BRISTOL BAY: THE POLITICS OF PROTECTION

Every now and then, I’ll write something about Alaska’s Bristol Bay, its salmon, its people, and the mining company that is willing to put them all at risk in order to profit from copper and gold.  I’ve been following the issue for many years, first wrote about it about four years ago, and revisit it every now and then, when new developments make it worth discussing again. 

The fight to protect Bristol Bay’s still near-pristine ecosystem, which includes the world’s largest run of wild salmon, untainted by hatchery fish—or, if you’re on the other side of the issue, the fight to develop the Pebble Mine and its supporting infrastructure, in order to access a vast reserve of copper ore and other valuable metals—is an epic, seemingly everlasting story, in which each side has taken its turn facing apparent defeat, and then found a way to keep fighting on.

It is a story of clashing values and changing political fortunes, of alleged back room deals, of people tied close to the land, with limited financial resources, trying to save a river, ancient traditions, and a way of life, and of foreign corporations who seek to create profit, without any apparent concern for what they might destroy.

Right now, events seem to be coming full circle, with the balance again seeming to favor Bristol Bay and its salmon, although there is no telling when that may change, as it has changed so many times before.

On September 9 of this year, the Environmental Protection Agency issued a press release announcing that it was

“seeking to reinitiate the process of making a Clean Water Act (CWA) Section 404(c) determination to protect certain waters in Bristol Bay, Alaska.  If such a determination is finalized, it would protect waters over the long term that are essential to commercial, subsistence, and recreational fisheries, and other activities that support Alaska Natives and communities in the state.”

In its press release, the agency notes that

“Bristol Bay supports commercial, subsistence, and recreational fisheries that are worth hundreds of millions of dollars each year and create thousands of jobs.  Bristol Bay fishery resources have supported a subsistence-based way of life for Alaska Natives for over 4,000 years.

“The Bristol Bay watershed is an area of exceptional ecological value with salmon fisheries unrivaled anywhere in North America.  The region’s streams, wetlands, lakes and ponds provides essential habitat that support all five species of Pacific salmon found in North America: coho, Chinook, sockeye, chum, and pink.  The salmon populations are critical to the health of the entire ecosystem, which is home to more than 20 fish species, 190 bird species, and more than 40 terrestrial mammal species, including bears, moose, and caribou.”

The release also explains,

“The Clean Water Act generally requires a Section 404 permit from the U.S. Army Corps of Engineers to authorize a discharge of dredged or fill material into certain streams, wetlands, lakes and ponds.  Section 404 directs EPA to develop the environmental criteria used to make permit decisions.

“The U.S. Army Corps of Engineers authorizes thousands of Section 404 permits every year, and EPA works with the Corps and developers to resolve environmental concerns so projects can move forward.  However, the Clean Water Act, in Section 404(c), also authorizes EPA to prohibit or restrict fill activities if EPA determines a discharge would have an unacceptable adverse effect on certain resources.

“EPA has used its Section 404(c) authority sparingly, issuing final determinations only 13 times in the CWA’s 50-year history.  The agency’s use of the authority has typically involved major projects with significant impacts on some of America’s most ecologically evaluable waters.”

A Section 404(c) determination, if made, would effectively prevent development of the Pebble Mine, and protect the integrity of the Bristol Bay ecosystem.  The press release makes it sound very much like the EPA was planning to issue just such a determination.

And maybe it will.

But don’t lose track of the statement that the agency intended to “reinstate the process” of making a Section 404(c) determination.  Understand that we’ve been down this road before.

In 2014, the EPA conducted an assessment of the Bristol Bay watershed, which considered the possible impacts of the Pebble Mine.  Such assessment determined that the mine construction would have a negative impact on salmon and other fish along miles of river, even if things went well, and that a wort-case accident would impact far more of the watershed, with negative effects potentially lasting for decades.

In the same year, the EPA requested

“public comment on a proposed determination to restrict the use of certain waters in the Bristol Bay watershed for disposal of dredged or fill material associated with mining the Pebble deposit, a large ore body in southwest Alaska.  EPA Region 10 is taking this step because of the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental affects that would result from such mining.  This proposed determination relies on clear EPA authorities under the Clean Water Act (CWA),  and is based on peer-reviewed scientific and technical information…”

The EPA received over 675,000 comments on the proposed determination, most of them favoring the EPA’s use of its Section 404(c) authority.  The Pebble Limited Partnership, which was seeking to develop the Pebble Mine, sued the EPA in an effort to short-circuit such Section 404(c) determination.

That happened during while President Barak Obama was in office.  But in January 2017, Donald Trump entered the White House, after running on a Republican Party platform that favored extractive industries and disfavored regulations that interfered with such industries’ operations, and spoke approvingly of

“government [which] valued the role of extractive industries, and rewarded their enterprise by minimizing its interference with their work.”

Thus, it wasn’t long before Trump’s EPA revisited the agency's proposed determination on Bristol Bay.  After a brief meeting between the Chief Executive Officer of the Pebble Limited Partnership and Scott Pruitt, the new head of Trump’s EPA, which reportedly lasted for less than an hour, the EPA announced, on May 12, 2017, that it had

“entered into a settlement agreement with the Pebble Limited Partnership to resolve litigation from 2014 related to EPA’s prior work in the Bristol Bay watershed in Alaska.  This settlement provides the Pebble Limited Partnership (Pebble) the opportunity to apply for a Clean Water Act (CWA) permit from the U.S. Army Corps of Engineers before EPA may move forward with its CWA process to specify limits on the disposal of certain material in connection with the potential ‘Pebble Mine.’”

After two years of controversy and a few starts and stops, Trump’s EPA took the next step and, on August 30, 2019, announced its intention to withdraw its proposed Section 404(c) determination.  Conservation interests, fishermen, and fish were on the wrong side of the EPA decision, and Pebble Limited Partnership was in the ascendancy.

But litigation can be brought by those on both sides of an issue; the conservation group Trout Unlimited contested the EPA’s withdrawal action in court.

