WHY LET A LITTLE EXTINCTION GET IN THE WAY OF BIG BUSINESS?

 

Today’s edition of One Angler’s Voyage isn’t going to focus on fish, at least not for a while, although it will eventually get around to the topic.  But it’s going to start by addressing a much larger matter.

That matter is whales.  In particular, Atlantic right whales.

Such whales were once common along the North American coast, so common that, when the original European settlers entered into treaties withthe native tribes, the rights to beached whales were an important part of thenegotiations.  Later, the right whales, which were abundant, docile, filled with oily blubber, and floated after being killed—traits that made them the “right whale” to pursue—formed the basis of New England’s nascent whaling industry.

But that industry was unregulated, and the whalers had unlimited access to the right whale resource, so the creature’s fate was written in stone.  Its population collapsed, and the industry that it supported was forced to turn to other whales in other waters, often on the opposite side of the world.  

In 1970, the North Atlantic right whale was listed as “endangered” under the federal Endangered Species Act.  Today, the species remains endangered, with a total population thought to number less than 350, with fewer than 100 of those being females of breeding age.  Although the population seemed to be slowly increasing between 1980 and 2010, it has declined sharply since then, falling back almost to its 1980 level.  

Since 2017, 34 right whales—about ten percent of the population—have been killed and another 21 seriously injured; 36 additional whales suffered sublethal injuries.  While the causes of 13 of the deaths remains unknown, scientists have determined that 11 died as a result of vessel strikes, 9 from entanglements, and 1 from natural causes.

The National Marine Fisheries Service issued final regulations intended to reduce right whale entanglements in crab and lobster gear a little over one year ago. 

Last summer, the agency took preliminary steps to address the vessel strike issue, expanding current 10-knot maximum speed zones and reducing the minimum size of the vessels to which such speed zones apply from 65 to 35 feet.  In explaining the need for the new rule, NMFS noted that

“Vessels less than 65 feet in length account for five of the 12 documented lethal strike events in U.S. waters since the first speed rule went into effect in 2008, demonstrating the significant risk this vessel size class presents and the need to extend the speed restrictions to include smaller vessels.”

The proposed speed zones would extend from Maine through the upper section of North Carolina’s Outer Banks for the period November 1-May 31; along most of the rest of the North Carolina coast from November 1 through April 30; from southernmost North Carolina to northern Georgia from November 1 through April 15; and from southern Georgia to the northeastern Florida coast from November 15 through April 15.  

While the speed restrictions would have a fairly minimal impact on recreational fisheries in northern waters, being in effect when most anglers are either finishing up their striped bass season or have already taken their boats out of the water for the winter, they would likely have a significant detrimental effect on fisheries in the lower mid-Atlantic and the Southeast.

Needless to say, the recreational boating industry was not pleased with the proposal.

It’s very possible that at least some of that displeasure was justified; it’s possible that smaller reduced-speed areas, or areas that shift with the known presence of whales, or some other less restrictive means of protecting the endangered cetaceans could be put in place, and if the industry took that tack in their comments, you wouldn’t be reading this blog. 

Instead, the industry’s approach was very different, focusing not on the plight of the whales, but on the plight of boatbuilders’ cash flow.  As the Asbury Park Press reported,

“A coalition of trade groups representing the industry compiled an analysis of National Marine Fisheries Service data, the fisheries arm of NOAA, and that found approximately 5.1 million recreational fishing trips were taken in the proposed zones by vessels 35 to 65 feet in length since 2008.  Assuming all five right whale strikes during that time were from recreational vessels, and that all these vessels were on fishing trips, the chance of a 35- to 65-foot recreational vessel striking a right whale during a fishing trip is less than one-in-a-million, the group argued.”

And that statement is true, if one focuses on the vessels and the trips, and not on the whales.

But when you’re talking about extinction, it is the impact of threats on the whales that matters.  And when you look at things from the whales’ perspective, but otherwise make the same assumptions that were made in the industry association’s comments, the odds of something bad happening aren’t more than one in a million—the odds of a particular boat on any given trip striking and killing a right whale--but around 5 deaths in a population of less than 350, or something less than one in 70, of any given whale being killed by a smaller vessel

While that may still seem a reasonably remote possibility, we have to remember that an Atlantic right whale can live for more than 70 years, and that once they survive their first year of life, they face very few threats from the natural world.  While females mature at about 10 years of age and, under ideal conditions, can birth a calf every three years, the stresses they face from entanglement and other human-related injuries have resulted in a longer, six to 10-year interval between births, which represents a sharp reduction in the fertility rate.  In addition, because human-related injuries have reduced the average female’s lifespan to just 45, rather than 70-plus, years, the male/female ratio in the population has been skewed, with males outnumbering females by more than two to one.

Under such circumstances, the loss of even a single individual to human-related causes can represent a meaningful loss to the stock.  The National Marine Fisheries Service has stated that

“The North Atlantic right whale is one of the world’s most endangered large whale species,”

and some conservation groups warn that the species could become extinct by 2040—less than two decades from now.

Yet, based on comments made by its president, Frank Hugelmeyer, the biggest concern of the National Marine Manufacturer’s Association isn’t that the North Atlantic right whale could forever disappear from the Earth’s seas, but that

“NOAA’s proposed rule unfortunately underestimates the very real economic impacts on the recreational boating and fishing industry, the largest contributor to the nation’s $689 billion outdoor recreation economy.  The rule will bring the vast majority of boating and fishing trips along the Atlantic Coast to a screeching halt, impacting millions of Americans who go boating every year.”

That’s a dubious statement, as it ignores the high percentage of recreational boating and fishing trips that take place inside coastal bays, sounds, and estuaries, which would be completely unaffected by the proposed speed restrictions, the number of trips that take place within five or ten miles of a vessel’s home inlet, rendering whale-related speed restrictions relatively unimportant and, although they have almost no relevance to the angling community but are nonetheless "boating...trips,' the number of trips that are made aboard sailboats, that aren’t in a hurry to get anywhere and seldom sail much above 10 knots even when not in a restricted speed area.  

