NOAA'S TURN: AGENCY WEIGHS IN ON MARINE RECREATIONAL INFORMATION PROGRAM

 

When the Modernizing Recreational Fisheries Management Act (Act) was passed in 2018, it included the provision that

 

The Secretary [of Commerce] shall, within 90 days after the date of the enactment of the Modernizing Recreational Fisheries Management Act of 2018, enter into an agreement with the National Academy of Sciences to evaluate, in the form of a report, how the design of the Marine Recreational Information Program, for the purposes of stock assessment and the determination of stock management reference points, can be improved to better meet the needs of in-season management of annual catch limits…and what actions the Secretary, [regional fishery management] Councils, and States could take to improve the accuracy and timeliness of data collection and analysis to improve the Marine Recreational Information Program and facilitate in-season management; and within 6 months after releasing [such] report…submit to Congress recommendations regarding changes to be made to the Marine Recreational Information Program to make the program better meet the needs of in-season management of catch limits and other requirements under such section; and alternative management approaches that could be applied to recreational fisheries for which the Marine Recreational Information Program is not meeting the needs of in-season management of annual catch limits… [internal formatting omitted]

The National Academy of Sciences issued the report called for in the Act, Data and Management Strategies for Recreational Fisheries with Annual Catch Limits (NAS Report), in 2021. In February 2023, the National Marine Fisheries Service (NMFS) released the required Report to Congress, in which the agency addressed the NAS Report’s recommendations.

 

There were twelve such recommendations, which could be grouped into five broad categories: 1) Improving the timeliness and precision of MRIP; 2) Calibrating the data provided by the Marine Recreational Information Program (MRIP) with that provided by ancillary surveys; 3) Considering provisions that would allow fishery managers to roll over the uncaught portion of the recreational catch limit into succeeding years; 4) Reviewing the National Standard 1 guidelines; and 5) Engaging recreational stakeholders to discuss the concept of “optimum yield.”

Despite such recommendations, the NAS Report and Report to Congress won’t necessarily have a substantial impact on MRIP, since the Act called for both to focus on “in-season management of annual catch limits,” and as the Report to Congress observed, “In-season management is not required for most fisheries nationwide due to broad regional diversity in management needs.” At the same time, many of the recommendations are applicable to any recreational fishery, and not merely to those requiring in-season management, and so may be applied more broadly.

Improving MRIP

That is particularly true of recommendations that would improve the timeliness and accuracy of MRIP estimates. However, the NAS Report made it clear that, while MRIP provides “critically important” data to fishery managers, and offered suggestions for improving the quality of such data, there were practical limitations to such improvements.

Currently, MRIP provides catch and landings estimates broken down into two-month “waves.” Preliminary data from each wave is customarily made available about forty-five days after the wave’s end. The NAS Report notes that MRIP could provide data of equivalent quality on a monthly basis, but that it would require “an approximate doubling of the resources…allocated to its survey programs” in order to do so.

The NAS Report also found that, if provided with additional resources, MRIP could provide preliminary estimates for each two-month wave about two weeks sooner than it does today, but that doing so “would put additional stress on existing MRIP staff and systems,” and noted that “for purposes of in-season management, the benefits of a modest advance in the release of preliminary estimates for bimonthly waves would not be likely to justify the costs of accelerating the data processing and estimation phases of each bimonthly cycle.”

NMFS’ responses in the Report to Congress were in general accord with the NAS Report’s findings, although the agency suggested that such report might have overestimated the cost of reporting recreational data on a monthly, rather than bimonthly, basis. The Atlantic States Marine Fisheries Commission, which was also invited to comment on the NAS Report, proposed reducing the costs of monthly data reports by limiting such reports to the months of May through October, when angling activity was greatest, and relying on bimonthly reporting for the rest of the year.

Regardless of the improvements that might be made to MRIP itself, the NAS Report highlights the benefits of supplementing MRIP with data from other sources. One suggestion, that has parallels in the management of some game birds and mammals pursued by hunters, is that managers issue tags which must be affixed to harvested fish; another is that anglers participating in NMFS-managed fisheries obtain permits that would make it easier to identify and survey such anglers.

While the former approach may appear attractive, the Report to Congress made it clear that it was disfavored by NMFS, which stated that “Harvest tags have been widely considered for in-season management, but only attempted at the Federal level for various Atlantic [highly migratory species] and at the state level in Louisiana. In those instances, they were unsuccessful due to costs, underreporting, and noncompliance.”

Requiring permits for anglers fishing in federal waters received a slightly warmer response, with NMFS noting, “A variety of license endorsements have been successful in some specific cases (e.g., Atlantic [highly migratory species], and Louisiana’s LA Creel), but may be difficult to implement at large scales due to high potential for bias and burden on state and regional staff. [references omitted]” NMFS expressed a willingness to consider such permits, on a case-by-case basis, if recommended by a regional fishery management council.

The agency was much more receptive to the recommendation that MRIP be supplemented with surveys conducted by states, regional fishery management commissions, or other entities. The Report to Congress noted that “NMFS and partners indicate that this recommendation is being implemented in the Atlantic, Gulf, and West Coast regions…NMFS further felt that management needs of regional or Council-managed species would best be met by ensuring new supplemental surveys truly supplement MRIP, meaning that they are designed to be statistically comparable and compatible with existing MRIP estimates…”

Calibrating Data

Such comment leads directly to what may be the most controversial issue addressed in the NAS Report: The need to calibrate supplemental surveys to make them compatible with MRIP.

It has been a hot topic in the Gulf of Mexico red snapper fishery, which is one of the few recreational fisheries where in-season management comes into play. NMFS has agreed to give each state a share of the overall recreational harvest, along with some latitude to adopt its own red snapper season, size limit, and bag limit, with the understanding that a state’s season will close once its recreational quota is landed. Each state has developed its own recreational data collection program to track red snapper landings.

 

The problem is that each of the state data programs uses a different methodology than that used by MRIP or any of the other states, so none of the state catch estimates are directly comparable to any other set of data. That doesn’t matter for Florida or Louisiana, as their estimates are similar to MRIP’s, but it is causing some trouble in Alabama and Mississippi, where state estimates are far lower than those made by MRIP, causing anglers to overfish such states’ quotas. NMFS has calibrated Alabama and Mississippi’s estimates to be compatible with MRIP, but because that has led to smaller state quotas in 2023, anglers in those states are opposing NMFS’ efforts.

 

Such issues are reflected in the NAS Report’s comment, “Compared with MRIP surveys, alternative or supplemental surveys have been shown to provide different estimates for recreational catches for the same fishery (stock and area). Differences between estimates can be moderate, or quite substantial.” They are also reflected in the comment that “Public perceptions of differences between MRIP and alternative surveys in methodology, final catch estimates, and the precision of the estimates are a source of consternation among anglers, fisheries managers, and other stakeholders.”