In the meantime, the Corps of Engineers began to move forward with an environmental impact statement that had to be completed before a Section 404 permit could be issued.  When the final EIS was issued, it found that the Pebble Mine would eliminate 99 river miles of fish habitat near the mine site, but would pose little risk to the greater area around Bristol Bay.

The Pebble Partnership was close to declaring victory.

But Victory is a fickle mistress.  It turned out that some important Republicans like to fish for salmon, and didn’t like the Pebble Mine.  The list included folks such as Trump’s son, Donald Trump, Jr., and Fox News commentator, and Trump sycophant, Tucker Carlson.  The Pebble Partnership CEO, Tom Collier, felt the shift in the wind, and began to complain about

“a group of elitist sportsmen in America that want to keep Bristol Bay as their personal playground.”

Suddenly, a Pebble Mine victory was not assured.  The same Trump who liked to keep big-money Republicans happy by slashing environmental regulations might well seek to please such cronies by blocking the mine.

And that’s just what happened.  Despite its conclusions in the Final Environmental Impact Statement, the Corps of Engineers, on August 24, 2020, decided that the Pebble Mine

“could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation.

“Given these concerns, the U.S. Army Corps of Engineers finds under Section 404 of the Clean Water Act that the project, as proposed, would likely result in significant degradation of the environment and would likely result in significant adverse effects on the aquatic system or human environment…

“Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under section 404 of the Clean Water Act.”

What had looked like a clear Pebble Mine win just a few months ago was now looking very much like a loss.

Still, the fight wasn’t over.  Last January, both the Pebble Partnership and the State of Alaska appealed the Corps’ decision not to issue a Section 404 permit.  Such appeal remains pending, although both the complexity of the issues involved and the recent replacement of the officer presiding over the appeal has delayed the process, which probably will take another year to resolve. 

And, last January, Trump was replaced by President Joseph Biden, and Trump’s EPA, which seemed most dedicated to protecting corporate cash flows, was replaced by an EPA dedicated to its original mission of protecting the environment instead.

Thus, after Trout Unlimited appealed after having had its suit against the EPA dismissed last year by a trial court, and after the appellate court reversed the earlier decision and ruled in TU’s favor last June, the EPA announced that it was again reversing course, and would seek to “reinitiate” the Section 404(c) determination again.

So right now, the Pebble Partnership is close to a loss.  But it would be a mistake to count them out too soon.

The appeal of the Corps of Engineers decision to deny a Section 404 permit is still ongoing, and if that decision goes against them, nothing will prevent the Pebble Partnership from challenging such decision in court.  And nothing will prevent them from challenging an EPA Section 404(c) determination, if and when such determination is made.

Trump may be out of the White House, and his EPA may have gone with him, but he made plenty of appointments to the federal courts, including three Supreme Court justices.  Without exception, those he appointed tend to be hostile toward the regulatory process, and most tend to be friendly to big business, too; few if any are predisposed to favor pro-conservation litigants.

So Pebble could still lose every administrative decision, yet win in the courts.

Thus, Trout Unlimited recognizes that

“Congressional legislation is needed to assure that Pebble—or any other mining company—does not return in the future with plans to operate in the Bristol Bay region.”

Whether there is broad enough support in Congress for such legislation is an open question, for federal legislators receive a lot of corporate donations, so plenty of them favor industry over the environment, too.

The unpleasant fact is that, in the end, the fate of Bristol Bay, and of the nation’s other remaining fisheries, in freshwater and in the salt, lies in the political sphere.  Science can only take them so far, before being overthrown by a conservation-averse bureaucrat or a piece of legislation.

Thus, it behooves every angler, and every person who cares about the future of fishery resources, to remember that fact when they vote, and to support the candidates and platforms that support the natural resources that, in the end, support us all.

 

 

 

 

 

 

 

RECREATIONAL FISHERY REFORM IN THE MID-ATLANTIC: SIDESTEPPING MAGNUSON-STEVENS?

Since March 2019, the Mid-Atlantic Fishery Management Council (Council), in conjunction with the Atlantic States Marine Fisheries Commission (ASMFC), has been working on what they call the “Recreational Reform Initiative,” (Initiative) a project that could completely change the way recreational fisheries are managed in the mid-Atlantic region.

The Council describes the Initiative this way:

The Recreational Reform Initiative considers improvements to management of the recreational fisheries for summer flounder, scup, black sea bass, and bluefish. This joint initiative…will address a range of recreational management issues through a joint framework/addendum and a joint amendment.

The framework/addendum will further develop and consider the following topics and management issues:

• better incorporating [Marine Recreational Information Program] uncertainty into the management process;
• guidelines for maintaining status quo recreational management measures (i.e., bag, size, and season limits) from one year to the next;
• a process for setting multi-year recreational management measures;
• changes to the timing of the recommendation for federal waters recreational management measures; and
• a proposal put forward by six recreational organizations called a harvest control rule.

The amendment will consider options for managing for-hire recreational fisheries separately from other recreational fishing modes (referred to as sector separation) and will also consider options related to recreational catch accounting such as private angler reporting and enhanced vessel trip report requirements for for-hire vessels.

Goal/Vision:

• Stability in the recreational management measures (bag, size, season)
• Flexibility in the management process
• Accessibility aligned with availability/stock status

Reading that description, one of the things that sticks out is that, despite all of the words, there’s not a single mention of maintaining healthy and abundant fish stocks.

That could signal a problem.

Recreational fishery management isn’t perfect, and could benefit from new approaches that account for management uncertainty, and perhaps align management changes with the biennial stock assessment updates that are produced for summer flounder, scup, black sea bass, and bluefish. Still, there is one aspect of the Initiative that might be taking recreational fishery management in the wrong direction.

That is the “proposal put forward by six recreational organizations called a harvest control rule” (Control Rule) which supposedly promotes the Initiative’s Goal/Vision of stability, flexibility, and accessibility in recreational fishery management.