Corporate hyperbole always strives to make things seem far worse than they actually are, yet the Center for Sportfishing Policy, an umbrella organization representing the recreational fishing and boating industries, along with a handful of closely affiliated anglers’ rights organizations, has jumped on the anti-speed zone bandwagon.  Its president, Jeff Angers, complained that

“Protecting right whales is urgent, and we are ready to do our part.  NMFS’ failed due diligence excluded from the conversation America’s recreational anglers and boaters—the most affected stakeholders.  The agency needs to get it right.  Based on actual interactions between recreational boats and right whales, the proposed restrictions on vessels 35-65 feet are unjustifiable, ineffective and unnecessarily costly to America’s economy.”

And perhaps Angers has some sort of a point.  After all, we don’t boil right whales down for their oil any more, and they’re not common enough to be seen on most whale-watching tours, so they really don’t have too much economic value these days.  So maybe, from some warped perspective, it does make more sense to let the whales go extinct in order to avoid unnecessary economic costs.

National Marine Manufacturers’ Hugelmeyer seems to endorse such a view, urging that

“Every employee in the entire industry needs to respond to this to protect their jobs and protect their industry,”

by, we can only assume, preventing NMFS from protecting the whales.

And this is where the fish come in, because groups like the Center for Sportfishing Policy and the National Marine Manufacturers Association don’t just spend their time trying to frustrate right whale conservation.  They spend a lot of time trying to frustrate fisheries conservation, too.

A few years ago, the same coalition of organizations supported something called the Modernizing Recreational Fisheries Management Act—dubbed the “Modern Fish Act” for short—which sought to weaken the conservation and management provisions of federal fisheries law in order to allow larger recreational harvests and an expansion of the recreational fishing and boating industry.  Thom Dammrich, then the president of the National Marine Manufacturers’ Association, observed that

“For far too long, the federal fishery management system has limited access for America’s recreational anglers and boaters due to faulty data and misguided regulations, which in turn have jeopardized the economic vitality of the recreational boating industry.  On behalf of the estimated 650,000 workers the recreational boating industry supports, we are eager to continue working with our allies in both chambers of Congress to get this important legislation to the president’s desk.”

The similarity to the rhetoric used to oppose proposed right whale protections are strikingly clear.

At about the same time, down in the Gulf of Mexico, the same coalition advocated for, and then celebrated, a temporary rule that would allow private boat recreational anglers to substantially overfish their annual red snapper catch limit, with the Center for Sportfishing Policy’s Angers declaring that

“The federal fisheries management system is failing recreational anglers on many levels, and the red snapper is the ‘poster fish’ of the quagmire.  The temporary rule directly addresses this problem, giving millions of recreational anglers in the Gulf of Mexico an opportunity to enjoy America’s natural resources and giving the Gulf economy a much needed shot in the arm.”

Such language, with its reference to NMFS “failing” recreational anglers and its elevating economic concerns over conservation imperatives, echoes the comments that Angers made with respect to the proposed right whale protections.

In 1908, the pioneering American naturalist and ocean explorer William Beebe, who descended half a mile beneath the ocean’s surface in the bathysphere, observed that

“The beauty and genius of a work of art may be reconceived, though its first material expression be destroyed, a vanished harmony may yet again inspire the composer; but when the last individual of a race of living beings breathes no more, another heaven and another earth must pass before such a one can be again.”

Or to paraphrase, in more modern terms,

“Extinction is forever.”

Yet it appears that the recreational boating and fishing industries are willing to increase the chance of the Atlantic right whale becoming extinct, just to prevent a decline in sales.  Such callousness pretty well explains why such organizations should not have a say in endangered species policy.

But their indifference to the very survival of a species also provides a very good window why such groups, and particularly the Center for Sportfishing Policy, shouldn’t be heeded when it comes to somewhat less critical issues of fishery management:  When the needs of conservation and profit conflict, they will always subordinate the needs of the resource to those of their bank accounts.  Such approach may very well serve their short-term interests, but it does absolutely nothing for ours.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NORTH CAROLINA LAWSUIT COULD BRING CHANGE TO FISHERIES MANAGEMENT

 

Nearly two years ago, the Coastal Conservation Association, acting through its North Carolina chapter, brought a legal action against the State of North Carolina, alleging that the state has badly mismanaged its marine fishery resources and failed to fulfill what the plaintiffs claim are its “public trust responsibilities” to protect citizens' “public trust rights” to fish in coastal waters.

In announcing the lawsuit, a CCA spokesman claimed that

“The State has failed to meet its legal duty…instead allowing for-profit exploitation of coastal fisheries resources by fewer than 7,000 citizens to supplant the public rights of 11 million citizens to use coastal fisheries resources.”

More particularly, CCA argues that the North Carolina Division of Marine Fisheries has done little or nothing to reverse long-term declines in the health of coastal fish stocks, in particular stocks of river herring, southern flounder, striped bass, spot, croaker, and weakfish.

The CCA has typically been hostile to the commercial fishing industry, often while ignoring or even justifying recreational abuses of marine fisheries resources.  In North Carolina, it again focuses on supposed commercial harm to fisheries resources, complaining that

“three critical state management failures that have infringed on the public’s right to fish for personal use:  (1) facilitating commercial fishing practices and gears that cause staggering amounts of resource wastage; (2) allowing chronic overfishing of multiple fish stocks historically important to the fishing public to cause stock demise; and (3) disregarding a lack of reporting of any harvest by over half of all State commercial fishing license holders.”

Perhaps such complaints are justified, perhaps they are not.  Citing a section of the North Carolina Constitution, CCA alleged in its complaint that

“The public-trust doctrine imposes a fiduciary duty on the State to manage and regulate the harvest of [coastal finfish and shellfish] in a way that protects the right of current and future generations of the public to use public waters to fish.  As a result, the State may not allow the harvest of finfish or shellfish in public waters in quantities or by methods that cause unnecessary waste or impair the sustainability of fish stocks, which in turn threaten the right of current and future generations of the public to use such public waters to fish.”

