are needed most by predators.” Others expressed similar positions.

Such comments led the New England Council to conduct another round of hearings, that focused on the localized depletion issue. Unlike the Menhaden Board, the New England Council defined such depletion, in the request for public comment, saying “localized depletion is when harvesting takes more fish than can be replaced either locally or through fish migrating into the catch area within a given time period.”

There was broad public support for the New England Council’s efforts to control localized herring depletion.

Bud Brown, an environmental consultant from Maine with substantial experience in marine issues, wrote that “Inshore Herring stocks have been depleted by overfishing to such low levels that they do not have the Biotic Potential to overcome both natural mortality (M) and any sort of fishery (F). Given that the inshore depletion exists coast wide in Maine over a wide range of temperatures, environmental conditions, and human population densities, I find it intellectually dishonest to blame it on climate change, pollutants (we do a lot of water quality work and everything is better now), and predators.”

Shawn Joyce, a small-boat commercial tuna fisherman, expanded on such comments, saying “it is disappointing to see what happens when the mid-water [herring trawlers] come in during October. Just last season the midwater boats decimated the herring amidst the tuna fleet near Ipswich Bay and Southern Jeffreys Ledge. This quickly put an end to the tuna season for many small, local fishermen who are dependent on the fishery. Without herring as high fat feed, the tuna leave our waters.”

The great majority of other comments concurred.

Relying on such public comment, the New England Council released a proposed rule which, among other things, established a buffer zone that ran along the New England coast from Maine to Rhode Island. Large mid-water herring trawlers were barred from such buffer, to prevent localized depletion of inshore herring populations. The Federal Register notice accompanying the proposed rule advised, “Public comment during the supplemental scoping made it clear that localized depletion voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of local depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring.”

However, the notice also acknowledged “a lack of quantitative evidence demonstrating localized depletion.” It explained that “Information to quantify the impacts of midwater trawling on other user groups is scarce, so the amendment analyzed the degree of overlap between midwater trawl vessels and other user groups…Specifically, it incorporates the overlap with predator fisheries in the Gulf of Maine and southern New England throughout the year, as well as the overlap with ecotourism and the tuna fishery…during the fall.”

The midwater trawl fleet disagreed. Their comments noted, among other things, that “The best available science does not indicate localized depletion, nor does it find a difference in fishery removals by midwater trawl vessels compared to purse seine vessels, and the measure makes no attempt to align the restricted area with associated analyses and is an illegitimate political compromise.”

The National Marine Fisheries Service rejected such argument, averring “The Council’s development of the amendment considered the best available science to determine how best to achieve [optimum yield] in this fishery, given this fishery’s multiple commercial, recreational, and ecological interests. The inshore midwater trawl restricted area fairly and equitably allocates fishing opportunities to a wide variety of fishing industry participants in a manner that reasonably promotes conservation.” NMFS issued the final rule, which sought to avoid localized depletion by forcing the mid-water trawlers out of New England’s inshore waters, on January 11, 2021.

The courts play a role

The midwater trawlers sued, seeking to overturn the rule. On March 4, 2022, in the matter of Sustainable Fisheries Coalition v. Raimondo (Sustainable Fisheries), the United States District Court for the District of Massachusetts found in favor of the trawlers. In the court’s opinion, the decision was “arbitrary and capricious,” because NMFS failed to demonstrate “a rational connection between the facts found and the choice to implement the exclusion zone.” It determined that “the Secretary [of Commerce] could not identify any scientific evidence of localized depletion, let alone establish a link between the [midwater trawl] vessels and localized depletion.”

It was a somewhat questionable decision.

Courts have a very limited authority to overturn agency decisions. The federal Administrative Procedures Act permits a court to set aside an agency decision if, among other reasons, it is “arbitrary, capricious, an abuse of discretion…[or] unsupported by substantial evidence.” [internal formatting omitted]

The court is not allowed to substitute its judgement for that of the agency; it may only carry out a “careful, searching review [of the administrative record], to ensure that the agency has made a rational analysis and decision on the record before it.” Such determination is normally based on whether there was “substantial evidence” on the administrative record to support the agency action.