If that Goal/Vision reminds you of the debate over the so-called “Modern Fish Act” a few years ago, that’s not a coincidence. The organizations promoting the Control Rule are the same ones that promoted the Modern Fish Act, and are continuing to disrupt red snapper management in the Gulf of Mexico; they are now bringing the same arguments that they have made in the Gulf to the mid-Atlantic region.

They haven’t concealed their intent to undermine the current federal fishery management system, and its use of science-based annual catch limits and accountability measures, in favor of the sort of less structured, seat-of-the-pants management measures that are often used by state agencies, and which have so often failed when employed by the ASMFC.

Their letter to the Council, promoting the Control Rule, flatly states that “we strongly support NOAA Fisheries using management approaches for our sector other than pound-based quotas…Over many decades, states have proven the ability to balance conservation and access by managing America’s millions of saltwater anglers through these approaches in state waters…”

Yet, in the real world, efforts to “balance conservation and access” almost always end badly. Management measures that failed to fully provide for the biological needs of fish stocks, in order to accommodate higher recreational harvests, have led to the once-healthy striped bass stock becoming overfished once again, caused the precipitous decline in Louisiana’s speckled trout, and permitted such chronic overfishing of Texas’ red drum and speckled trout populations that the recreational fishery can only be maintained with large infusions of hatchery-produced fish.

Unfortunately, the Control Rule seems to be gaining real traction at both the Council and at the ASMFC. Those organizations held a two-hour joint meeting in August 2021, solely to discuss the topic. Materials distributed prior to the meeting explained, “The overarching goal of the Harvest Control Rule is to rely less on expected fishery performance compared to a catch or harvest limit…and instead use a more holistic approach that places greater emphasis on traditional and non-traditional stock status indicators.”

At a meeting of the Council’s Fishery Management Action Team (FMAT) and the ASMFC’s Plan Development Team (PDT) held on August 23, 2021, it was clear that both the Council and the ASMFC intended to use the Initiative to develop regulations for the 2022 fishing season.

To that end, the Council and ASMFC developed four sets of alternative management approaches that might achieve the Initiative’s goals. All of them abandon the current practice of setting a fixed recreational harvest limit (RHL), comparing it to current recreational landings, and then adjusting management measures, depending on whether landings were above, roughly equal to, or substantially below such limit.

Council and ASMFC staff invested a substantial amount of time, skill, and effort in developing all four alternatives, which collectively consider a host of factors ranging from biomass to recruitment to trends in fishing mortality; they represent an impressive body of work. Yet the question remains: What are any of the alternatives intended to accomplish?

At the August 23 meeting, Savannah Lewis, who is heading the PDT for this project, stated that the “overarching goal” of the Initiative was to provide stability in management measures. However, if that were the Initiative’s primary purpose, such goal could be achieved far more easily, and with a far smaller investment of time and resources, merely by establishing a recreational harvest target that was set somewhat lower than the RHL, to account for management uncertainty.

Adam Nowalsky, a Council member from New Jersey, probably came closer to describing the Initiative’s true purpose at the earlier joint meeting of the Council and ASMFC, when he observed that it “provided a path forward” to liberalizing regulations governing stocks at high levels of abundance.

In other words, the Initiative will let anglers take home more fish.

While that might be a worthwhile goal, his comments elicit the question “Why can’t they harvest more fish today?”

The answer would seem to be the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which set very clear, legally-enforceable standards for fishery management measures.

Pursuant to Magnuson-Stevens, the Council’s Scientific and Statistical Committee (SSC) must recommend a maximum fishing level for each managed fish stock. That is typically the acceptable biological catch (ABC), which is set somewhat below the overfishing limit to account for any scientific uncertainty. The Council must then set an annual catch limit (ACL) for such stock, which may not be higher than the ABC, and allocate the catch limit between the commercial and recreational sectors. Once such allocation determines the recreational catch limit, managers estimate how many fish will die after being released by anglers, and deduct that amount from the catch limit to finally come up with the RHL.

It’s a very simple, data-driven process, although it is not without its problems. Because of the uncertainty inherent in estimates of fish abundance, angling effort, and recreational landings, the RHL can often seesaw from year to year as the estimates change, even though both fish abundance and recreational landings remain relatively stable. The Initiative seeks more regulatory stability by partially or completely decoupling management measures from estimates of recreational harvest.

But in doing that, is the Initiative also providing a way to evade the strict, and historically effective, management approach required by Magnuson-Stevens?

There is reason to worry that is the case.

No one on the FMAT or PDT can yet explain how Magnuson-Stevens’ requirement that the Council establish an ACL for each managed stocks impacts the Initiative. At the August 23 meeting, Julia Beatty, who leads the FMAT, noted that it wasn’t clear whether the Initiative’s management measures would be tied to the ACL, or whether the Council would merely invoke some sort of accountability measures if it learned, in retrospect, that recreational landings were too high.

She observed that it was “open-ended what we can legally do” in that regard, and noted that the National Marine Fisheries Service’s (NMFS) Greater Atlantic Regional Fisheries Office (GARFO) has advised the Council that it has significant flexibility to craft management measures.

Still, “open-ended” might be overstating Council’s legal position vis-à-vis the provisions of Magnuson-Stevens.

It’s not hard to imagine that someone, perhaps one of the large marine conservation organizations, might challenge the Council’s decision to adopt recreational management measures that aren’t explicitly tied to the ACL. If that happens, and if NMFS endorses the Council’s decision despite such objection, it’s also not hard to imagine the agency ending up in court, where its attorney would have to explain to a judge that the agency established an ACL, just as Magnuson-Stevens required, but didn’t consider that ACL when it adopted recreational management measures, because Magnuson-Stevens didn’t explicitly say that it had to.

Few judges are likely to uphold such an argument.

NMFS might also have a difficult time explaining how management measures developed pursuant to the Initiative would comply with at least two of the National Standards for Fishery Conservation and Management contained in Magnuson-Stevens.