It further alleges that North Carolina

“has continued to allow—and even facilitated—several commercial fishing practices that result in substantial wastage of coastal fish stocks or their prey species, or result in critical habitat destruction.  Those commercial fishing practices include trawling in estuarine waters with significant populations of juvenile finfish, and using ‘unattended’ gillnets…As a result, stocks of multiple fish species…have declined precipitously—84 to 98 percent—since the last major fisheries management reform legislation was enacted in North Carolina in 1997.”

Not surprisingly, North Carolina regulators strongly objected to the allegations, and sought to have the lawsuit dismissed. 

Such motion to dismiss did not directly address the allegations made but, as is typical in the early phases of litigation, relied on technical legal arguments, including claims that the state had not waved its sovereign immunity with respect to such fisheries issues, and so could not be sued; that only the state could raise claims based on the public trust doctrine; and that, for various reasons, the CCA complaint failed to state any claims on which relief could be granted.

On July 28, 2021, a trial court denied North Carolina’s motion to dismiss, and allowed the suit to proceed.

While that was not an insignificant action, when dealing with novel issues such as those addressed in the CCA suit, what happens at the trial level means far less than what is decided when the trial court’s decision is, inevitably, appealed.  So appellate briefs were duly filed, arguments were made, and on September 6, 2022, the North Carolina Court of Appeals unanimously upheld the trial court’s decision.

That was a much more impoortant action, made more so by the fact that, a few days ago, the state decided not to appeal the matter to the North Carolina Supreme Court, presumably because it felt that the Court of Appeals' decision was well-reasoned, and was unlikely to be overturned.

With the purely legal arguments out of the way, and the law of the case firmly established, a trial will now be held on the merits, in which the CCA will have to prove the allegations made in its complaint.  That won’t be a cakewalk, but some language in the Court of Appeals decision suggests a clear path forward for the plaintiffs.  More specifically, the court wrote, in part, that

“…Article XIV Sec. 5 was added to our State Constitution in 1972 and states: ‘[i]t shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry…’  Our Court interpreted this amendment…as tasking the State with a constitutional duty to not only protect the public lands, but also the public trust rights attached thereto. 

“Plaintiffs alleged the State breached this constitutional duty by ‘mismanaging North Carolina’s coastal fisheries resources.’  Specifically, Plaintiffs alleged the State has mismanaged the fisheries by ‘permitting, sanctioning, and even protecting two methods of harvesting coastal finfish and shrimp in its State public waters’—shrimp trawling and ‘unattended’ gillnetting—‘that result in enormous resource wastage[;]’ ‘refusing to address and remedy chronic overfishing of several species of fish[;]’ and, ‘tolerating a lack of reporting of any harvest by the majority of commercial license holders for more than a decade.’  Plaintiffs alleged ‘the State’s mismanagement of coastal fisheries resources…has eliminated or, at a minimum, severely curtailed the public’s right to fish for [popular fish species]…’  Thus, the alleged facts here support Plaintiffs’ contention that the State did not protect the harvestable fish population ‘for the benefit of all its citizenry.’  [citations omitted]”

The court also stated that

“Section 38 was added to Article I of our State Constitution in 2018 by amendment proposed by legislative initiation and adopted by popular vote.  It states:

The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good.  The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing…

“The state contends the language of this provision places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good.  We disagree.  ‘In interpreting our Constitution—as in interpreting a statute—where the meaning is clear from the words used, we will not search for a meaning elsewhere.’  ‘The plain meaning of words may be’ construed by reference to standard, nonlegal dictionaries… 

“The first sentence of Section 38 makes clear the right to fish belongs to the people.  Moreover, its inclusion in Article I indicates the General Assembly intended for this right to be protected against encroachment by the State.  Indeed, this right is ‘subject only to laws…and rules…to (i) promote wildlife conservation and management and (ii) to preserve the future of…fishing.’

“The plain meaning of the next phrase in the first sentence ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.  ‘Shall’ means ‘has a duty to’ or ‘must’ and imposes ‘imperative or mandatory’ obligations on the party to which ‘shall’ applies.  Forever, means ‘for a limitless time.’  ‘Preserve’ means ‘to keep safe from injury, harm or destruction.’  Thus, the plain meaning of the phrase indicates the General Assembly, when drafting the proposed amendment, intended to create an affirmative duty on the State to preserve the right of the people to fish and harvest fish.  However, the right to fish and harvest fish would be meaningless without access to fish.  Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time…  [emphasis added; citations omitted]”

Such language suggests that, in order to prevail in their lawsuit, the plaintiffs must first prove that North Carolina’s fish stocks have been harmed—something that the seem very able to do—and that the State of North Carolina has somehow failed to meet its constitutional obligation to prevent such harm.

That might be a bit trickier.

The plaintiffs will undoubtedly point to trawling within North Carolina’s bays, the use of unattended gill nets, and other allegedly inappropriate fishery management measures as evidence of North Carolina’s failures.  However, once the case goes to trial, merely alleging that state regulations caused, or at least did not prevent, harm to fisheries resources.  Plaintiffs must be able to prove, probably by a preponderance of the evidence (although some other evidentiary standard might apply), that such is the case; mere appeals to common sense, unsupported by data, will not get the job done.

North Carolina will undoubtedly challenge the plaintiffs’ allegations and evidence, and will almost certainly present evidence supporting its approach to fishery management.  The issues of scientific and management uncertainty will undoubtedly arise.  

While it’s very easy to second-guess fishery managers when their preferred measures fail to maintain a healthy stock, it’s far more difficult to devise measures that will both maintain stock health and allow a reasonable level of commercial and recreational harvest.  North Carolina will probably claim that, based on the data available, it did its best to maintain healthy fish stocks, but simply fell victim to the uncertainty inherent in the management process.