In response to such comments, the Report to Congress states that, as one might expect, NMFS will continue to work with its fishery management partners to calibrate MRIP and any supplemental surveys. Where the estimates produced by MRIP and such surveys are “significantly” different, NMFS intends, “subject to availability of funds,” to investigate the cause of such differences, “with particular emphasis on determining the nature and extent of non-sampling error;” make changes that address the source of such non-sampling error; recommend and provide technical support for its fishery management partners’ research into the sources of error in supplemental surveys; and continue to educate such partners and stakeholders with respect to “information about sources of survey error and the basis and need for calibration.”

The importance of the latter step cannot be underestimated, for even if all the sources of error in the surveys are addressed, without adequate public outreach and education, stakeholders will still be vulnerable to various parties’ efforts to undercut faith in the data collection and calibration process, in order to achieve political goals.

The NAS Report and the Report to Congress address many other technical issues related to calibrating catch estimates and improving the accuracy and timeliness of MRIP, at a scale too fine to be discussed in further detail. Fortunately, the other items included in the reports can be summarized more easily.

Improving Recreational Management

The possibility of rolling over the uncaught portion of an annual catch limit, in whole or in part, so that it may be landed in a subsequent season, is a question that sometimes arises in regional fishery management council deliberations. The NAS Report notes that such rollovers “could allow the recreational sector to achieve a high level of [annual catch limit] utilization in a way that would be both practical and cost-effective while reducing risks of extreme overages and subsequent payback.”

While that comment isn’t wrong, such rollovers may not be appropriate in every circumstance, particularly in fisheries for species where achieving “a high level of [annual catch limit] utilization” is not necessarily anglers’ primary goal. NMFS, in its Report to Congress, states that it has developed guidance relating to such rollover provisions, and further states, “The implementation of carry-over provisions must be done on a fishery-by-fishery basis, and regionally, NMFS and partners indicated the use of carry-over provisions have only been successful in specific cases.”

Thus, while regional fishery management councils may consider such rollovers when circumstances warrant, they probably won’t appear in too many management plans.

The NAS Report also recommended that “NMFS should review the National Standard 1 guidelines to assure that agency guidance with respect to recreational accountability measures aligns with the timeliness and precision of harvest estimates produced by MRIP.” NMFS replied that it has already done so, stating in its Report to Congress that “NMFS has reviewed the National Standard 1 guidelines and believes that they provide the flexibility to develop [accountability measures] that are appropriate, given the precision and timing of NMFS estimates.”

NMFS goes on to state that it supports the regional fishery management council’s efforts to craft appropriate accountability measures, and that it believes that the current National Standard 1 guidelines provide sufficient flexibility to allow such councils to do so.

What the NAS Report didn’t recommend, but perhaps should have, is that NMFS actually follow the National Standard 1 guidelines that it develops. Very few of the annual specifications developed by the regional fishery management councils include the annual catch targets recommended in the guidelines to account for management uncertainty, much of which is directly related to “the timeliness and precision of harvest estimates produced by MRIP” specifically referenced in the NAS Report.

Finally, the Report to Congress responds to a NAS Report recommendation that “NMFS and the Councils should develop a process for engaging recreational fisheries stakeholders in a more in-depth discussion of optimum yield and how it can be used to identify and prioritize management objectives that are better suited to the cultural, economic, and conservation goals of the angling community.” Such recommendation raises an issue too often ignored by fisheries managers.

However, the NAS Report seemed to conflate the concept of setting an optimum yield with the precise monitoring of recreational catch limits, something that the Report to Congress noted was “not directly related to optimum yield, but raise[s] additional, separate considerations.” More relevant to the optimum yield issue, NMFS provided a “Proposed Course of Action,” that “NMFS continued the discussion of optimum yield at the National Saltwater Recreational Fisheries Summit in March 2022, and will develop further courses of action related to this recommendation, as needed.”

In view of that response, it’s worthwhile to note how the final report from the Summit described such discussion of optimum yield. It describes how Mike Leonard, Vice President of Government Affairs for the American Sportfishing Association, observed that federal fisheries law permits setting annual catch limits below maximum sustainable yield when other social and economic factors are considered, but that

 

this has not been put into practice by most [regional fishery management] councils. A review and analysis of the use of [optimum yield] in U.S. fisheries management found that current [annual catch limit] and [optimum yield] specifications processes rarely account for social and economic factors, or ecosystem considerations, and if they do, it is on an ad-hoc, species-specific basis.

Catch and release is being viewed as underutilizing the resource just because they are catching below the [annual catch limits]. This may drive a desire to transfer allocation [from the recreational to the commercial sector].

It also described how recreational stakeholders present at the Summit seconded Mr. Leonard’s sentiments, talking about the “intrinsic value” of recreational fishing that can’t be represented merely in economic terms, or in pounds of dead fish; one group of anglers highlighted the “economic value of fish left in the water, understanding what satisfaction means to different stakeholders,” and “what the values are for a particular fishery.”

Yet, when regional fishery management councils consider optimum yield, to the extent that they consider it at all, their emphasis is consistently on just the “yield,” the number of fish that may be killed and retained, rather than on the “optimum.” Managing a primarily recreational stock for abundance and its recreational value remains an alien concept; when the Mid-Atlantic Fishery Management Council last amended its management plan for the bluefish fishery, a fishery where anglers are responsible for about 85% of the landings and release close to two-thirds of the bluefish that they catch, it eschewed any meaningful analysis of optimum yield, and instead included a provision that would transfer any “unused,” meaning “unharvested,” recreational quota to the commercial sector.

 

Thus, this issue, too, deserves NMFS’ attention.

In the end, the NAS Report, and NMFS’ Report to Congress, focused primarily on recreational data issues, and such issues are unquestionably important and in need of attention. But NMFS should not ignore the management issues; they are also important, and need attention, too.

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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/

WILL MENHADEN MANAGEMENT REFORM COME TO THE GULF OF MEXICO?

 

On February 28, the National Marine Fisheries Service announced that its scientists had developed “A Pathway Toward Ecosystem-Based Management for Gulf Menhaden.”

The announcement heralded the publication of a new study, performed by NMFS' Southeast Fisheries Science Center.  The paper, “Identifying trade-offs and reference points in support of ecosystem approaches to managing Gulf of Mexico menhaden,” appeared in the January 6, 2023 edition of the journal, Frontiers in Marine Science.

In announcing the study, NMFS noted that it will be used

“to evaluate how changes in menhaden fishing pressure may effect the entire ecosystem.  Gulf menhaden have the largest fishery yield in the Gulf of Mexico and support the second largest fishery by weight in the United States.  Their presence in the Gulf if crucial.  Fisheries management is becoming increasingly aware of this species’ importance, particularly after the successful implementation of an ecosystem approach for Atlantic menhaden.  There is also growing interest in the management of the stock given the commercial fleet’s Marine Stewardship Council certification and increasing interest from stakeholders across the Gulf states.”