There are ten such National Standards. National Standard 1 states, in part, that “Conservation measures shall prevent overfishing.” A 2000 federal appellate court decision, in the matter of Natural Resources Defense Council v. Daley, construed such language to mean that fishery management measures must have at least a 50% probability of accomplishing that goal.

It is not yet clear how the Council or NMFS will determine that fishery management measures, linked to neither the ACL, the ABC, nor estimates of recreational harvest, have no less than a 50% probability of preventing overfishing. If the Initiative moves forward, NMFS‘ attorneys may very well have to defend the effectiveness of such measures in court.

The good news is that Emily Keiley, who represents GARFO on the FMAT, has stated that she will run the Initiative’s management proposals past NMFS’ National Standard 1 specialists, to confirm that they comply with the applicable guidelines. There is reason to hope that litigation can still be avoided.

Another national standard, National Standard 2, states that “Conservation and management measures shall be based on the best scientific information available.” The Initiative may fall short of that mandate as well, particularly if it is used to set 2022 management measures.

There are some very good scientists sitting on the FMAT and PDT. They are working on two different models that might be used to implement management measures pursuant to the Initiative. However, neither model has yet been completed, and neither is expected to be finished at any time soon.

One of the scientists on the FMAT explicitly stated that “I don’t think either model is going to be in place on the biological side…for 2022.” His observation evoked a response from a PDT member, to the effect that the FMAT and PDT shouldn’t constrain themselves from moving forward with the Initiative simply because the models aren’t perfect, since the models and resulting management measures could always be revisited later.

While such response makes sense for the ASMFC, which has no legal obligation to base its management measures on the best available science, NMFS’ management actions are governed by National Standard 2; it will have to decide whether management measures developed pursuant to an incomplete biological model would meet its legal obligations pursuant to National Standard 2.

It’s difficult to predict what NMFS might decide, but it’s easy to believe that implementation of the Initiative shouldn’t be rushed. Why not get the science right the first time, instead of being forced to go back and fix earlier mistakes? And why not resolve the legal issues at the same time?

The fishing industry and anglers’ rights organizations which support the Control Rule argue that “the Modern Fish Act authorized the regional fishery management councils to use additional management tools [besides annual catch limits] more appropriate for recreational fishing, many of which are successfully used by state fisheries agencies (e.g., extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities.)”

That statement is true.

But it is also true that the Modern Fish Act intended such measures to only supplement, and not replace, the ABCs, ACLs, rebuilding deadlines, and accountability measures required by Magnuson-Stevens. The Modern Fish Act specifically states that

"Nothing in this Act shall be construed as modifying the requirements of sections 301(a) [the National Standards], 302(h)(6) [requiring annual catch limits], 303(a)(15) [requiring management measures that prevent overfishing and hold fishermen accountable for their overages], or 304(e) [rebuilding overfished fisheries] of the Magnuson-Stevens Fishery Conservation and Management Act…or the equal application of such requirements and other standards and requirements under the Magnuson-Stevens Fishery Conservation and Management Act…to commercial, charter, and recreational fisheries, including each component of mixed-use fisheries."

Thus, the question remains.

Will the Initiative improve the recreational fishing experience while maintaining the long-term sustainability of mid-Atlantic fish stocks? Or will it be used to undercut the science-based management measures that lie at the heart of Magnuson-Stevens, increasing recreational landings while decreasing the protections afforded to the mid-Atlantic’s marine resources?

Right now, it is too early to know. But it is not too early to become concerned, and monitor the Initiative’s progress closely, to assure the integrity of the fishery management process.

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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/

CONGRESSIONAL SPORTSMEN'S FOUNDATION SUPPORTS BAD GULF RED SNAPPER SCIENCE

 Last week, the Congressional Sportsmen’s Foundation issued a press release critical of federal red snapper management in the Gulf of Mexico.  In particular, the Foundation criticized the National Marine Fisheries Service’s insistence that state-generated red snapper harvest data be calibrated, so that it could be used in conjunction with data generated by NMFS’ Marine Recreational Information Program.  The release also praised the Gulf of Mexico Fishery Management Council’s April refusal to require such calibration in advance of the 2021 red snapper season, and more recent, August refusal to require such calibration ahead of the 2022 snapper season.

I’ve written about the calibration issue before.  The story is fairly straightforward. 

All five of the states bordering the Gulf of Mexico have developed their own programs for estimating annual red snapper catch, landings, and effort.  The designs of four of those programs, Florida’s State Reef Fish Survey, Alabama’s Snapper Check, Mississippi’s Tales ‘n Scales, and Louisiana’s LA Creel (Texas still employs an archaic survey first adopted in 1974 and revised in 1983, which was developed without NMFS guidance and has not, and almost certainly will never be, certified by the agency), have been certified by NMFS as “statistically valid for monitoring recreational catches.” NMFS has stated that

“Estimates from these surveys can be used for federal scientific stock assessments and fishery management once a transition plan is developed that addresses:

“1.  How to best integrate these supplemental surveys with the general MRIP surveys.

“2.  How to best adjust historical estimates based solely on the general MRIP surveys to be consistent with new estimates based on the integrated approach.  [emphasis added]”

As early as January 2017, it was recognized that use of data from the state-administered surveys

“in stock assessments and management actions, requires their conversion into a ‘common currency’ that makes them comparable to historical MRIP estimates.  Implementation of such a conversion requires development of peer-reviewed scientifically valid methods, which is expected to take an additional six months.  [emphasis added]”

Four and one-half years have now passed, and the needed “common currency” has not yet been developed, yet the Congressional Sportsmen’s Foundation, like the Gulf Council itself, is seeking even more delay.

The reason for such opposition is just what one might expect:  If state-administered data were recalibrated to make it comparable to MRIP estimates, such data would show that anglers in some states, including Alabama, Mississippi, and Texas, significantly overfished their state red snapper quotas, and would face substantially more restrictive regulations in order to correct the problem.  Thus, the Center for Sportfishing Policy and its affiliated organizations, which have actively working to disrupt science- and data-driven red snapper management in the Gulf for the last decade or so in order to hike the recreational red snapper kill, has gone all-in to discredit the recalibration process.