North Carolina might also maintain that it did what it could to protect and manage fish stocks, but that its efforts were frustrated by events that occurred outside its jurisdiction. 

While it might, for example, be able to manage its own Roanoke/Albemarle stock of striped bass, its loss of what was once a vital winter striped bass fishery for the coastal migratory stock was due to warming waters pushing both the bass and their forage farther offshore, while also allowing the bass to remain farther to the north, and not any failure of state fishery managers.

On the other hand, the decline in southern flounder abundance might well be laid on North Carolina’s doorstep.  The state released a stock assessment update in 2019, which admits that

“Model estimates of [fishing mortality] for the U.S South Atlantic coast are largely a function of the commercial fishery operating in North Carolina, which has generated considerable landings (1,000 to 2,000 metric tons annually) for nearly three decades,”

and also describes a path that would lead to the stock’s recovery:

“To reach the [spawning stock biomass] target by 2028, fishing mortality would need to be lowered to 0.18…and total catch would need to be reduced by 72%...All projections are associated with probabilities of 50%.”

When the state recognizes both a major contributor to the problem and the likely solution, it’s difficult for it to argue that the southern flounder issue can’t be fixed—although, even in that case, the assessment update acknowledges many unknowns related to other state’s fisheries, which could impact flounder abundance in North Carolina, and to the movements of a segment of the adult population.

Thus, the ultimate fate of the CCA lawsuit cannot be predicted.  Yet it’s interesting to ask the question:  What if the plaintiffs prevail?

The impact on North Carolina will be clear—if the state loses, it will be forced to embark on a much more aggressive, and far more conservative, fishery management program, which will be required to rebuild depleted fish stocks, and to manage all state fish stocks for long-term sustainability.

Elsewhere, any impacts will be less predictable, but could still be profound.

North Carolina is the only state defendant, and the court's decision in the matter will be based on the North Carolina Constitution and North Carolina law.  It will be binding authority only with respect to that state.  However, depending on how it is worded, the decision could also become persuasive authority—that is, precedent which isn’t binding on a court, but might be cited by attorneys litigating a similar matter, when binding precedent is lacking in the relevant state—elsewhere.

The constitutional provision guaranteeing people’s right to hunt, fish, and harvest wildlife isn’t unique to North Carolina; such measures were heavily promoted by the National Rifle Association a few years ago, and have made their way into other states’ constitutions.  The North Carolina Court of Appeals decision, with respect to the meaning of such provision, could already constitute persuasive authority there.

More broadly, any final decision in the matter could make its way into debates about the scope of states’ responsibilities under the public trust doctrine, and whether such doctrine not only requires states to guarantee the public right to fish in coastal waters, but also to guarantee that those waters will hold enough fish to make angling worthwhile.  

Coupling such a legal theory with existing state statutes--for example, with something like section 13-105 of New York’s Environmental Conservation Law, which opens with the statement that

“It is the policy of this state that the primary principle in managing the state’s marine fisheries resources is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations,”

could yield some very important victories for conservation advocates.

But that sort of speculation belongs to the future.  Before we can start thinking about how to apply the North Carolina court’s decision in the CCA lawsuit to other situations in different jurisdictions, the court—and likely one or more appellate courts—first needs to decide the case.

But from what has been decided so far, in the interlocutory appeal, there is a fair chance that the decision, once handed down, will represent a win for the fish.

LOUISIANA PROPOSES INNOVATIVE NEW MENHADEN RULES

 

About one month ago, a purse seine boat, surprised and frightened by the size of its menhaden catch, cut its net loose, thereby dumping close to 900,000 dead fish less than a mile off the Louisiana coast.  The incident created quite a stink, both literally and figuratively, as the rotting mass of baitfish commanded the attention of everyone in the immediate vicinity.

Recreational fishermen, various conservation groups, and some charter boat captains were dismayed by the waste.  Menhaden are one of the key forage species along the Gulf and Atlantic coasts, and many people are concerned that the menhaden fishery, which removes somewhere between 600 and 900 million pounds of menhaden from Louisiana waters each year, is removing baitfish needed to sustain healthy stocks of speckled trout (spotted seatrout), red drum, and other species.

Louisiana state fisheries managers appear unconcerned.  They note that the entire fishery removes only about 2% of the Gulf’s menhaden population; killing 900,000 fish, which amounts to less than one-tenth of one percent of annual landings, has a trivial impact on the menhaden stock.  In the words of Jason Adriance, who works for the Louisiana Department of Wildlife and Fisheries,

“A couple million extra is insignificant.”

Of course, the menhaden nets don’t only kill, and sometimes waste, menhaden.  It’s fairly typical for the fish that feed on menhaden to shadow the schools, even when they’re not actively feeding, occasionally taking a cripple that might happen by, and sometimes exploding into a more active feeding mode.  When the purse seines surround a big menhaden school, it’s not unusual for the nets to surround and kill some of the predators, too.  And because the seines are very large and hang deep in the water, so that they can be effective when fished well offshore, they often reach all the way to the bottom when fished in the shallow nearshore sea, scraping up various unwanted animals whether or not such critters were paying attention to the menhaden passing overhead.

Thus, the Louisiana news site nola.com reported that

“Anglers spotted a large amount of bycatch, including redfish, floating belly-up among the menhaden.  Photos of the dead fish began making the rounds with recreational fishing groups this week.”

Omega Protein Corporation, a United States subsidiary of the Canadian conglomerate Cooke Seafood and the intended processor of the menhaden that were spilled, has expressed little remorse over the incident.  Again quoting nola.com,

“The menhaden fishing boat was a victim of its own success, said Omega spokesman Ben Landry.

“’We’ve been experiencing some really, really big schools down in southwest Louisiana,’ he said.  ‘The captain thought he brought back 500,000 pounds.  Turns out it was a lot more than that.’

“The net was so overloaded that a larger ‘mothership’ could not safely get the fish aboard.  The captain ordered the net cut free just before it ripped open and drifted away.