The NMFS release refers to the Atlantic States Marine Fisheries Commission’s decision to move forward with ecosystem reference points for Atlantic menhaden in 2017, the and development of a benchmark stock assessment which considered such reference points in 2020; a stock assessment update, utilizing ecosystem reference points, released in 2022, found the Atlantic menhaden stock to be healthy, and the fishery to be achieving the fishing mortality and fecundity targets.

Given the importance of Gulf menhaden as a forage fish, it isn’t surprising that a similar effort to develop ecosystem reference points has emerged in the Gulf of Mexico.

In some ways, the new study is similar to the work that was done to develop ecosystem reference points for Atlantic menhaden, but it also differs in important ways.  On the East Coast, biologists had been working on multi-species population models, which included Atlantic menhaden, since the early 2000s.  In the Gulf, the recently-released study was the first of its kind.

In addition, the ecosystem reference points for Atlantic menhaden focus on the needs of the striped bass, which is both a major predator and the focus of what is arguably the coast’s primary recreational fishery.  In the Gulf, no single species has a similar status, and the ecosystem reference points were thus required to examine the needs of multiple fishes. 

The Gulf study also takes a more detailed look at the impacts of bycatch in the menhaden purse seine fishery, using data from studies of purse seiners’ catch that do not exist in the Atlantic fishery.  As the study notes,

“A considerable portion of the impact of the menhaden purse-seine fishery on predatory species occurs through bycatch…

“While bycatch has historically been considered negligible compared to menhaden landings, estimated at approximately 2.35% of total fleet landings by weight, this percentage can equate to a substantial amount of bycatch…Our trade-off analysis revealed depletion of some groups attributed to increased mortality through bycatch of the purse seine menhaden fleet…  [references omitted]”

Thus, bycatch impacts attributable to industrial-level menhaden harvest are an important aspect of the ecological reference point issue.

So what, exactly, did the study reveal?

It turns out that yes, there seems to be a connection between menhaden abundance, and menhaden fishing mortality, and the abundance of predators, but the extent of that connection differs from species to species.  In some cases, it even appears that increased menhaden fishing mortality can lead to an increase in some species abundance; such counterintuitive result seems to occur because some species of fish, such as yellowfin tuna, feed heavily on squid other animals that benefit when menhaden populations are lower and thus lessen competitive pressures.

Of all the affected fishes, the various sea trout (species belonging to the genus Cynoscion, including the recreationally important “speckled trout,” Cynoscion nebulosus) probably suffer the greatest harm from the menhaden purse seine fishery; the study suggests that about 29% of their overall fishing mortality can be attributed to purse seine bycatch.  In addition, sea trout suffer from purse seiners removing menhaden from the ecosystem.  The study found

“For most groups, [biomass in 2016, the last year of the study’s time series] is higher than Btarget (B at 75% Fmsy), indicating a sustainable state of the fishery that can tolerate higher F rates.  However, for sea trout, [biomass in 2016] is lower than the B_target, indicating an unsustainable state for this group and that target biomass can be achieved by adjusting sea trout and menhaden F.  Under current sea trout F, menhaden fishing would have to be reduced to near 0 to achieve B_target, whereas if sea trout were fished at their own F_target (0.134), then menhaden F would need to be reduced to 18.9% of current rates.”

Sea trout seem somewhat unique, in that they are significantly impacted by both menhaden removals and purse seine bycatch.  In the case of many other species, only one aspect of the menhaden fishery causes most of the harm.  King and Spanish mackerel were primarily affected by a reduction in menhaden numbers; blacktip sharks, red drum, and some tuna (not including yellowfin) also were negatively impacted by increases in menhaden fishing mortality.

Purse seine bycatch had the greatest impact on “coastal piscivores” such as tarpon, ladyfish, and snook, along with large and small coastal sharks, various croakers and drum, and “oceanic piscivores” such as cutlassfish.

The good news is that the study found menhaden fishing mortality to have declined in recent years.  Between 1977 and 2007, menhaden fishing mortality would have exceeded the ecosystem-based fishing mortality target proposed by the study in all but one year; for approximately two decades between the mid-1980s and early 2000s, the ecosystem-based fishing mortality threshold would have been exceeded as well.  However, between 2008 and 2016, the last year considered in the study, the target was exceeded in only five of such years, and the threshold in only three.

While that still leaves plenty of room for improvement, it still suggests that things are getting somewhat better.

Will ecosystem reference points for menhaden ever be adopted in the Gulf, as they were on the Atlantic coast?  Perhaps, but it won't be an easy thing to accomplish.

The Gulf Menhaden Fisheries Coalition issued a statement in response to the NMFS’ release, which started out,

“The Gulf of Mexico menhaden fishing industry supports the development and implementation of Ecosystem Based Management (EBFM).  We fully recognize the importance of managing marine resources on an ecosystem basis, as all species within the Gulf of Mexico interact with one another to a varying extent…”

That’s a fine beginning but, as is so often the case, the Devil lies in the details, and the details, as set out by the Menhaden Coalition, are certainly devilish enough:

“While there is broad support for EBFM, one of the current challenges in adopting this new system is accurately accounting for the complex interactions between predator and prey species.  This includes everything from phytoplankton at the base of the food chain, to apex predators like sharks at the top of the pyramid of trophic relationships…  [emphasis added]”

In other words, the industrial menhaden fishery claims to be more than willing to accept ecosystem based management, so long as such management takes into account every organism in the ecosystem.

And from a practical standpoint, that’s an impossible task.  No one has enough time or money to get that job done.

So anyone arguing for ecosystem-based management ought to know that the industry plans to stand in their way.

Still, the biggest obstacle to reforming Gulf menhaden management isn’t the purse seine fleet; instead, it’s the fact that there is no management structure in place in the Gulf that has the legal authority to get the job done.

The study was conducted under the aegis of NMFS, and federal regulators, acting in concert with the Gulf of Mexico Fishery Management Council, could certainly put a Gulf Menhaden Fishery Management Plan in place, if the Council was inclined to do so.  However, such management plan would only hold sway in federal waters (or over federally-licensed vessels), and with state waters extending three miles offshore—nine miles offshore of those Gulf states that derive their jurisdiction from Spanish land grants—there would still be plenty of room for the menhaden fishery, which typically operates realtively close to shore, to fish free from the strictures of federal law.

That wasn’t a problem on the Atlantic coast, where menhaden management is under the purview of the Atlantic States Marine Fisheries Commission.  There, thanks to the Atlantic Coastal Fisheries Cooperative Management Act, the ASMFC has the authority to adopt fishery management plans and then require the coastal states to comply with their provisions.  Once the ASMFC decided to adopt ecosystem reference points for Atlantic menhaden, all states had to fall in line, whether the menhaden were caught in state or federal waters, or risk having their menhaden fisheries completely shut down.

But even though a Gulf States Marine Fisheries Commission exists, it has no real authority.  States may come together to discuss fisheries matters, perform cooperative research, and even adopt management plans, but the Gulf States Commission cannot compel member states to adopt such plans’ provisions.  Instead, states are free to regulate their own menhaden fisheries in any way that they choose.

