MONITORING MARINE FISHERIES; OR, SHINING SOME SUNLIGHT ON FISHERMEN'S ACTIONS

 Marine fishery resources belong to the public.

That’s obvious—so obvious that I shouldn’t have needed to write it down—but sometimes, fishermen seem to think that such resources belong to them, and that they need not be fully accountable to the public for the fish that they catch, and how they go about catching them.

We’ve seen that sort of thing in the news over the past few weeks.

Down in the Gulf of Mexico, there are some charter boat owners who don’t want the government to know whether they’re out fishing or not.  They’re upset because the National Marine Fisheries Service adopted a rule that, as NMFS describes it,

“requires an owner or operator of a vessel with a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species (hereafter referred to as a Gulf for-hire vessel owner or operator) to submit an electronic fishing report (also referred to as a logbook), via NMFS-approved hardware and software, for each fishing trip before offloading fish from that fishing trip.  If no fish are landed, the electronic fishing report must be submitted within 30 minutes after the completion of the fishing trip.  This final rule also requires a Gulf for-hire vessel owner or operator to notify NMFS prior to departing for any trip and declare whether they are departing on a for-hire trip or on another trip type.  If the vessel will be operating as a for-hire vessel or headboat during the specified trip, the vessel owner or operator must also report details of the trip’s expected completion.  Lastly, this final rule requires that a Gulf for-hire vessel owner or operator use NMFS-approved hardware or software with global positioning system (GPS) location capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS…”

 As a result, some of those for-hire owners/operators engaged an organization that calls itself the “New Civil Liberties Alliance” to challenge NMFS’ new regulation.  The New Civil Liberties Alliance describes itself as

“a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State.  NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.”

Such rhetoric probably tells everyone all they need to know about the New Civil Liberties Alliance, and about the Gulf for-hires’ lawsuit—which, it should be noted, is not supported by many members of the Gulf’s for-hire fleet—but just in case anyone has any doubts, I’ll just note that the plaintiffs are arguing that the Fourth Amendment prevents NMFS from monitoring a vessel’s location absent a court-issued “warrant or any suspicion of wrongdoing.”  Plaintiffs’ counsel has said things like

“Everyone who engages in recreational fishing should be livid that the government has asserted a right to monitor your whereabouts at all times because you might be using the fishing resource.  There is no reason to think this incredible invasion of our clients’ constitutional rights, if tolerated, will not be extended to any sportsmen who take fish from America’s waters.

“To give bureaucrats the right to search you at any time on the off chance you are fishing makes our constitutional protections flimsy indeed…”

I’m not sure whether anyone told that attorney, but the United States Coast Guard may board a vessel to do a safety and/or a fishery inspection just about any time that it chooses—a couple of years ago, I had a Coast Guard boarding party pop up out of nowhere when I was shark fishing more than 25 miles offshore—so it’s unlikely that requiring a vessel monitoring system that only provides a location rises to the level of a constitutional affront.

Not surprisingly, given such lines of argument, the plaintiffs lost at the trial level, and the case is now on appeal.

But even taking that case’s merits—or lack thereof—off the table, one has to wonder what some of those for-hire operators are trying to hide.  Are some of them possibly playing a little fast and loose with the regulations that protect the public resources that they pursue?  If not, why go to the time and trouble make a literal federal case out of the new regulation? 

After all, isn’t the public entitled to know that, to the extent practicable, their interests in such resources aren't being abused?

We can see something similar happening up in New England, where the same New Civil Liberties Alliance is representing some members of the industrial fishing fleet, who are challenging NMFS’ decision to require industry-funded observers on the big herring boats that pull mid-water trawls.

Once again, they lost at the trial level, and are taking the matter up on appeal.

To put the controversy in context, Atlantic herring are overfished; abundance has fallen so low that Canada completely shut down its herring fishery earlier this year.  The Atlantic herring fleet also kills a substantial number of badly depleted river herring, a term that encompasses both alewives and blueback herring, as bycatch in the course of its fishing activities.

Given those facts, it hardly seems unreasonable for NMFS to require that the industry respoinsible for at least some of such harm to a public resource pay for the observers needed to monitor just how much harm might be occurring.  However, that idea doesn't sit well with the industrial herring fleet which, through the New Civil Liberties Alliance, argues that Congress did not expressly authorize industry-funded observers, and thus that NMFS lacked the power to require them. 

In the words of Meghan Lapp, a manager at Seafreeze, Ltd., a large fish processing operation, industry-funded observers are

“the equivalent of having a cop in your car who’s policing you while you drive, and you have to pay his salary out of your own pocket.”

While that might be an evocative quote, it’s far from a perfect analogy.  Roads are a public asset.  Everyone can and does use them, at least everyone over the age of 16 who chooses to get a drivers’ license.  On the other hand, while herring are a public resource, held in trust for every citizen of the nation, only a very small handful of those citizens are given the privilege of converting a significant portion of that public resource into a vehicle for private profit.

It's far from unreasonable to expect those same privileged few to provide the public with some assurance that the resource isn’t being damaged by their actions.  To expect the public to underwrite the fleet's responsibility to monitor its impacts on a public resource is, in my view, asking a little too much.