“’He knew he’d lose the net because it had gotten too heavy,’ Landry said.  ‘’Then the weight of the fish ripped the net.’

“Having to cut a net is rare, but large net tears happen two to three times a year, Landry said.”

So the menhaden boat didn’t just leave 900,000 rotting menhaden floating around in its wake.  It also left behind a 1,500-foot net, to work whatever mischief an abandoned net of that size can do when allowed to drift around coastal waters on its own.

But then, the menhaden processors were never good corporate citizens.  As nola.com reports,

“Plaquemines health officials and environmental groups have been raising alarms about Daybrook Fisheries processing plant in Empire for decades.  The plant’s own safety manager filed a lawsuit in March alleging that the plant willfully spews large amounts of fish waste into the Mississippi River and other nearby waterways, and has resisted taking basic precautions to avoid spills.

“Omega’s Abbeville plant has been the source of odor complaints from towns more than 20 miles away.  Among the environmental violations was a $1 million fine in 2017 for twice dumping large volumes of polluted water into the Vermillion River.

“In 2019, Omega agreed to pay $1 to resolve allegations that the company obtained a government loan by falsely certifying compliance with clean water laws…”

Massive fish kills, torn and lost nets, the bycatch and waste of valued food and sport fish, and water quality issues are nothing new nor unusual for the menhaden purse seine fleet.  As I reported earlier this year, the same thing has been going on in the Virginia portion of the Chesapeake Bay.  If you live, boat, swim, or fish in waters that host one of the large-scale menhaden fisheries, you get used to seeing that sort of thing, even if you never really become inured to it.

However, what’s happening in Louisiana right now is something new.  The Commonwealth of Virginia has long tolerated and actively supported the industrial menhaden fishery, and whatever abuses it might heap upon the state’s waters and the citizens who seek to enjoy them.  Louisiana seems to be far less compliant.  While the state still doesn’t believe that the menhaden harvest is causing harm to local ecosystems, it seems to have a very strong aversion to the waste of marine resources and the abandonment of fishing gear in public waters.

Thus, Louisiana’s Department of Wildlife and Fisheries announced that it has

“adopted a Notice of Intent (NOI) to prohibit the waste of fishery resources and abandonment of menhaden purse seine gear during fishing operations

“The proposed rule would:

>  Prohibit abandoning menhaden purse seine gear during the course of fishing operations or while on the water and establish a 48-hour window to remove all gear before it is considered abandoned.

>  Establishes marking requirement for gear that is released to facilitate retrieval and warn of navigational hazards by the released gear.

>  Would require notification to LDWF within 2 hours of any release of menhaden.

>  Requires that all reasonable attempts be made to retrieve menhaden and bycatch from the environment in the event of a release.

>  Defines that a violation of these rules shall be considered a waste of a fishery resource subject to civil fine and restitution and abandonment of gear shall be considered a commercial littering violation.”

Comments will be accepted on the proposed regulations through January 5, 2023.

It’s far too early to tell whether such proposed regulation will be adopted and, if it is adopted, what form the final regulation will take.  However, the Louisiana proposal is notable on a number of counts.

First, it represents the first attempt, in any state, to address the problem of menhaden spills in coastal waters.  Up until now, such spills, even when caused by the intentional actions of vessel crew, have been treated as if they were unavoidable acts of God, and not the result of human actions and human error.  For the first time, in any state, Louisiana would hold the menhaden fleet accountable for the spills and resultant problems that they cause.

The Louisiana proposal also recognizes the spills for what they are—the avoidable waste of a public resource.  Hopefully, the concept of waste of a fishery resource will extend beyond merely the menhaden, to the food fish and gamefish that are killed as bycatch in the menhaden fishery.

Finally, and perhaps most significantly in the long term, should the proposed regulations become law, a violation would not only subject the fishermen to civil fines, but also a payment of restitution, to compensate the people of Louisiana for their loss of the benefits provided by the wasted menhaden and, again, hopefully also the loss of fish killed as bycatch in the menhaden nets.

In recent years, much of the criticism leveled at the industrial menhaden fishery has focused on its removal of important forage fish from the ecosystem, and the supposed impact such removal has on marine predators.  Unfortunately, we still lack clear and unambiguous scientific studies which demonstrate that the menhaden fishery is doing real and measurable harm to coastal ecosystems.

The Louisiana proposal shifts the debate from the hypothetical ecosystem harm caused by the menhaden fishery to the very real waste of living marine resources attributable to menhaden spills, the potential hazards associated with abandoned nets, and redressing the harm that flows from such actions.

In charting its new course, Louisiana is showing other states the path that they ought to travel, if the industrial menhaden fishery is ever to be held accountable for its excesses, and properly brought under fishery managers’ control.

 

 

 

 

NMFS SEEKS ANGLER INPUT ON RECREATIONAL FISHING POLICY

 

Most anglers probably don’t realize that the National Marine Fisheries Service (NMFS) has a policy that addresses recreational fisheries management (Recreational Policy). Most anglers have probably never even considered the issue.

 

Yet it’s an issue that deserves some thought for, as the introduction to the Recreational Policy notes, “The purpose of this policy is to provide guidance for Agency consideration in its deliberations pertaining to the development and maintenance of enduring and sustainable high quality saltwater recreational fisheries. This policy identifies goals and guiding principles to be integrated into NMFS’ planning, budgeting, decision-making, and activities, and includes examples of implementation concepts and strategies supported by NMFS.”

The existing Recreational Policy, which was adopted in 2015, is an outgrowth of discussions held at the 2014 National Saltwater Recreational Fishing Summit, an event jointly sponsored by NMFS and the Atlantic States Marine Fisheries Commission. Those discussions, in turn, were informed by a document titled “A Vision for Managing America’s Saltwater Recreational Fisheries” (Vision Statement), which was created by a panel assembled by a coalition of sportfishing industry and “anglers’ rights” organizations, and issued under the aegis of the Theodore Roosevelt Conservation Partnership a month before the 2014 Summit began.