In 1938, the United States Supreme Court determined that “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In Sustainable Fisheries, the court decided against NMFS because there was no “scientific evidence” of localized depletion, and because NMFS failed “to clearly define localized depletion spatially or temporally.” The court disregarded the testimony provided by many witnesses, that they had observed the midwater trawl fleet deplete local herring stocks, and caused predators to abandon the depleted areas, saying “those comments can certainly provide anecdotal support for the final rule, [but] are not an adequate substitute for scientific evidence of localized depletion and its link to [midwater trawl] vessels.”

The key question, which a federal appellate court will have to decide, should NMFS appeal the lower court’s decision, is whether, in finding that stakeholder comments were “not an adequate substitute for scientific evidence,” the lower court overstepped its authority, and improperly substituted its own views for that of the agency. To put it another way, such appellate court would have to decide whether the comments made at the hearings constituted “substantial evidence” that NMFS might reasonably have found sufficient to support its decision to close inshore waters to mid-water trawls.

So far, NMFS has not decided whether it will appeal, but trial court’s decision tested the bounds for judicial review of agency actions. The appellate court’s decision could go either way.

What happens next?

Where does the court’s decision leave the issue of localized depletion?

The answer depends on which management body is making the rules.

The ASMFC won’t be affected at all. The 2010 decision of the United States Court of Appeals for the 2nd Circuit, in New York v. Atlantic States Marine Fisheries Commission, determined that the ASMFC’s fishery management measures are not subject to judicial review pursuant to the Administrative Procedures Act. Thus, the ASMFC is free to adopt precautionary measures to prevent the localized depletion of any fish stock, without worrying that the lack of underlying scientific findings will leave the action vulnerable to claims that it is arbitrary, capricious, or otherwise flawed.

There is always the chance that Virginia, or some other state, will go out of compliance with such an action. Should that occur, the fate of the challenged management measure will most likely depend on who the Secretary of Commerce is at the time; the final decision will be more a product of politics than of science or law.

For NMFS, the situation is a little more complicated.

Trial court decisions have very limited precedential value, and often turn on facts unique to each case. The court’s ruling in Sustainable Fisheries will not dictate the outcome of other management measures intended to avoid localized depletion. Yet, unless and until the Sustainable Fisheries decision is questioned or overturned by another court, the New England Council, and probably other regional fishery management councils, will likely be reluctant to adopt any similar measures unless they are supported by clear scientific evidence. Precautionary management efforts are unlikely to advance.

That will be a setback for improved forage fish management, but the setback should be temporary. The New England Council received comments from many fishermen and other stakeholders as to the impacts of industrial fishing gear on Atlantic herring stocks. What stakeholders observe, scientists can prove. They only need the time and the opportunity to do so.

In the meantime, the localized depletion debate will go on.

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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/

AQUACULTURE: THE ENTIRELY SYNTHETIC ECOSYSTEM

People need to eat, and the Earth’s native ecosystems can’t feed them all.  In densely populated developed nations, the hunter-gatherer lifestyle disappeared, with very few exceptions, a long time ago. 

In the ocean, wild-caught fisheries have hung on much longer.  One source estimated that, in 2015, about 81 million metric tons, or more than 178 billion pounds, of fish were caught in wild-capture marine fisheries; the same source speculated that unreported catch and discards could increase the real total of annual removals to something closer to 130 million metric tons, or 286 billion pounds.

While the human population continues to increase, the ocean is probably close to, and has possibly already exceeded, its maximum long-term yield.