Until that situation changes, the chances for meaningful menhaden management reform in the Gulf are extremely slim.

 

 

RECREATIONAL STRIPED BASS LANDINGS SPIKE IN 2022

 

Preliminary Marine Recreational Information Program data for all of the 2022 season has recently been released.  It contains some bad news for striped bass.  Last year’s recreational harvest was about double the harvest in 2021.

Anglers landed an estimated 3,521,065 striped bass in 2022,  91% more than the 1,841,901 bass landed in the previous season.  Live releases were just about the same for the two years, with an estimated 29,458,293 bass released last season, versus 28,687,920 returned to the water in 2021.  If the accepted 9% release mortality rate is applied to those figures, we end up with a total of 6,172,311 striped bass killed by the recreational fishery in 2022, as compared to 4,423,813 in 2021.  

When harvest is measured in pounds, rather than in individual fish, the increase in 2022 landings is even more striking.  Last year, anglers landed 35,271,130 pounds of bass, an amount 123% above the 15,781,509 pounds landed in 2021.  Release mortality is not calculated in pounds, but only in fish, and so is not included in the foregoing figures.  (For those who might be wondering, no one believes that fishery managers can actually count every last bass caught, released, or harvested by recreational fishermen.  The figures provided are merely point estimates embedded in a range of values, defined by the “percent standard error” or “PSE.”  Actual catch, etc. is expected to fall somewhere within that range.  The PSEs for all estimates provided herein fall somewhere between 7.8 and 9.3, which indicates a relatively high level of precision.)

By comparison, commercial landings for 2021 were 577,363 fish, weighing approximately 4,290,000 pounds.  Commercial landings for 2022 have not yet been released, but given that the entire commercial quota, including both the Chesapeake Bay and ocean fisheries, is 5,412,802 pounds, there is a hard cap on how high such landings might go.  There is no cap on the recreational fishery.

With such a startling increase in recreational landings, the next question must be whether such increase will impact the recovery of the overfished striped bass stock.

The answer, as unsatisfactory as it might be, is that it is still too early to know.

Last fall, the Atlantic States Marine Fisheries Commission released an update to the striped bass stock assessment, which found that, in 2021, the fishing mortality rate was 0.14, somewhat below the fishing mortality target rate of 0.17.  The same update predicted that, if the fishing mortality rate remained at 0.14, there was a 78.6% probability that the spawning stock biomass would be fully rebuilt by the 2029 rebuilding deadline.  If the fishing mortality rate increased to the 0.17 target, the probability of rebuilding fell to 52.0%; if the rate increased even more, to equal or exceed the fishing mortality threshold rate of 0.20, it is unlikely that the stock would attain the spawning stock biomass target.

We’re now looking at a situation in which landings have roughly doubled—a little less than doubled, if measured in fish, and significantly more than doubled, if measured in pounds—but it’s important to realize that such increase does not equate to a doubling of the fishing mortality rate.  Despite the sharp increase in landings, it is possible—although probably not likely—that the fishing mortality rate has hardly increased at all.

That’s because fishing mortality is calculated as an annual rate of removals, and not merely as the absolute number of fish taken out of the population.  To calculate such rate, one must know not only how many fish were removed from the population, but how big the population was in the first place.

Even those two values don’t provide all of the information that’s needed, because different segments of the striped bass population experience different levels of fishing mortality.  Striped bass less than 18 inches long are universally safe from legal harvest, so the only fishing mortality that they experience comes from illegal landings and release mortality.  On the other hand, bass between 28 and 35 inches long may be harvested just about everywhere, although there are a few exceptions and, in some places, closed seasons apply.

To capture such differences, biologists employ the concept of “fully-recruited fishing mortality” which, if put in its simplest terms, is roughly equivalent to the fishing mortality experienced by that segment of the population that people are actually fishing for (my apologies to any biologists who might be reading this, for such a casual definition).  Fully-recruited fishing mortality can be calculated in more than one way, depending upon whether the person doing the analysis chooses to assume constant mortality across all the relevant age classes, or elects to break things down to the year-class level, but that’s more detail than we need to consider here.

The concept of fully-recruited fishing mortality, which is used when calculating striped bass removal rates, explains why the 2021 and 2022 landings are not directly comparable—the population of fish deemed to be “fully recruited” changes from year to year.

The 2015 year class of striped bass represents the strongest year class produced in the past decade.  While some of the 2015s grew faster than others, and entered the coastal slot limit prior to 2022, the majority of the 2015 year class could not be legally harvested in most places until last season.  Thus, while landings increased in 2022, the influx of 2015s into the fishery caused the population of bass used to calculate the fishing mortality rate to increase as well.  

At the same time, fish from the 2011 year class, which was also large, were growing out of the top end of the slot, and so were no longer a part of the generally fishable population.

Thus, until the Atlantic Striped Bass Technical Committee takes all of the factors into consideration and calculates the 2022 fishing mortality rate, we won’t know for certain how last year's landings will impact rebuilding.

At the same time, we can make a few informed guesses.

It seems pretty likely that fishing mortality was higher in 2022 than it was in 2021; it’s probably safe to predict that both the 0.14 fishing mortality rate, and the 78.6% chance of rebuilding the stock by 2029, now belong to the past.

Beyond that, preditions get harder to make.  While I think that the fishing mortality rate increased in 2022, it’s hard to guess where it might have ended up.  My gut tells me that there’s a good chance—probably a better than even chance—that fishing mortality exceeded the target.  I wouldn’t be surprised if the striped bass was again experiencing overfishing, but at the same time, I also wouldn’t be surprised if the fishing mortality rate remained below the threshold.

Without technical guidance, it’s impossible to know for sure.

The other thing that we can’t yet know is how the ASMFC’s Atlantic Striped Bass Management Board is going to respond to the increased recreational landings.

The increase certainly won’t catch the Management Board by surprise.  At its November 2022 meeting, Dr. Michael Armstrong, Massachusetts’ fishery manager, raised the issue on multiple occasions, noting at one point that

“I looked at the MRIP landings, and they are up considerably this year.  There is only one way we can react as a Board to low recruitment, and that’s maintaining an increasing [spawning stock biomass].  If in fact the retrospective is right and we’re a little bit higher and some of the other uncertainty and landings are up.  We may in fact be at the threshold already, after this year…

“But the main reason we are in this situation is we have never hit our target [fishing mortality rate], at least for a prolonged period of time.  To prevent that we need to know what [the fishing mortality rate] is.  I would advocate for something, either an update, or what Katie [Drew, of the Atlantic Striped Bass Technical Committee] was talking about, to kind of give us an idea within one year of where we’re at.  That’s because mostly of the recruitment.  We need to get [spawning stock biomass] up, which may not work, but that’s all we can do.”

After some discussion, the Management Board and ASMFC staff came to a general agreement that the Technical Committee would compare the projected 2022 catch level needed to maintain the 0.14 fishing mortality rate with the actual 2022 landings.  If the actual landings were significantly above the projections, the Board might either take some sort of management action, or wait until the next stock assessment update was released late in 2024.