 

The Vision Statement’s very first recommendation was that NMFS adopt a recreational fishing policy, so it wasn’t surprising that NMFS did so just one year after the 2014 Summit was held.

The Recreational Policy is built “around six overarching themes: 1) Support ecosystem conservation and management, 2) Promote public access to quality recreational fishing opportunities, 3) Coordinate with state and federal management entities, 4) Advance innovative solutions to evolving science, management, and environmental challenges, 5) Provide scientifically sound and trusted social, cultural, economic, and ecological information, and 6) Communicate and engage with the recreational fishing public.

While those broad themes generally coincide with the concerns of the recreational fishing public, many of the details were clearly driven by the coalition of recreational fishing organizations, centered on or around the Gulf of Mexico, that created the Vision Statement and engaged in an intense lobbying effort that urged NMFS to include the Vision Statement’s priorities in its new Recreational Policy.

 

Now, NMFS is reaching out to saltwater anglers and to the larger recreational fishing community, asking them to suggest needed changes to the Recreational Policy. As the agency explains, “Developed with extensive public input, the 2015 Policy reflects the priorities of the day…NOAA recognizes the need to adapt with a changing climate and the evolving needs of recreational fisheries and anglers. With the perspectives shared during the 2022 National Saltwater Recreational Fisheries Summit, NOAA Fisheries requests your input on revising the Policy…”

 

Given the conversations that took place at the 2022 National Saltwater Recreational Fisheries Summit, that’s a welcome invitation, and one that saltwater anglers ought to take advantage of.

The 2022 Summit may have been, in terms of diverse angler input, the most impressive summit yet. While the 2014 Summit was largely orchestrated by a handful of organizations seeking to promote the Vision Statement’s priorities, and the 2018 National Saltwater Recreational Fishing Summit, although far more freewheeling, still saw the same organizations try to control the debate, the 2022 Summit was the first in which the voices of a broad array of anglers, representing every corner of the coast and largely unaffiliated with the big national advocacy groups, achieved something like parity with those of the Gulf-centered industry organizations.

And those anglers had some interesting things to say, which suggested that the Recreational Policy was, indeed, in need of revision. While the 2014 Summit was all about promoting the Vision Statement, and the 2018 Summit saw, as the resulting report noted, “participants [discuss] the key obstacles impeding increased opportunity and stability in recreational fisheries,” the 2022 Summit, with its theme “Recreational Fisheries in a Time of Change,” was focused on the future, and anglers thoughts of what such future should be.

NMFS has released the “National Saltwater Recreational Fisheries Summit Report 2022,” which describes the topics addressed and the themes that emerged. It describes a few “cross-cutting themes” that anglers returned to throughout the two days of the 2022 Summit. In describing such themes, the report observed that

 

There is broad recognition that climate change is affecting traditional angling opportunities, and in order to effectively adapt, more attention is needed to understand and regularly incorporate human dimension considerations into decision making. This ranges from assessing the intrinsic values of fishing to better understand [optimum yield], to considering cultural practices associated with non-commercial fisheries in the Pacific Islands…

Throughout the sessions, there were calls for more precise and timely fishery-dependent and independent data that accurately represent the fishery. These are not new requests; however, some of the solutions offered represent a shift in thinking away from a heavy reliance on fishery-independent data, and towards new and more diverse data streams…However, the path to collecting and incorporating new data streams, including mechanisms to assure their scientific validity, may require shifts in federal and state management, and partnerships with stakeholders.

…Finally, participants voiced support for recent recommendations from the 2021 National Academies of Sciences, Engineering, and Medicine (NASEM) review of the Marine Recreational Information Program (MRIP), and the role of regional MRIP implementation teams in addressing those recommendations.

Management flexibility was viewed as a double-edged sword by various stakeholders in the recreational fishing community, where some were optimistic about its potential, and others expressed apprehension. There was traction around the desire of anglers to maintain fishing opportunities (i.e., the experience) over catching certain amounts of target species…

…Particularly during this time of increased offshore development in wind energy and aquaculture, the recreational fishing community is being asked and urged to be more involved in scoping, review, mitigation, and compensation processes. This is in addition to specific state and regional fisheries meetings, and broader regional or coastwide conversations around climate change/scenario planning and [Fishery Ecosystem Plans]. Stakeholders are participating in these forums, but questions remain around how to deepen the reach to the angling community, and how to increase the diversity of those around the table…

None of those issues is adequately addressed in the current Recreational Policy.

The most notable omission from the existing Recreational Policy is the lack of any consideration of what the 2022 Report calls “the intrinsic value of fishing,” and “maintain[ing] fishing opportunities…over catching certain amounts of target species.” Instead, the Recreational Policy emphasizes harvest, focusing on things such as artificial reefs that aggregate fish into easily exploitable concentrations, “aquaculture tools and technologies” (i.e., hatcheries that lessen the need for sustainable management of wild fish stocks), allocating fish to the recreational sector, “longer fishing seasons,” and “increased allowable catch levels.”

A revision to the Recreational Policy that recognizes the purely recreational aspects of angling, and the value of an abundance of fish in the ocean, apart from any harvest considerations, seems to be badly needed.

The quality of recreational data has been among anglers’ perennial concerns. While the Recreational Policy includes aspirational language about “improving fisheries science and management,” “developing and supporting cutting-edge scientific tools,” and “collecting recreational catch and effort…data that support transparent and participatory management and conservation of saltwater recreational fisheries,” it never addresses the need to use available data appropriately, with regard for its inherent limitations.

The precision of Marine Recreational Information Program data is highly dependent on the number of anglers surveyed; when the data reflect angler activity in a limited geographical area or over only a short period of time, such precision is badly degraded. Yet fishery managers continue to craft management measures based on a single state’s data, often further narrowed by sector or two-month wave, even thought the scientific validity of such data is questionable.

 

Amending the Recreational Policy to discourage the use of such unreliable data would lead to more effective regulations that bolster anglers’ faith in the management process, and better align with the recommendations made by the National Academies.