Last week, we saw how Ted Venker of the Coastal Conservation Association, one of the founding organizations behind the Center, use “alternative facts” and a “post-truth” approach in an effort to undercut calibration and federal red snapper management.  Now, the Congressional Sportsmen’s Foundation, another leading member of the Center, is taking its turn at undermining federal red snapper management.

To give the Foundation what little credit it may be due, its rhetoric wasn’t quite as heated as that coming out of the CCA, and it’s claims were more in the nature of post-truth spin rather than full-out alternative facts. 

It first set the tone by heading its press release

“Gulf Council Hands Red Snapper Debacle Back to NOAA Fisheries,”

as if the problem was created by that federal agency, instead of by the Gulf Council’s intransigent refusal to move forward with badly needed calibration, and too many Gulf Council members’ willingness to violate the oath that they swore upon being seated.  That oath states, in part, that

“I, [name of the person taking oath]…commit myself to uphold the provisions, standards, and requirements of the Magnuson-Stevens Fishery Conservation and Management Act…”

At the August Gulf Council meeting, there was plenty of reason for the Council members to believe that the provisions of Magnuson-Stevens required them to begin the data calibration process.  Such reason came in the form of a memo from Dr. Clay Porch, Director of the Southeast Fisheries Science Center, to Dr. Andrew Strelcheck, the Acting Regional Director of NMFS Southeast Regional Office, and a subsequent letter from Dr. Strelcheck to Dr. Carrie Simmons, the Executive Director of the Gulf of Mexico Fishery Management Council.

Dr. Porch’s memo advises Dr. Strelcheck that, with respect to the Gulf of Mexico Red Snapper Recreational Data Calibration and Recreational Catch Limits framework action approved by the Gulf Council at its April 2021 meeting,   

“Alternative 1 [No Action—Retain the state-specific red snapper private angling component annual catch limits (ACL) established in Amendment 50A for the Fishery Management Plan (FMP) for Reef Fish Resources in the Gulf of Mexico (Reef Fish FMP)] should be explicitly identified as a non-viable option…[such alternative is] expected to result in the private angling sector continuing to exceed the total ACL indefinitely.

“In the discussion of alternative 1 add the underlined to the following sentence:

‘This is inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and is therefore not a viable option for management.’”

The Gulf Council followed that much of Dr. Porch’s advice.  But Dr. Porch also noted that

“The decision to defer the effective start date for preferred alternative 2 [Modify the state-specific red snapper private angling component ACLs using the ratio calibrations developed by the National Oceanic and Atmospheric Administration’s (NOAA) Office of Science and Technology (OST) and the respective Gulf states] to 1/1/2023, when it could be in place for 2022, is not based on best available science.  All other alternatives presented in the framework action can be implemented by 2022 and no definitive justification for the separate treatment of alternative 2 was presented in the discussion of the action.  The deferred start date for alternative 2 would, as stated in the document, result in the private sector ACL being exceeded in 2022.  This is inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act.

“The effective date for alternative 2 should be moved to 1/1/2022 and all supporting text should be updated to reflect this change.  [emphasis added]”

In response to that advice, Dr. Strelcheck informed the Gulf Council that

“The [Southeast Fisheries Science Center] responded with comments on the Framework Action on June 21, 2021…One of the comments indicated that Preferred Alternative 2 was not based on the best available science because it delayed the implementation of the calibration methodology until 2023.  The [Southeast Fisheries Science Center stated that delaying implementation would result in the private angling component exceeding their annual catch limit in 2022.  The [Southeast Fisheries Science Center] points out that this is ‘inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act.’

“…Because the Council has yet to transmit the Framework Action to [the Southeast Regional Office] for implementation, I request the Council add this to the August 2021 meeting agenda to review and address  the [Southeast Fisheries Science Center] comment…”

Despite such request, the Gulf Council voted against amending the Framework Action as requested by Dr. Strelcheck, and so abandoned their oath to comply with the provisions of Magnuson-Stevens, thus setting the stage for NMFS to disapprove their illegal action, and leave red snapper management in limbo.

Perhaps those who ignored their oath and their duty believed that they were in a win-win situation; whether NMFS approved the 2023 recalibration date, or whether it disapproved the Framework Action, recreational red snapper quotas for the 2022 season would remain status quo.  Or maybe they are hoping that disapproval will lead to the Secretary of Commerce issuing emergency regulations to prevent overfishing, which their allies might challenge in a friendly court.

Whatever their thinking, the Congressional Sportsmen’s Foundation chose not only to support, but to praise, the oathbreakers.  And they did so on the flimsiest pretenses, admitting that

“Averting a severe cut in the 2021 red snapper seasons in Alabama and Mississippi, the Gulf of Mexico Fishery Management Council voted at the April meeting to delay implementing the calibration of the Gulf states data collection programs until 2023,”

and then justifying such vote by saying

“Why it Matters:  Red snapper are one of the most important recreational species in the Gulf of Mexico, and particularly in the states of Mississippi and Alabama.  Prior to the April 2021 meeting of the Gulf of Mexico Fishery Management Council, these two states were facing potential drastic cuts in their private recreational red snapper season because of discrepancies in angler catch reporting between the old federal data programs and the new, more reliable state data collection programs…”

It’s important to note the misdirection here; while the state-administered data programs may be better suited for in-season management, as they process the data more quickly than NMFS’ MRIP, there are no objective, peer-reviewed studies suggesting that such programs are inherently more accurate than MRIP; the entire point of the NOAA Fisheries certification process is to assure that such programs are good enough to use for fisheries management.  The notion that the state-administered programs are more accurate is purely a construct of the Center, which prefers such programs simply because they make recreational landings appear to be smaller.