It is thus inevitable that aquaculture, which already contributes nearly half of all seafood, will become a bigger source of marine protein in the future.  Inshore aquaculture of everything from kelp to large finfish such as salmon is already being practiced across the world, although the United States is lagging many other coastal nations.  While inshore aquaculture certainly produces large quantities of food, it also produces its share of problems.  Pollution from fish waste and uneaten food, antibiotics and pesticides introduced into the marine environment, disease and parasites that spread from farmed fish to wild populations, and escaped non-native fish, that have the potential to become invasive and harm marine ecosystems, are only some of the issues that have arisen over the years.

Partly to avoid such issues, and partly to exploit the expanses of the continental shelf where aquaculture might be practiced, there is a growing effort to move some aquaculture operations offshore, where its proponents hope that open, current-swept waters will eliminate pollution and other issues that arise when fish are farmed in shallow, protected bays and estuaries.

Listening to the aquaculture advocates, it’s not difficult to imagine offshore fish farms leading to the same sort of revolution in seafood production that intensive agriculture and animal husbandry wrought in the 19^th century United States, a revolution that not only allowed the nation’s farmers and ranchers to feed the U.S. population, but to export foodstuffs to markets all over the world.

Of course, such intensive agriculture had a downside.  There’s not left of the inland ecosystems that existed when the first European settlers landed on the shores of what is now the United States. 

The vast, flowered prairie of the Great Plains, with its attendant plants, insects, upland birds, and mammals, was transformed into a patchwork of farms, feedlots, and ranches.  Wetlands were drained to increase production.  Streams and small rivers that once ran clear, and provided riparian habitat for a host of creatures, had their banks cleared to facilitate even more planting, or to allow livestock to more easily access the water.  Today, too many such streambanks are trampled and eroded, and too many such streams run dank and hypoxic, their waters tainted by the manure, excess fertilizer, pesticides, and herbicides that are an inescapable byproduct of industrial agriculture.

It's impossible not to wonder whether intensive aquaculture will have a similar impact on our coastal sea.

Last week, those of us who attended the Saltwater Recreational Fishing Summit, sponsored by that National Marine Fisheries Service and Atlantic States Marine Fisheries Service, got just a glimpse of what aquaculture might mean for coastal ecosystems; that vision was either troubling or reassuring, depending on one’s outlook with respect to increased angling opportunity, and the value of such increased opportunity compared to the value of naturally functioning marine ecosystems.

Mr. Neil Sims, the Chief Executive Officer of the aquaculture company Ocean Era, provided Summit attendees with a very positive vision of what aquaculture could mean to anglers.  Ocean Era operates Kona Bluewater Farms LLC, a company which raises “Kona Kampachi,” kampachi being a Pacific amberjack, off the coast of Hawaii.

Mr. Sims explained how his kampachi differed from the native fish.  While wild kampachi were, he said, an undesirable food fish because they hosted large quantities of parasites, and could sicken anyone who ate them with ciguatera poisoning, farmed kampachi can be raised to be both parasite- and ciguatera-free.  Thus, the farms offered a new source of quality protein.

Mr. Sims went on to explain that because of the restrictions currently placed on offshore aquaculture in the United States, Ocean Era felt compelled to establish its next project off Mexico, as it

“want[ed] to push the envelope for offshore aquaculture,”

something that it might not be able to do under current U.S. rules.

Nevertheless, Ocean Era is also working on the Vellella Epsilon Project, 40 miles off Sarasota, Florida, which will consist of a pen holding 20,000 Almaco jack.  Mr. Sims said that Ocean Era wants to be able to take anglers and journalists out to that project, where they can see the benefits of offshore aquaculture for themselves.

And what are such benefits?

For one thing, the net pens used to hold the farmed fish become FADs—fish attracting devices—which will provide increased angling opportunity.  Mr. Sims described an experimental farm off Hawaii that attracted many different types of fish, from dolphin and wahoo to tuna and marlin, and was necessarily sited close to a harbor, making it a convenient spot that allowed even small boat anglers a chance to find and catch large pelagic species.