Finally, the Recreational Policy should be changed to provide for far greater outreach, which encourages a more diverse set of anglers to engage in the management process. While such policy already talks about “empowering” anglers to engage with fishery managers, such engagement is not actively encouraged, nor does it typically occur. Instead, a small group of affiliated organizations purport to speak for the entire angling community, and too often promote management measures that promote their short-term concerns instead of anglers’ long-term interests.

Fortunately, NMFS is now giving anglers an opportunity to speak for themselves, by providing them the opportunity to suggest revisions to the Recreational Policy.

From now through December 31, 2022, anglers may submit their comments on the Recreational Policy through the NMFS website. The agency has also scheduled three webinars, during which comments will be accepted; although two such webinars have already occurred, a third will be held on November 22, 2022, from 6:00 to 7:00 p.m. Eastern time. NMFS will also be making a number of live presentations, usually in conjunction with regional fishery management council meetings, between now and December 1, 2022.

Thus, anglers will have ample opportunity to provide NMFS with comments that reflect their concerns and to help amend the Recreational Policy to better address recreational fishermen’s wants and needs.

It’s an opportunity that shouldn’t be missed.

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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/

 

AMENDMENTS TO MSA REAUTHORIZATION BILL PUT SHARKS IN THE CROSSHAIRS

 

Last Thursday, the House Natural Resources Committee completed its markup of H.R. 4690, the Sustaining America’s Fisheries for the Future Act, and sent it along for consideration by the full House of Representatives.  H.R. 4690, which represents the first meaningful effort to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act since 2006, is a good bill, and legislation that’s very much needed, both to plug some existing holes in current law and to shape Magnuson-Stevens into a law better suited to meet future challenges.

Hopefully, the House will approve the bill later this fall, it will find similar success in the Senate, and be signed into law before the 117^th Congress comes to an end.

Still, the version of H.R. 4690 that emerged from Committee is not quite as good as the version that existed before.  The political process, when it is working well, is a process of discussion and compromise, where everyone’s concerns receive due consideration, and not the sort of dysfunctional, winner-take-all dogfight that it has too often been in recent years.

In that regard, the good news is that the version of H.R. 4690 that was voted out of Committee included amendments that arose out of exactly the sort of discussion and compromise that should underlie the legislative process.  The bad news is that some of those amendments, offered by Rep. Garret Graves (R-LA), who frequently caters to some of the more conservation-hostile elements of the recreational fishing community, could easily undermine shark conservation and management in the northwest Atlantic Ocean and Gulf of Mexico.

One such amendment reads

“Within 1 year of the enactment of this section, the Secretary shall enter into an agreement for an independent analysis to be done on shark populations in the Gulf of Mexico and Atlantic coasts and before starting the survey, develop a plan to integrate the results of this study into the Secretary’s own data sets and fishery management measures.  [emphasis added]”

Another would create a funding and research priority for

“Projects to better understand shark depredation, what causes increases in the behavior, and how to best address the behavior.”

Read in a vacuum, those amendments might seem relatively benign.  However, read in the context of the hostility exhibited by saltwater anglers in the southeastern United States toward coastal shark populations, they suggest a real and growing threat to effective shark conservation, and to efforts to rebuild overfished shark populations to sustainable levels.

Consider how predators feed.

Any predator, whether it lives above or beneath the sea, must find a way to capture and subdue its prey.  Prey may be taken by pursuit or by ambush, but in either case, it’s always better for the predator if such prey is injured or otherwise handicapped, so that it can be more easily caught and devoured.

Taking that proposition into the marine environment, I learned when I was still very young that if I cast a treble hook into a school of bunker (more properly, “Atlantic menhaden”) and jerked that hoottk through the packed aggregation of fish quickly enough to foul hook one in the side, there was a very good chance that a bluefish would attack that bunker and cut it in half before I could reel it back to the boat. The menhaden school might have been fifty or more yards in diameter; many covered a few acres, and contained untold thousands of fish, but despite such rich abundance, the bluefish would choose to ignore all of the healthy and free-swimming bunker and choose to attack my hooked and struggling menhaden instead.

That fact is well-known to anglers.  “Snag-and-drop,” a technique that sees anglers foul hook menhaden, then allow the hooked fish to struggle within and below the school, has been practiced for many, many years.  It was arguably the most popular way to catch big striped bass up until the Atlantic States Marine Fisheries Commission mandated the use of circle hooks when bait fishing for bass, beginning in the 2020 season; it is so productive that, despite its prohibition, many unprincipled anglers continue to fish that way today.

And we’re not only talking about fish eating menhaden.  When I fish on wrecks south of Long Island, I have had days when the bluefish made it nearly impossible to bring a black sea bass or scup to the surface; every one that was hooked was attacked and partially eaten on the way back to the boat.

In the fish-eat-fish world of the ocean, that’s just the way things work.  I’ve had blue marlin attack hooked dolphin.  Bluefish will attack not only scup and black sea bass, but just about any hooked fish if it’s smaller than them; I’ve seen cod, weakfish, flounder, and even striped bass fall victim to their jaws.  In the South, barracuda will frequently savage smaller fish as they struggle against an angler’s line; in the Pacific, both lingcod and halibut will latch onto hooked rockfish.

All of those things are pretty well accepted as the price that one pays for fishing in the sea.

But when it comes to sharks, for some reason, things are different.  Perhaps because anglers can’t, or at least choose not to, eat them, their depredation earns them the label of nuisance, and anglers call for their numbers to be reduced.

That is a particular issue in the southeast, where sharks are picking off anglers’ hooked snapper and grouper, and both fishermen and charter boat operators are beginning to complain that there are too many sharks in the ocean.

Such claims are clearly groundless.  Dusky sharks, for example, have been badly depleted, primarily by the longline fleet; the stock won’t be rebuilt any time soon.  The National Marine Fisheries Service has advised that

“The updated projections estimated that the target rebuilding years range from 2084-2204, with a median of 2107.”