The Congressional Sportsmen’s Foundation tries to hide that naked truth behind a thin cloak of science, arguing that

“The justification for delaying the calibration is to provide time for NMFS to work with the states to determine the reason for the data discrepancies and to provide an opportunity to develop a more suitable calibration methodology based on the recommendations of a recent National Academy of Sciences report—Data and Management Strategies for Recreational Fisheries with Annual Catch Limits (2021).”

Such argument suggests that “the reason for the data discrepancies” is unknown, which is certainly untrue; as noted above, NMFS recognized that the differences in methodology between the state-administered programs and MRIP would lead to “data discrepancies” nearly five years ago.  It also suggests that the current calibration methodologies are somehow inconsistent with the National Academy of Sciences report.

But let’s look at what that report really says.  In the chapter titled “Optimizing Use of MRIP Data and Complimentary Data for In-season Management,” the report states that

“Since stock assessments rely on a long time series of consistently collected data, and many federally managed stocks straddle state and survey boundaries, intercalibration of surveys is essential whenever a single survey is insufficient to support all assessment and management needs.  Rigorous survey intercalibration requires temporal and special overlap between surveys.  The need for intercalibration and the consequences of using different, uncalibrated surveys for various aspects of assessment and management are evident where different surveys provide very different estimates of the same unknown quantity (in the same units) and where precision of surveys is perceived or known to differ.  [emphasis added]”

The report also notes that

“coordination is particularly critical in regions where survey methods may vary across states or specific fishery contexts, as well as when new survey programs are launched or modified.”

The Gulf recreational red snapper fishery certainly fits that description.

It would seem, then, that contrary to the Congressional Sportsmen’s Foundation’s suggestions, recreational red snapper data in the Gulf, where state-administered surveys and MRIP “provide very different estimates” of recreational red snapper landings, and where the “precision of surveys is perceived…to differ,” demands calibration of the state-collected data.  Delay in calibrating such data would appear to be directly the opposite of what the report recommends, which is that

“Interstate Fisheries Commissions, States, NOAA Fisheries, and other members of MRIP Regional Implementation Teams should anticipate and take into account the need for intercalibration and continued survey development when new recreational fisheries surveys and survey methods are considered.  These needs should also be clearly communicated to anglers, fishery managers, and other stakeholders.”

Although NMFS has “clearly communicated” the need for calibration of state-collected data since at least 2017, describing such need on multiple websites, and the Congressional Sportsman’s Foundation doesn’t deny

“that a calibration to ensure consistent currencies between states [although, given a strict reading of the Foundation’s press release, not between the states and MRIP] is necessary,”

the Foundation is still attempting to push such calibration off into the future, seemingly in the hope that a new red snapper stock assessment might render harvest reductions unnecessary.

Because, in the end, despite all of the efforts to swaddle its argument in a more attractive wrapper, the Congressional Sportsmen’s Foundation’s objections to calibrating the state-collected red snapper data, like the objections of the CCA and Center for Sportfishing Policy, are not about good science.  Rather, they are all about finding a way to let recreational fishermen to kill far more fish than good sense or good science would allow.

Multiple press releases, sent out by various entities, may make it appear that a diverse array of organizations are lining up to criticize federal red snapper management.  But in the end, what we really have is the Center for Sportfishing Policy playing the tune, and groups like the CCA and Congressional Sportsmen’s Foundation getting up to dance when the Center pulls on their strings.

No one who is actively involved in Gulf fishery management is fooled by the display.  Only the angling public is gulled, the very same angling public that such organizations pretend that they serve.

 

ASMFC TEAM DEVELOPS SOLID PROPOSALS FOR PROTECTING THE 2015 YEAR CLASS OF STRIPED BASS

 The Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Plan Development Team continues to work on a draft Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which will be presented to the Atlantic Striped Bass Management Board when it meets in October.  I sat in on Plan Development Team meetings held on August 31 and September 2, and was pleased with much of what I heard.

The PDT is working hard to come up with measures that will not only protect whatever remains of the big 2015 year class, but also the 2017 and 2018 year classes which, while not as large as the 2015, could make a real contribution to rebuilding the stock if given adequate protection.

Thus, the beginning of the August 31 meeting was everything that one would hope to see at a fishery management meeting—a group of fishery managers sifting through alternatives meant to conserve the striped bass, using the best available science to choose a range of alternatives most likely to protect the 2015, 2017, and 2018 year classes, which alternatives will be included in the draft Amendment 7.

A few of the alternatives are familkiar, as we saw them in Addendums IV and VI.  A couple are new.  Some may have unintended consequences that should bar them from serious consideration.  But all are being analyzed in the context of how much protection they will give the three important year classes. 

The PDT presented the current 28- to 35-inch slot as a baseline.  In 2023, the first year that any new size limit would probably go into effect (although the Management Board could change the size limit for 2022, with the understanding that the new limit wouldn’t go into effect until the middle of the season in a number of states), the existing slot limit would protect only about 33% of the 2015s, 69% of the 2017s, and 90% of the 2018s.  In future years, as the 2015s grew larger, a greater percentage would be protected by the upper end of the slot, but at the same time, more and more of the 2017s and 2018s would be growing larger than 28 inches, and so would be vulnerable to harvest.

Thus, it is clear why other alternative management measures are needed.

The options that received the greatest consideration at the August 31 meeting included a 35-inch minimum size, a 32- to 40-inch slot, and a 20- to 27-inch slot.  Each option would have a different impact on the stock.

The 35-inch minimum size, which received the strongest support from anglers during the Addendum VI comment period (comments in favor of the 35-inch minimum equalled about 250% of comments made in favor of all other options, combined), would protect about 83% of the 2015s, 99% of the 2017s, and 100% of the 2018s if it became effective in 2023.  Protection of the 2015s would decrease in future years, as would protection of the other two year classes, as the fish grew larger than the minimum size.  The impacts of a 36-inch minimum size were also calculated; in 2023, it would give marginally better protection to the 2015s (89%), but would otherwise have the same practical effect as the 35-inch minimum.