Dr. Armstrong wasn’t altogether pleased with the latter alternative, saying

“I don’t know quite how to react to that, other than you know we’re not locked in…if we find that landings are high, and projected to go above [the fishing mortality rate], we could always cut harvest without a quantitative assessment.  I could sit here and make a motion and say, let’s cut harvest by 10 percent.

“I don’t know what it will do.  It may cause people to go crazy.  But I just think we’re in a spot that we need to react.  That being said, stocks don’t collapse overnight.  But with 4 years of poor recruitment, we’re approaching that point, in my mind…”

So the stage is set for the Management Board to act when it meets in May.

At that point, the Technical Committee will be able to provide it with a comparison of 2022 landings to the landings projections contained in the last stock assessment update.  If the landings are well above the projection, I strongly suspect that someone, very possibly Dr. Armstrong, will move to place additional harvest restrictions in place.  I also suspect that some Management Board members will be very opposed to such motion.

At that point, the Management Board will have a choice.  It could decide to take preemptive action, in the absence of a formal stock assessment update, to keep the striped bass stock on a path to timely rebuilding.  Or it could decide to sit on its hands and do nothing, and instead wait for the next stock assessment update to be released late in 2024 which, unless managers vote to fast-track the process, would probably result in no management changes becoming effective before the 2026 season.

If excessive fishing mortality continued through 2025, the 2029 rebuilding deadline would probably be completely out of reach.

If low recruitment accompanies such high fishing mortality, the striped bass might stand on--or even beyond--the the brink of the stock collapse that Dr. Armstrong hopes to avoid.

The Management Board's May meeting could well turn out to be one of those critical times, when the health of the striped bass stock hinges on a single vote.

We can only hope that any such vote goes the right way.

 

 

 

VIRGINIA LEGISLATORS CONSIDER LOCALIZED MENHADEN DEPLETION

 

With all things considered, Atlantic menhaden management can only be called a conservation success.

The fight was long—I got involved in the late 1990s, and there were other folks advocating for the menhaden well before then—but when you think about where we were 35 years ago, compared to where we are today, the progress becomes very clear.

After all, back in the late 1990s, menhaden were effectively owned by the purse seine reduction fleet.  The Atlantic States Marine Fisheries Commission’s original Fishery Management Plan for Atlantic Menhaden, adopted in 1981, created an Atlantic Menhaden Management Board that was

“composed of the six chief fishery management administrators of states actively participating in the management program, six menhaden industry executives who request membership, and an ex officio representative from [the National Marine Fisheries Service]…”

charged with making the final management decisions, an “Atlantic Menhaden Implementation Subcommittee”

“composed of 3 industry and 3 state administrator members of the [Atlantic Menhaden Management Board]…to conduct the day to day activities of the overall management program…”

and an “Atlantic Menhaden Advisory Committee”

“composed of fishery biologists designated as representatives by the States actively participating in the management program, industry representatives designated by the companies in the purse seine fishery, and a NMFS biologist from the menhaden program who is actively engaged in the research and data base management…[The Atlantic Menhaden Advisory Committee] shall formulate recommendations for short term management actions over the next one or two fishing seasons, propose new research…and request special analyses of Atlantic menhaden data by NMFS-[Southeast Fisheries Center] scientific staff…”

 The plan’s stated long-term objective was to

“Achieve the greatest continuing yield for each area by determining the age at which menhaden should be harvested and eliminating other restrictions which do not contribute to the management goal.”

Following many years of work by the conservation and recreational fishing communities, which had combined their efforts to achieve a common goal, the ASMFC adopted Amendment 1 to the Interstate Fishery Management Plan for Atlantic Menhaden in July 2001.

Amendment 1 revamped the entire management structure, eliminating the seats reserved for industry members and creating an Atlantic Menhaden Management Board, Atlantic Menhaden Technical Committee, and Atlantic Menhaden Advisory Panel that were structured in the same manner as bodies focused on all of the other ASMFC-managed species.  

In addition, the management plan’s goal was changed from merely maximizing harvest, and eliminating any obstacles thereto.  It now reads

“To manage the Atlantic menhaden fishery in a manner that is biologically, economically, socially and ecologically sound, while protecting the resource and those who benefit from it.”

A comprehensive set of biological, social/economic, ecological, and management objectives were adopted at the same time.

If Amendment 1 represented the current pinnacle of menhaden management, it would have placed the fish in a far better place than they were in throughout the latter decades of the 20^th Century.  But fishery managers went even further.

In December 2012, the Management Board adopted Addendum 2 to the Interstate Fishery Management Plan for Atlantic Menhaden, which adopted new biological reference points that provided greater protection for the spawning stock.  

In 2017, the Management Board took the next step, and moved toward the use of ecological, rather than biological, reference points to manage the menhaden fishery.  Under such approach, the focus of management would shift from merely maintaining a sustainable menhaden fishery to maintaining a sustainable menhaden population that was capable of fulfilling its role as one of the most important forage species on the Atlantic coast.

Such ecosystem reference points were included, along with traditional biological reference points, in a benchmark stock assessment released in January 2020.

A stock assessment update released in August 2022, employing such ecosystem reference points, found that

“The fishing mortality rate for the terminal year of 2021 was below the [ecosystem reference point] target and threshold and the fecundity was above the [ecosystem reference point] target and threshold.  Therefore, overfishing is not occurring and the stock is not considered overfished.”

It took more than 30 years, but moving from a management system driven by the reduction fishing industry, and solely focused on harvest, to a fishery management approach that emphasizes the menhaden’s ecological role was a clear victory for conservation advocates, particularly given the fact that the menhaden stock is not just meeting, but exceeding its management targets.

Today, most of the remaining complaints about menhaden management aren't biological in nature.  Instead, they arise out of some advocates' gut-level aversion to letting a single company, based in a single state, harvest over 60% of all menhaden landings.  It is an issue that arises out of the realm of economic and social philosophy, rather than the health of the resource itself.

Still, there is one remaining biological issue that has woven through the menhaden debate for at least a couple of decades:  Is it possible for concentrated fishing effort to deplete menhaden abundance in a discrete location, even if the stock is deemed healthy overall?

That’s a difficult question to answer.

The most recent research, including genetic research, supports the proposition that all menhaden on the Atlantic coast constitute a single stock.  Individual fish, belonging to such stock, can and typically do engage in long migrations, with menhaden from the waters off the Carolinas known to migrate as far north as Maine and as far south as Florida.

Despite such long migrations, some places can be largely devoid of menhaden at any given time.  The question, then, is whether such local absence of menhaden is due to completely natural causes, or whether heavy fishing pressure might play a role.  That question is particularly pertinent with regard to the Chesapeake Bay, a region that is not only heavily fished by purse seiners serving the reduction fishery, but is also an important spawning and nursery ground for striped bass, and hosts many other species that actively predate on menhaden.