But then, the fact is that many fishermen just don’t like then government, or anyone else, to know just what they are doing, regardless of who is paying for the monitors.  

That message came through loud and clear in the northeast, after the NMFS approved a New England Fishery Management Council decision to require 100% observer coverage in the groundfish fleet.  The coverage didn’t have to be live observers—video recording was approved as well—but so long as sufficient government funding was available, every boat in the groundfish fleet must have either a human or electronic monitor on board.

The Conservation Law Foundation, a New England-based organization that has long called for better management of cod, flounder and other so-called “groundfish,” heralded NMFS’ decision to require 100% observer coverage.  It noted that

“The current program assumes that the data collected on observed trips is representative of activity on unobserved trips.  But that’s not the case.  Analyses show that when an at-sea monitor is on board, fishermen alter what they catch and keep.

“Ultimately, the current monitoring program collects inaccurate data, particularly for overfished species like Atlantic cod.  Without accurate numbers, fishery managers cannot prevent overfishing or rebuild cod—as required by law.”

But fishermen don’t want to be on their best behavior all the time, as they are when a monitor is on board.  Sometimes, when they catch far too much of an overfished, highly regulated stock, such as cod, it just makes sense to quietly slip all the dead, excess fish over the side, leaving no one the wiser, so regulators won’t feel compelled to reduce quotas to account for all the dead discards.  Requiring 100 percent of the boats to carry monitors could make it nearly impossible to dispose of such excess fish without having to report the dead discards to NMFS.

Thus, as the Gloucester Times reported last March,

“Not everyone is on board.

“’They want to go 100% observer coverage.  I’m not in favor of it,’ said Gloucester Fisheries Commission member Joseph Orlando, owner of the fishing vessel Santo Pio, and president of the Northeast Fishery Sector II…

“’The discard rate should already be set,’ he said.  What this is all about, he said, is a lack of trust in fishermen, and regulators being pushed ‘by the environmental people.’  The cost of an observer, which he says the government pays for, is about $700 to $800 a day.  He said if fishing vessels had to pay for that, ‘It’s all over.’

“When asked about the use of electronic monitoring to lessen the expense or logistics of having an observer on board, Orlando asked if one would want cameras trained on them at their workplace.

“’All it comes down to is trust,’ Orlando said.  ‘They have no trust in us whatsoever.’”

What he never said, or even tried to explain, is why any such trust would be justified.  As noted in the Conservation Law Foundation press release quoted above, there’s pretty good reason to believe that fishermen act differently when they know they’re being watched than they do when they know that they’re unobserved.  Thus, they seem to fall short of the ethical standard set by the mid-20^th Century ecologist Aldo Leopold, who observed

“Ethical behavior is doing the right thing when no one else is watching—even when doing the wrong thing is legal.”

Which explains why monitors—whether live or electronic—and things like vessel monitoring systems are needed, whether fishermen like them or not.  Because if you want those fishermen to do the right thing, it’s a pretty good bet that you have to watch them—and let them know that you’re doing it.

Otherwise, no one knows what they’ll do.

‘

 

 

THE UNITED STATES' FISHERIES: HOW ARE WE DOING?

 This blog is about fisheries conservation and management.  It tends to focus on individual species, most often those found in New England and the mid-Atlantic, and on the fishery management process itself, examining both legal and political issues.

But sometimes, it’s worth standing back and taking a broader view.  Are the nation’s fish stocks essentially healthy?  And what are the trends?

Are our fish in a better place today than they were a year ago?

As one might suspect, given that the United States’ fish stocks span both the Atlantic and Pacific Oceans, from Maine, Puerto Rico and the Virgin Islands in the east to Guam, American Samoa and Alaska’s most distant islands in the west, that’s not a simple question to answer.  But two reports recently released by the National Marine Fisheries Service, Status of Stocks 2021 and 2020 Fisheries of the United States, provide quite a bit of relevant information.

They make it clear that managing the nation’s fisheries is a huge job.  Right now, there are 460 fish stocks and stock complexes under management, and more may be added; chub mackerel, to provide just one example, were only added to the Mid-Atlantic Fishery Management Council’s Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan in 2019. 

Developing enough information to properly manage a stock is another immense task; just because a regional fishery management council determines that a stock is in need of conservation and management doesn’t mean that the data to do so is on hand.  Of the 460 managed stocks and stock complexes, federal managers only have the information needed determine whether 322 (70%) of such stocks are experiencing overfishing.  It’s even more difficult to determine whether a stock is overfished; sufficient information to make such a finding is available for just 252 (55%) stocks and stock complexes.

Where the information is available, it appears that managers are keeping overfishing under control.  Of the 322 stocks with known overfishing status, only 22 (8%) were suffering from overfishing at the end of 2021.  

Recovering overfished stocks is a more difficult slog; the health if just 252 stocks can be determined, and out of those, 51 (20%) remained overfished at the close of last year, a number that slightly exceeds the 47 once-overfished stocks that have been fully rebuilt since the most important conservation provisions of the Magnuson-Stevens Fishery Conservation and Management Act were adopted in 1996.