The 32- to 40-inch slot would, in 2023, only protect about 56% of the 2015s, although that percentage would increase as the fish grew larger; it would have the opposite effect on the 2017s and 2018s, protecting 95% and nearly 100%, respectively, in 2023, with those percentages declining as the fish began to exceed 32 inches in length.

The 20- to 27-inch slot was selected as an alternate approach that would protect the 2015s with a slot smaller than the one currently in effect.  In 2023, it would protect nearly 90% of the 2015s, but only 46% of the 2017s and just 26% of the 2018s, with the protection for all three year classes increasing as their lengths increased--although for the 2018s, escaping the top end of the slot would take a while.

One thing that wasn’t considered in the case of the 20- to 27-inch slot was its impact on effort.

Anglers who regularly target striped bass generally fish for sport; they may take a fish or two home every season, but for the past 35 years or so, they have released about 90% of their catch every season.  Reducing the slot size to 20 to 27 inches probably wouldn’t impact those fishermen at all.  But there is another group of anglers who do fish for meat, and tend to target whatever sort of fish that they can catch that they can also take home.  

If the 20- to 27-inch slot was put in place for 2023, there would be times and places, particularly in the New York Bight and Long Island Sound, given the big 2020 year class produced in the Hudson River, where it would probably be easier to catch a 20-inch striped bass than a 19-inch summer flounder or even a 15-inch black sea bass, particularly for anglers fishing from shore.  Such situation would lead to a significant effort shift away from traditional saltwater panfish and toward the immature bass, with resultant harm to the striped bass population.

Fortunately, the 20- to 27-inch slot no longer appears to be on the table.  At the PDT meeting held this morning (September 2), the Plan Development Team seemed to be in general agreement that dropping the lower end of the slot below 28 inches was not a good a bad idea. 

Although there was some sentiment in favor of including a smaller option—23 to 28 inches was specifically mentioned—in order to illustrate that increasing the minimum size wasn’t the only way to protect the 2015s, the suggestion didn’t have strong support, for a number of reasons.

Some believed that, because the minimum size for striped bass had been 28 inches for so many years, a smaller slot would represent too radical a change, although one PDT member noted that the 23- to 28-inch slot would be a viable option if the Management Board was willing to institute “a regime shift” in the coastal striped bass fishery.

One PDT member noted that because no slots smaller than 28 to 35 inches were analyzed in Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, no one was sure whether the 20- to 27-inch or 23- to 28-inch slots would achieve the 18% reduction in fishing mortality contemplated by Addendum VI.  

Another noted that while the currently contemplated measures were designed to protect the 2015 year class, and perhaps the 2017 and 2018 year classes as well, there is always the possibility that another strong year class could appear; if that happened, a 20- to 27-inch slot might not give the ASMFC enough time to put measures in place to protect such year class before it grew into the slot.

While it looks like the smaller slot limits will probably not be a part of the draft Amendment 7, it is very possible that a narrower, 28- to 32-inch slot limit might be.  Such a limit would help to protect the 2015s, which by 2023 would be approaching the upper end of the current slot; calculations suggest that in that year, the narrower slot would protect 61% of that year class, with a larger percentage protected in later years.

A 28- to 32-inch slot would also open the door to a sort of reverse-Amendment 3 management strategy.  Adopted in 1985, Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass was intended to rebuild the then-collapsed stock by protecting the reasonably healthy 1982 year class, and all subsequent year classes, with a minimuAm size that increased incrementally each year, in order to protect at least 95% of such year class’ females from harvest.

A 28- to 32-inch slot limit could be adjusted in a similar way, with its upper limit increased incrementally as the 2015 year class increased in size, until the current 28- to 35-inch slot was restored, while still protecting the 2015s.

Of course, that wouldn’t do much to help the 2017s and 2018s, which would be well-protected in 2023, with 73% and 91%, respectively, smaller than the 28-inch minimum.  However, that protection would wane as the fish grew larger.  Perhaps—although the Plan Development Team didn’t discuss this—the right thing to do would be to incrementally increase the lower end of the slot as well, to protect the growing 2017s and 2018s at the same time that an increasing upper end of the slot trailed the 2015s’ growth.

The 28- to 32-inch slot would convey an additional benefit, reducing striped bass landings below the current level, and so lead to a more conservative management regime.  The one concern some PDT members had was that the narrower slot would also result in an increase in recreational release mortality, and thus erase some or all of the gains achieved by the slot limit.

The impacts of the narrower slot will be calculated in the upcoming weeks. 

One can only hope that, once the analysis is completed, the Plan Development Team will focus on such slot’s impact on overall mortality, and not merely on the number of fish that die after release.  For in the end, recreational release mortality is a red herring, that misdirects people’s attention from more important things.  

It is overall fishing mortality that matters.  

Exchanging a little more release mortality for significantly less overall fishing morality is always a worthwhile trade, particularly when, by doing so, one can also protect a cohort that is important to the future of the stock.

It would be extremely unfortunate if fear of additional release mortality got in the way of such important protections.

Some of the proposals for the other issues being considered by the PDT—release mortality, conservation equivalency and, most of all, the management triggers—remain problematic.  But the Plan Development Team has done some very good work designing options to protect the few strong year classes that represent the future of the striped bass stock.

They deserve our thanks for doing so.

BLUEFISH MANAGEMENT: A TALE OF TWO FISHERIES

 Over the past few years, I’ve written quite a bit about bluefish management.

During that time, I’ve criticized proposals to shift recreational quota to the commercial sector.  I’ve argued for the recreational bluefish fishery to be managed for abundance rather than for landings.  And I’ve directed unkind words at both the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Bluefish Management Board for making decisions that always seem to favor high current landings rather than the long-term health of the stock.

But what I realized that I never have done is taken a real look at the fishery itself.  That’s a serious omission, because without understanding the nature of the fishery, it’s difficult to understand why some of the current management measures fall so wide of the mark.

Perhaps the first thing to understand is that the New England/mid-Atlantic bluefish fishery is unique because, of all the popular inshore recreational fisheries, it is one of the few that, in most states, is not governed by any sort of size limit.  