No one really knows whether localized depletion is an issue or not.  The Management Board has properly taken a precautionary stance, and currently caps the reduction fleet’s harvest within the Bay at 51,000 metric tons.  However, Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden also admits that

“The Chesapeake Bay Reduction Fishery Cap was originally implemented in 2005 to prevent localized depletion of menhaden.  Given the concentrated harvest of menhaden within the Chesapeake Bay, there was concern that localized depletion could be occurring in the Bay.  In 2005, the Board established the American Menhaden Research Program (AMRP) to evaluate the possibility of localized depletion.  Results from the peer review report in 2009 were unable to conclude localized depletion is occurring in the Chesapeake Bay and noted that, given the high mobility of menhaden, the potential for localized depletion could only occur on a ‘relatively small scale for a relatively short time’.”

Thus, the issue of localized depletion still fuels a heated debate, with the reduction industry arguing against the Bay cap and conservation and recreational fishing advocates emphasizing the prudence of keeping such cap in place.

On February 8, the Virginia State Senate took action to resolve such dispute, passing a bill that would fund a study by the Virginia Institute of Marine Science.  Such study would calculate the population of menhaden in state waters over an 18-month period, while the reduction fleet continued to fish, and also survey the amount of bycatch caught, and often killed, in the very large nets used by that fleet.

Needless to say, Omega Protein, which operates the only remaining menhaden reduction plant on the Atlantic coast, opposes the Senate bill, seeing no need for such study.  The fact that Omega’s nets have been known to catch and kill such valued recreational species as red drum, one of the Virginia’s most iconic marine species, probably makes the company extremely reluctant to countenance any bycatch studies that might implicate its operations.

Given Omega’s history in the Bay, its very opposition to a study of both bycatch and localied menhaden depletion probably provides a good reason why such study should take place.

Unfortunately, when the Senate bill was sent to the Virginia House of Delegates for further review, it was not enthusiastically received.  The House Rules subcommittee largely gutted the legislation, amending it so that it only called on VIMS to provide details of a “potential” study’s scope, methodology, possible stakeholders, cost, and duration.  Omega Protein supported the watered-down bill, with its lobbyist noting that

“The Atlantic States Marine Fisheries Commission…in April of 2021 had a study that suggests it would take five to seven years to do this, probably as much as 10,”

the implication being that the 18-month study proposed in the Senate bill was too short to accomplish its goal.

A number of conservation and angling groups also supported the House version of the study bill, perhaps believing that it at least provided a starting place from which research could begin.  

Such motivation could be heard in the words of Steve Atkinson, president of the Virginia Saltwater Sportfishing Association, who observed,

“We’re often told that there is no science to support our claims.  Now we finally have an opportunity to get some science.”

It would be unfortunate if that opportunity slipped away.

While it’s impossible to know what a study might reveal, if localized depletion is occurring, it could have a significant negative impact on striped bass and other Chesapeake species, including not only fish, but also marine mammals and fish-eating birds.

More research is needed, and there is no good reason why such research should not begin soon.

 

JURISDICTIONS RESPOND TO THREATS POSED BY AQUACULTURE

 

Years ago, it seemed that aquaculture might be the answer to some of the problems plaguing fish stocks. 

It has been more than a century since wild-caught game disappeared from most United States markets; commercial hunting for waterfowl was banned in 1919.  

While some commercial fishing still continues in inland waters, it is generally restricted to catfish, some panfish, and “rough fish” such as buffalo, drum, and carp.  

With just about all of the meat and poultry that we buy coming from farms, and even some of the most popular freshwater finfish, such as rainbow trout, catfish, and Arctic char, coming from production facilities and not from nature, it didn’t seem unreasonable that commercial fishing in salt water, at least for inshore species, would eventually be either supplemented or supplanted by fish raised in coastal farms.

To some extent, that has occurred.  Most of the striped bass that show up in typical markets are actually farmed striped bass/white bass hybrids.  Just about all of the Atlantic salmon sold have also been raised in pens.  Other finfish species are raised domestically in smaller amounts.  The United States hosts a substantial fishery for wild shrimp, yet most Americans tend to purchase cheaper crustaceans that were farmed overseas.  Artificially propagated oysters, mussels, and clams undoubtedly far outnumber their naturally-raised counterparts on restaurant menus and in fish market bins.

But the development of aquaculture, particularly for finfish, has not been trouble-free.  Just as cattle infected native elk an bison with brucellosis in the early 1900s, farmed fish in coastal waters can infect wild populations with diseases and increase their exposure to various parasites such as sea lice.  There is also the risk that fish can escape fish farms, survive, and become a threat to native ecosystems, as occurred in the Mississippi River watershed when flooding allowed Asian carp to leave overflowing farm ponds and enter natural waterways.

Such threats to native ecosystems have led some jurisdictions to look past aquaculture’s promise, and give more serious consideration to the potential threats that it poses to native fish populations.

On November 17, 2022, in the State of Washington, the Commissioner of Public Lands issued an executive order prohibiting commercial net pen aquaculture on state-owned aquatic lands, and ending 40 years of net pen aquaculture operations in the state.  The executive order was the last link in a chain of events dating back to August 2017, when a poorly maintained salmon pen collapsed and released 250,000 Atlantic salmon, not native to Washington’s waters, into the state’s coastal sea.  That escape led the Washington legislature, in 2018, to pass a bill prohibiting the farming of non-native fish in the state’s marine waters; such legislation led, indirectly, to the total ban on net pens that was put in place last November.

The executive order noted that

“salmon and steelhead populations across Washington State, and in particular in the Salish Sea, are not recovering.  Further, salmon and steelhead are integral parts of the Salish Sea ecosystem, cultural identity, and Tribal Treaty Rights.  In addition, Southern Resident Killer Whales continue to be endangered due to a lack of prey, noise and disturbance, and toxics and other pollution.  Commercial finfish net pen aquaculture poses risks to the State, many of which cannot be avoided even with best management practices.  It is important to ensure that commercial finfish net pen aquaculture does not contribute added stressors to salmon, steelhead, Southern Resident Killer Whales, or the ecosystem.”

Although Washington has banned net pen aquaculture, the state’s Department of Natural Resources is actively promoting finfish aquaculture in land-based facilities, that do not create the same disease, parasite, pollution, or escape issues that are endemic to the net pens.

Washington’s decision to ban net pens puts that state in accord with Alaska, California, and Oregon, all of which had previously banned such aquaculture facilities. 

As one might suspect, the decision to ban the net pens met with both praise and condemnation, depending upon the commenter’s perspective.  Conservation advocates, which included many of the state’s indigenous tribes, were supportive.  A spokesman for the Wild Fish Conservancy stated that

“The benefits of these actions for the recovery of wild fish, water quality, and the greater health of Puget Sound cannot be overstated.  Immediately, this action will cease untreated chronic pollution that has been discharged daily at these aquatic sites for over forty years.  Finally, these heavily polluted and degraded sites will have the opportunity to heal and begin the process of natural restoration as part of the largest passive restoration project in Washington’s history.