He also noted that the fish pens could be used for “enhancement” and “recruitment supplementation,” another way of saying that fish farms could be used as hatcheries to produce more fish for anglers to catch.  According to Mr. Sims, aquaculturists have already figured out how to artificially rear species of snapper, grouper, and trevally (another type of jack).

And the downsides?

Mr. Sims didn’t dwell on any particular problem.  He admitted that there were risks posed by offshore aquaculture, but explained that such risks, could be “modeled, managed, and monitored,” although, apparently, not eliminated.  He said that offshore aquaculture didn’t create serious water quality issues or damage the substrate (bottom).  While he admitted that escapes were inevitable, he also said that the escaped, aquacultured fish were “slow and stupid” compared to their wild counterparts, and so extremely vulnerable to predators.  He also dismissed the risk of escaped, farmed fish causing any damage to wild stocks, saying that any such damage would not occur unless there were “heavy genetic modification” to the escaped animals.

Mr. Sims painted a rosy picture.

A second speaker, Capt. McGrew Rice, of Hooked on Kona Fishing Charters, admitted that the fish farms served as FADs.  He focused his comments on the Ocean Era’s temporary kampachi pen, located just four miles offshore, which he called “the ultimate FAD.”  But then he noted that

“The difference in Hawaii is that we have natural FADs, ledges and structure,”

and stated that he believes the fish pen interfered with the movement of bait onto natural structure, saying that there was less bait on the natural structure when the pen was in place, but that the bait returned to natural structure once the pen was removed.  Capt. Rice observed,

“The buoys and the aquaculture do impact the ledges,”

but they don’t prevent people from catching all of the fish that they want, due to their function as FADs.  He admitted that he’d rather not have the fish farms or other FADs interfering with the natural movements of bait and with the natural structure, but that he views fish farms in the same way that he views oil rigs.

“When migrating fish hit this fish farm, they stop there and don’t go into the places they would on a regular basis.”

Capt. Rice finished up by noting that we should be very careful about where we decide to put steel in the water, and said that using areas of the ocean for things such as fish farms can be seen as a privatization” of the sea.

So, in the end, just how should we look at offshore aquaculture?

In 2011, Anders Halverson wrote a book titled An Entirely Synthetic Fish, which chronicled the history of the hatchery-spawned rainbow trout, which has now been stocked in the waters of every continent on Earth, with the exception of Antarctica.  

Should offshore aquaculture be seen as an unqualified boon, which will feed untold numbers of people without the need to deplete marine fish stocks, while at the same time providing new and exciting opportunities for recreational saltwater fishermen?

Or should it be seen as creating entirely synthetic coastal ecosystems, where the natural movements of baitfish are interrupted by aquaculture facilities, which act as fish attracting devices that benefit anglers at the same time that they diminish the importance of natural features of the ocean bottom.

While aquaculture advocates might hold out the promise of vast ocean hatcheries, that use aquacultured fish to supplement, and perhaps even replace, the naturally reproduced fish that have long served as the foundation of coastal fisheries, is such promise truly credible?  

Will aquacultured fish become the marine equivalent of stocked trout and salmon?  Or will such fish, which Mr. Sims admitted are “stupid and slow,” serve as easy pickings for seals, dolphin, and other ocean predators, and be swiftly removed from the sea?  

To the extent that any such fish survive long enough to be caught by recreational fishermen, will such “stupid and slow” fish from the floating net pens be a challenging quarry for anglers, or will they turn recreational saltwater fishing into something similar to the freshwater game, where anglers chase the hatchery truck in search of an easy harvest?

Those are questions that the recreational fishing community needs to answer.

For there is little doubt that aquaculture in the United States is merely a fledgling business; by the time that it matures, there will be far more and larger offshore aquaculture facilities than we have today. 

How those facilities are regulated will decide whether the fish that they produce will ease current stresses on marine ecosystems, allowing them to thrive, or whether the aquaculture facilities create entirely synthetic ecosystems, which will only vaguely resemble those created by a natural and naturally evolving sea.