In other words, if we’re really lucky, and everything goes right, there’s a chance of rebuilding the stock in 62 years, by which time most of the people reading this will probably be dead, and a child born today would, if current rules still applied, be eligible to receive Social Security.  If things don’t go so well, we’re looking at more than 180 years before the stock rebuilds, which makes it clear just how much damage was caused by the overfishing of the past few decades.  Even if we accept the 85-year median rebuilding time as the most likely outcome, NMFS warns that

“In order to achieve rebuilding by 2107 with a 50% probability, the final models project that [the fishing mortality rate] on the stock would have to be reduced by 20-85% (median=35%) from 2015 levels.”

That’s a pretty substantial cut to achieve in a fishery where mortality is almost entirely attributable to bycatch, and not to a directed fishery.  And it strongly suggests that there aren’t too many dusky sharks around.

Sandbar sharks, which are closely related to duskies, are faring a little better.  Scientists believe that they may be fully recovered by 2071, in only about 50 years.  So there probably aren’t an excess of sandbars out there either.

Another fairly close relative, the bull shark, may be faring a little better.  A study published in 2013 suggests that bull sharks off the coast of Texas may be experiencing an increase in abundance, which is probably attributed to a gill net ban in Louisiana, since such nets will no longer be ensnaring and killing the bull sharks as bycatch.  But even if that is true, it’s important to note that the increased number of fish represents a return to more normal levels of abundance after the Louisiana gill nets were outlawed, and not some unexpected spike in the population.

With respect to lemon sharks, another common southeastern species, a study that came out last year

“suggested that Lemon Shark stock abundance has been relatively stable since the mid-1990s, with some estimates of prior depletion.” 

So lemon shark populations, far from increasing, are holding steady at levels that are probably lower than they once were.

But that’s not what we’re hearing from a lot of southeastern fishermen.  They believe that there are already too many sharks in the ocean, and that numbers need to be reduced, to keep them from stealing too many hooked fish.  One charter boat captain, who helped to organize a tournament specifically designed to kill sharks, particularly bull sharks, and remove them from the ecosystem tried to justify such event by saying,

“What we’re doing brings [shark overabundance] to the fore.  There is a small imbalance in our shark population and we would like our federal government to conduct a stock assessment.”

Another charter boat captain, also a tournament organizer, complained,

“Any boat that comes out and parks on the local reef immediately has 10 or 12 sharks under your boat every second or every time you go out there to fish.”

He, too, believes that the shark population should be whittled down.

Put in that context, the motivation behind Rep. Graves’ amendments to H.R. 4690 becomes clear.  Once again, he is attempting to assuage the recreational fishing community, and play to some of their baser motivations, in this case to kill off marine competitors for snapper, grouper, and other recreationally important fish, regardless of the impact on the marine ecosystem.  

To such fishermen, the shark that picks off a fish hooked by an angler is no longer merely a marine predator doing what comes naturally, feeding on crippled prey, but a malevolent pest that must be removed.  Echoes of now-discredited terrestrial efforts to kill off wolves, foxes, coyotes, hawks, etc. in order to reduce competition for game animals prized by human hunters cannot be ignored.

NMFS has already found that a number of shark species, including sandbars and duskies, are overfished and in need of rebuilding.  But that finding, as accurate as it may be, is not the answer that fishermen want to believe, so Rep. Graves’ amendment calls for “an independent analysis” of shark populations conducted by someone—who and how they are chosen remains unclear—who Rep. Graves and the fishermen undoubtedly hope will come up with a different conclusion.

When and if they do, the real kicker in the amendment comes in:  NMFS will not only be required “to integrate the results of this study into the Secretary [of Commerce]’s own data sets and fishery management measures,” regardless of the quality of the study and the information on which it is based, but NMFS must also figure out how to achieve such integration “before starting the survey.”  

Thus, the results of the so-called “independent survey” must be used to manage shark stocks regardless of the quality of the science and regardless of whether federal fishery managers believe the results of such survey are useful for shark management.  And they must figure out how to do such things before they even know how such survey is conducted and what it will say.

Because, after all, the purpose of the amendment is not to find the true answers to fisheries issues, but rather to find the answer that the fishermen Rep. Graves opts to support are looking for.

Of course, the Magnuson-Stevens Fishery Conservation and Management Act also requires that

“Conservation and management measures shall be based upon the best scientific information available,”

so Rep. Graves’ amendment seems to set up an potentially irreconcilable conflict:  The law demands that, if the results of the “independent study” do not represent the best scientific information available, they should not be used for conservation and management of the shark fishery, yet if the amendment becomes law, the law will also require that the results of such independent survey be used for conservation and management, even if the scientific information provided by such survey is suspect.

Given such conflicting provisions, it would seem that if such amendment becomes law, at least one lawsuit will be inevitable.

Rep. Graves’ other shark-related amendment doesn’t create the same sort of legal issue, but it does create some confusion.  It would make a study of shark depredation a priority for NMFS research and funding.  That wouldn’t be particularly remarkable, if a NMFS study of shark depredation wasn’t already going on.

A year ago, NMFS awarded a $195,000 grant to Florida Atlantic University’s Harbor Branch Oceanographic Institute and to Mississippi State University to study shark depredation in the South Atlantic and Gulf of Mexico regions, respectively.  There seems to be little need to prioritize research and funding for such topic, when the funding has already occurred, and the study is already going on.

Once again, one has to wonder whether prioritizing new research on the same subject is intended to provide some sort of insurance that, if the current study doesn’t come to the conclusions that Rep. Graves and the fishermen want, another study already in the wings might do so.

When someone starts funding studies, already knowing what they want those studies to conclude, there is a serious problem.

Such problem should not be seen as H.R. 4690’s fatal flaw.  Even with those amendments in place, H.R. 4690 ought to be passed.  It will improve fishery management too much to be allowed to die.

At the same time, if the Rep. Graves’ two shark amendments could be removed on the House floor, those concerned with good conservation and management certainly wouldn’t complain.