“The decision will also eliminate many major risk factors that harm the recovery of wild salmon and steelhead, including ending the risk of exposure to viruses, parasites, and diseases that are amplified ans spread at unnatural levels by massive densities of farmed fish and the risk of future catastrophic escape events in which farmed fish could compete with, attempt to interbreed, or spread pathogens to threatened and endangered wild fish.”

Leonard Forsman, the Chairman of the Suquamish Tribe, said,

“Ending commercial finfish farming in our ancestral waters is an important step towards protecting marine water quality, salmon populations, and the endangered Southern Resident Killer Whales.  The impacts of commercial finfish farming put all that at risk, and threatened treaty rights and ultimately our way of life and culture.”

However, others disagreed.  W. Ron Allen, Chairman of the Jamestown S’Klallam tribe, which operated a joint venture with fish-farming giant Cooke Aquaculture, argued that

“This action is an irresponsible denial of what science has proven: marine net pen aquaculture is safe for the environment and the most sustainable, climate friendly way to feed the world…today’s DNR announcement was political; crafted to placate ill-informed activist groups who refuse to admit the vast array of scientific studies show us that well-regulated aquaculture is not a threat to the environment, or wild salmon.”

Cooke Aquaculture Pacific, the aquaculture company’s west coast subsidiary, predictably issued a statement calling Washington’s action “short sighted,” and arguing that it had no scientific basis.

However, banning net pen aquaculture seems to be a continuing trend along the eastern Pacific coast of North America.  Last week, the Canadian province of British Columbia announced that it would not renew licenses for 15 net pen salmon farms, because the area where such farms are located

“is a key migration route for wild salmon where narrow passages [between islands] bring migrating juvenile salmon into close contact with the farms.”

The province’s Fisheries Minister, Joyce Murray, noted that the British Columbia government is working to transition away from net pen farming in coastal waters.  Ms. Murray’s actions were taken at the direction of Canadian Prime Minister Justin Trudeau, who has charged her with shutting down all of the province’s 79 net pen salmon farms by 2025.

As in Washington, the salmon farming industry opposed such action, arguing that it would lead to the loss of important jobs.  The Canadian Aquaculture Industry Alliance complained,

“This decision goes against First Nations Reconciliation, increases food costs to Canadians and undermines food security and has broad-reaching implications for employment and economic opportunity for people in rural, coastal and indigenous communities, and our global trading markets.”

However, the First Nations, speaking for themselves as part of the First Nations Wild Salmon Alliance, apparently do not agree with the aquaculture industry’s comments, noting that over 100 First Nations support the move away from the net pens.

Lost in the debate, particularly when industry spokesmen begin to hide behind claims of increasing food costs and decreasing food security for local residents (claims that begin to seem somewhat questionable, when uttered in the same sentence with concerns for global trading markets), is the fact that eliminating net pens does not equate to eliminating all salmon aquaculture.  As specifically noted by the State of Washington, aquaculture may continue in land-based facilities, that present no threat to wild runs of salmon.

Yes, land-based aquaculture will almost certainly cost a little more than the net pens.  But for those who view the traditional runs of wild Pacific salmon as something priceless, the extra expense of going to land-based facilities would appear a trivial cost to pay.

 

 

 

 

IS ANYONE LISTENING? THE ROLE OF PUBLIC COMMENT IN FISHERIES MANAGEMENT

 

I’m not sure how many fisheries meetings I’ve attended over the years, but seeing that I started soon after the striped bass stock collapsed back in the late 1970s, and have continued ever since then, the number is far from small.  I’ve spoken, submitted written comments, sat on a regional fishery management council and on various advisory boards, and generally spent a lot of my life arguing for healthy and sustainable fish populations.

A lot of other people have done similar things.

But as we invest our time and effort trying to improve the management process, there is one nagging question that stays in our minds:  Are fisheries managers really listening, and do they care what we say?

A few decades ago, I had a brief conversation with someone at the National Marine Fisheries Service that shed some light on that question.

Bluefin tuna was a hot issue at the time.  The stock had declined badly, and the International Commission for the Conservation of Atlantic Tunas, weighed down with members from Europe and East Asia that were reluctant to reduce their landings, was slow to take any meaningful action.  However, sometime around the late 1980s or, perhaps, early 1990s, they finally began to reduce nations’ quotas.

In response, the National Marine Fisheries Service proposed regulations to reduce the landings of United States’ fishermen, regardless of whether they fished from purse seiners, longliners, or private recreational boats, and a lot of people weren’t too happy about where things were going.  

Back in those days, NMFS used to hold hearings on highly migratory species like tuna at a Holiday Inn near Long Island’s Islip/MacArthur airport, and those hearings drew a colorful crowd.

There were crews off the big pelagic boats—mostly longliners, with maybe some purse seiners thrown in—who came down from Gloucester on a rented bus with enough beer on board to keep passengers happy throughout the ride; they’d settle into the hearing room with both hands filled with drinks from the hotel bar, and opposed the proposed rules with comments that were undeniably colorful if, perhaps, not completely coherent.

There were local commercial—general category—boats who provided more sober comments opposing the pending regulations.  More opposition came fromn the charter boat fleet, which argued that if their passengers could only keep one—or perhaps it was two—school bluefin apiece, it would most assuredly put the boats out of business, although they might be able to survive if the captain and mate could each keep a fish, too.

There was one guy—I don’t recall his affiliation—who tried to argue that bluefin weren’t really in trouble, because a lot of the fish we thought were bluefin were really longtail tuna, a fish native to the western Pacific and Indian oceans that have never been found within maybe 7,500 miles of the U.S. East Coast, although that detail didn’t appear to concern the speaker.

And then there were folks like me, private boat anglers with various views of the proposed rules, which ranged from support to strong opposition.  I tried to base my comments on the available science, and the details provided in the document describing the pending regulations.  Others, I think, tried to do the same thing.

A week or two later, for reasons that I can no longer recall, I made a telephone call to the person at NMFS who had primary responsibility for the proposed bluefin rules.  When he picked up the phone, I introduced myself, and as soon as he heard my name, he said “You were the lawyer at the Long Island hearing.”

No fewer than thirty people, and probably well over forty, spoke at the Long Island event, and in the three minutes that they gave me to speak, I certainly never mentioned my profession, which was irrelevant to the subject at hand.  He remembered me simply because I stuck to the subject, referred to the proposed rule and the information provided by NMFS, and presented a logical argument in support of my position.  He guessed what I did for a living for the same reasons.

That experience revealed a couple of things about the rulemaking and management process that we would all do well to remember.

The first is that managers really do listen to the comments being made.  At the time of the bluefin debate, I attended fisheries meetings, but was nowhere near as involved as I became later on; there was no reason for anyone at NMFS to know who I was.  Yet the manager was listening to the comments closely enough to remember my name.