There are a few others.  

To the north, there are no recreational size limits for either Atlantic herring or Atlantic mackerel, but both of those species are essentially baitfish, that are subject to commercial harvest on an industrial scale, and support relatively small recreational fisheries.

Farther south, there are various panfish, such as puffers and northern kingfish, spot and Atlantic croaker, that can be landed without regard for size.  But the former two species are effectively unmanaged throughout their range, while the latter two are so small that imposing a size limit on the recreational fishery would border on the impractical.

Bluefish are different.  They are a relatively large fish, that can frequently exceed ten pounds in weight and, on not so rare occasions, might exceed 20.  The International Game Fish Association recognizes a 31-pound, 12-ounce bluefish, caught off North Carolina in 1972, as the all-tackle world record.  At the same time, young-of-the-year bluefish, known colloquially as snappers, typically flood inshore waters during late summer, where they are easily caught from shore, boat docks, and piers. 

The snappers support a fishery that is very different from the fishery for larger bluefish.  The snapper fishery is generally prosecuted from shore, although there is also a small-boat component.  The cost of entry is low; untold numbers of snappers have been caught with nothing more than a cane pole, hook, and length of line, along with some frozen bait. 

Because snappers are so readily accessible, the fishery attracts children, who often keep their fish, either marinating them in buckets of warm seawater or scraping their sun-stiffened bodies off the hot pavement of local docks at the end of the day.  

It also attracts older anglers who can no longer endure rough seas or extended outings, but can still sit in a folding chair and enjoy catching snappers from shore; such anglers may release all or part of their catch, but may also take some fish home for a tasty and low-cost meal.  The promise of inexpensive protein, and the fact that snappers can often be found along urban waterfronts, also make them a frequent target of lower-income folks and recent immigrants who typically fish for food.

But, although there are exceptions, snappers are not widely sought by serious anglers, unless they are on a family outing.

The fishery for big bluefish is very different. 

While quite a few larger bluefish are caught from shore, boat fishermen play a significant role in the fishery.  Although more than 50% of all bluefish caught from shore in 2019 were snappers—fish no more than 12 inches long—over 55% of bluefish caught from boats were larger than 14 inches in (fork) length.  While the large bluefish fishery does have a catch-and-keep component, many anglers tend to release larger fish, believing that the meat becomes strong tasting, to the point of being unpalatable.

The big bluefish fishery is, unlike the snapper fishery, largely a catch-and-release fishery; data used in the last benchmark stock assessment supports the notion that anglers tend to release their bigger bluefish, and keep the smaller ones.  The big bluefish fishery also tends to be more equipment intensive, requiring larger, more expensive rods and reels, and often involving relatively costly artificial lures.

Unfortunately, the differences between the snapper fishery and the large bluefish fishery don’t appear in management documents; there is a real risk that, because the snapper fishery is so popular along parts of the coast, snapper-related data distorts overall bluefish catch, effort, and landings data, which results in a significant misunderstanding of how the large bluefish fishery is prosecuted.  

The Mid-Atlantic Council and Bluefish Management Board have adopted management measures based on the assumption that the bluefish released by anglers participating in the big-fish fishery are the same size as those that are retained by anglers in the snapper fishery, despite the real-world bias toward catch-and-keep in the snapper fishery and the bias toward catch-and-release in the large bluefish fishery.

Thus, the estimate of recreational release mortality is almost certainly too low, which means, in turn, that regulations based, in part, on such estimate may not be restrictive enough to keep overall fishing mortality below the fishing mortality target.

And that’s before we even get to the question of stock structure.

Bluefish are managed as a single stock, that ranges from Maine to Florida.  Such approach is supported by both genetic and tagging data.  However, the Atlantic coastal stock seems to be divided into three components.  One component migrates along the coast, with some individuals migrating from New England as far as Florida.  One component remains in the mid-Atlantic area, and doesn’t migrate much farther south than North Carolina.  A third component remains off Florida, migrating inshore and offshore.

The regional bluefish fisheries that target such sub-stocks also differ.  

In New England, bluefish 12 inches or less in length accounted for less than 8% of all shore-based landings in 2019; 14-inch (fork length) bluefish accounted for well over half of the landings there, while nearly 55% of the boat-caught fish were 16 inches (fork length) long or larger.  

In the mid-Atlantic, where the snapper fishery is very important, nearly 80% of all bluefish landed in 2019 were no more than 12 inches (fork length) long.  On the other hand, 58% of boat-caught fish were at least 14 inches in length.  

In the South Atlantic—the Carolinas to Florida—large bluefish are not a big part of the fishery.  While 12-inch or smaller snapper blues only comprised a little more than 40% of shore-based anglers’ landings, virtually all of the shore-caught fish were no more than 18 inches (fork length) long.  The fish caught from boats also trended smaller than elsewhere on the coast, with less than 30% more than 14 inches (fork length) in length.

By combining the regional fisheries into a single set of management measures, the Mid-Atlantic Council and Bluefish Management Board ignore regional differences in the fishery.  That’s important, for regulations that might be appropriate in the mid-Atlantic, for a sub-stock that rarely ranges south of Cape Hatteras, may not make sense for sub-stocks of fish that range from New England into the south Atlantic, or for those that never stray from the Florida coast.

While I referred to bluefish as a tale of two fisheries—snappers and adults—the true picture is much more complicated than that.  Recreational bluefish management is a tale of many fisheries:  of young-of-the-years and adults; of wide-ranging migrants and fish that never leave Florida waters; of a primarily catch-and-keep fishery for small fish, and a primarily catch-and-release fishery for adults.

The current management plan for bluefish, which tosses all of those fisheries into a single pot, and tries to come up with management measures that will work for all, is overly simplistic.  Because it ignores the differences between the fisheries, it adopts generalized, one-size-fits-all management measures that, in the end, don’t fit any of the diverse bluefish fisheries particularly well.

We can hope that they’ll work despite that reality.

But we should not be surprised if they don’t.