The other is that well-thought out and well-presented comments will stick in a managers’ mind, particularly when they contrast with many of the other comments made at the meeting; when a lot of people are just opposing (or supporting) a particular management action, without providing much of an explanation why, a calm and logical argument can stand out above the others.

So why bring this up today?

Largely because there has been a lot of recent talk denigrating the value of public comment in the fishery management process.  More specifically, a number of striped bass anglers are unhappy that the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board didn’t vote to reject even the possibility of commercial quota transfers when it met to consider Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan a few weeks ago.

Personally, I believe that such transfers are a bad idea.  But the fact that the Management Board chose to seek additional information before taking action, instead of merely rubber stamping the 2,000 or so comments—98% of all comments received—which called for a continued ban on quota transfers, doesn’t mean that it is “corrupt,” “was just checking the boxes” by calling for comments, or that it “doesn’t care what the public wants,” for the comment period isn’t a referendum.  The side with the most votes doesn’t necessarily win.

Nevertheless, public comment is vitally important to the management process.  Anglers shouldn’t refrain from making comments, simply because managers didn’t do what the majority asked for the last time around.

The role of public comment is easiest to understand on the federal level.  The Office of the Federal Register (the Federal Register being the publication in which all rulemaking activities, including proposed and final rules dealing with fisheries, must be published) provides “A Guide to the Rulemaking Process,” which is a very useful summary of how federal rulemaking works.  In the section “How do public comments affect the final rule,” the guide explains

“The notice-and-comment process enables anyone to submit a comment on any part of the proposed rule.  This process is not like a ballot initiative or an up-or-down vote in a legislature.  An agency is not permitted to base its final rule on the number of comments in support of the rule over those in opposition to it.  At the end of the process, the agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre-rule and proposed rule stages…

“If the rulemaking record contains persuasive new data or policy arguments, or poses difficult questions or criticisms, the agency may decide to terminate the rulemaking.  Or, the agency may decide to continue the rulemaking but change aspects of the rule to reflect these new issues.  If the changes are major, the agency may publish a supplemental proposed rule.  If the changes are minor, or a logical outgrowth of the issues and solutions discussed in the proposed rules, the agency may proceed with a final rule.  [emphasis added]”

Thus, while comments are an important part of the rulemaking process, the comments submitted are only a part of what regulators must consider.  Other factors can, and sometimes do, outweigh the comments received.  At the same time, by raising issues that might not have been considered, or were inadequately addressed before, public comments can have a significant impact on the course of rulemaking.  An agency must reply to every substantial issue raised during the comment process, and if such agency finds that a comment raises a legitimate legal or policy issue, such comment can cause a proposed rule to be reconsidered.

At the same time, agencies are far more concerned with the quality than the quantity of the comments received.  When confronted with differing claims or opinions, agencies are legally entitled to exercise their discretion in deciding which of the competing arguments will prevail.  However, such exercise of discretion is not unlimited; whatever decision an agency makes must be supported by some bit of evidence contained in the administrative record.  Decisions that are unsupported by such evidence are deemed to be an abuse of the agency’s discretion and, because they are unsupported by evidence, may be invalidated by a court undertaking a judicial review of the rule.

If an agency takes an action that is contrary to existing law, the courts will invalidate such action for that reason, too.  As Capt. John McMurray, who wrote a piece on the same subject for the Marine Fish Conservation Network’s blog, “From the Waterfront,” recently noted,

“when you consider species like summer flounder, black seabass or scup, well, I can tell you first hand as a Council member (years ago)—if the Council simply made decisions based on majority public comment with those fisheries, then I’m just about certain they would all be overfished right now.  Despite overwhelming public comment to increase harvest, managers focused on preventing overfishing and long term sustainability, primarily because federal law required them to.  [emphasis added]”

I sat on the Mid-Atlantic Fishery Management Council a few years before Capt. McMurray was appointed, and can vouch for that statement; meetings that set recreational summer flounder specifications, in particular, were often a circus, with speakers castigating and sometimes threatening Council members who failed to support the demands of the mob, even though such demands were clearly contrary to federal law.  In such cases, majority rule would have been equivalent to mob rule, and contrary to the public interest.

Yet, those who argue that managers must follow the majority’s wishes would yield to the cries from the crowd, regardless of their legal or scientific merits.

Although laws differ slightly from state to state, state administrative law is generally similar to the federal practice.  State agencies required to create an administrative record, and agency actions that are not supported by that administrative record will fail legal challenge.

When we get to the Atlantic States Marine Fisheries Commission, things are a little different.  That’s because the ASMFC is not a federal agency, but rather an interstate compact.  Because it is not a federal agency, a federal appellate court, in New York v. Atlantic States Marine Fisheries Commission, decided in 2010 that the federal Administrative Procedures Act, which governs federal rulemaking and sets the standards for judicial review of agency decisions, does not apply to the ASMFC.  Thus, it appears that courts can neither review nor set aside the ASMFC’s management actions.

Even if they could, such review would, in most cases, prove challenging.  The Atlantic Coastal Fisheries Cooperative Management Act grants the ASMFC the authority to manage coastal fisheries but, unlike the Magnuson-Stevens Fishery Conservation and Management Act, which governs fishing in federal waters, creates no legally enforceable standards for fishery management plans.  Unlike federal agencies, the ASMFC may exercise its unbridled discretion when setting management measures.

In addition, the ASMFC is technically not a rulemaking body.  It is a fishery management organization, which develops fishery management plans and fishery management measures, but the states must then adopt such measures through each state’s rulemaking process.

All of those factors take the ASMFC outside the body of law that addresses public comment and the rulemaking process.

Still, the folks who sit on the management boards are not tone deaf, and they are not unconcerned with the impacts of their actions on the fisheries that they manage, and also on the perceived legitimacy, and possibly the future, of the ASMFC itself.  They understand that outraging the public will not benefit the ASMFC.

Thus, there is a practical balance that, while not legally enforceable, is nearly as binding as the laws that bind federal agencies.  Certainly, the ASMFC has stepped a little too far outside the lines at times, and has taken actions that seemed to defy not only the science but common sense; had it followed its own management plan in 2014, and initiated a 10-year rebuilding plan before the 2015 year class of striped bass began to recruit into the commercial and recreational fisheries, the striped bass stock might well be in a better place than it finds itself in today.

At the same time, there is no doubt that, throughout the development of Amendment 7 to the ASMFC’s striped bass management plan, the majority of the Atlantic Striped Bass Management Board were very aware of, and very responsive to, public comment.  The amendment that finally emerged last May was very different, and far better for the striped bass, than the document that was contemplated when the amendment process began.

If the striped bass stock is, in fact, rebuilt by 2029, the Management Board’s willingness to heed public comment will be much of the reason why.

The plain truth is that nobody wins every fight.  And sometimes, for a season or two, it can feel like you’re not winning anything at all.  But that’s not a reason for anglers to walk away and stop commenting on issues that concern them.

For even if their comments only make a difference once in a while—and they’ve recently been doing far better than that—the wins, however far apart they may be, will still leave our fish stocks in better shape than they had been in before.