Looking at those figures on a year-to-year basis, the number of stocks experiencing overfishing remains unchanged compared to 2020, but the number of overfished stocks has increased from 49 to 51.  However, the numbers don’t tell the whole story.

The status of fish stocks is never static.  The health of fish stocks can be impacted by both fishing and by natural factors, all of which vary from year to year.  While commercial landings are generally driven by quotas and rarely change too much absent a change in regulations or fish abundance, recreational landings can be much more volatile, driven not only by abundance and regulation, but by unpredictable factors that might include weather, fuel prices, general economic conditions, and the relative abundance of one species compared to another.

The upshot of that is that, while the number of stocks experiencing overfishing might not have changed between the end of 2020 and the end of 2021, the identity of some of them has.  Both South Atlantic tilefish and Eastern Pacific yellowfin tuna were removed from the overfishing list because fishing mortality has fallen below their respective fishing mortality thresholds.  On the other hand, in the case of South Atlantic snowy grouper, Gulf of Mexico greater amberjack, South Atlantic gag grouper, and Gulf of Mexico gag grouper, biologists have determined that fishing mortality rose above threshold and added them to the list.

There were two other stocks, South Atlantic speckled hind (a sort of grouper) and South Atlantic Warsaw grouper, that were also removed from the overfishing list, but in the case of those stocks, it wasn’t because fishing mortality had necessarily fallen.  Instead, scientists decided that they currently lack some of the information needed to make a determination, and so changed the designation of both stocks from “Overfishing” to “Unknown;” it is very possible, although not necessarily true, that if their status could still be calculated, managers would have determined that overfishing was still going on.

When it comes to federal managers’ determinations of overfished stocks, there is less ambiguity.  In news that caught me by surprise, California Central Valley/Sacramento River Chinook salmon were removed from the overfished list, while Gulf of Mexico gag grouper, South Atlantic gag grouper, and Bering Sea snow crab were added to the list.  None of the three additions were due to suddenly increased fishing pressure; instead, scientists developed a more accurate stock assessment approach for gag grouper, which resulted in the “overfished” finding, while the Bering Sea snow crab were largely victims of changed environmental conditions brought about by a warming ocean.

One stock was also removed from both the “unknown” categories; Atlantic blacktip shark was fully assessed for the first time, and found to be neither overfished nor subject to overfishing.

Of course, that only applies to federally managed fish stocks.  There are many other stocks, a lot of which are important to the recreational fishery and some of which are commercially important, too, which are solely managed either by state fishery managers or by the states acting cooperatively through the Atlantic States Marine Fisheries Commission, which are not included in the above breakdown.

While the “Status of Stocks” report focuses on the fish themselves, Fisheries of the United States focuses on the recreational, commercial, and aquaculture industries, their use of marine resources, and the resultant revenues.  From a pure conservation standpoint, the status of fish stocks is more important, but economics, demographics, and human behavior remain an unavoidable part of the management process, and must be understood by anyone wanting to make the process work.

One of the more notable aspects of the commercial fishery is that most of its money does not come from what we usually think of as fish; while finfish accounted for 87% of landings, they only accounted for 44% of the value of the catch.  New Bedford, Massachusetts is the nation’s most important commercial fishing port, from the standpoint of its landings' value, which were worth $377 million; 83.6% of that value was derived from the scallop fishery, which only comprised 26% of the port’s landings by weight.

In fact, finfish only compose one of the five most valuable commercial species groups.  That group, salmon, produced landings worth $478 million in 2020, an amount which, while substantial, is dwarfed by the $2.07 billion in value collectively generated by the other four, non-finfish groups, which include crabs ($584 million), lobsters ($563 million), scallops ($488 million), and shrimp ($435 million). 

Ports where large volumes of finfish are landed, often generate relatively low revenues.  Compared to New Bedford, where fishery products command an average $3.28 per pound, the 800 million pounds of landings in Dutch Harbor, Alaska, the nation’s most important port in terms of volume, generate an average of merely $0.23 per pound.  That’s not merely an Alaskan phenomenon.  Vessels out of Reedsville, Virginia land more fish than any other port in the contiguous United States, yet its 302 million pounds of landings consist of little but low-value menhaden, that generated only $64 million, or $0.21 per pound.

Such values need to be taken into account when considering the highest and best use of marine resources.

On the recreational side, anglers made about 199 million fishing trips in 2020, catching about 1 billion fish.  Of those, about 344 million were either retained or died after release.  The fish that were retained tended to be very small; total recreational landings by weight were only about 353 million pounds, meaning that the average fish retained weighed little more than a pound (1.02 pounds), testimony to the importance of saltwater “panfish” such as spot, scup, and croaker to the recreational fishery.

For the first time in probably two decades, the striped bass was dethroned as the species with the highest recreational landings.  Bass landings dropped from about 24 million pounds in 2018 and 2019 to about 15 million pounds in 2020, a drop that probably reflected both the new, more restrictive regulations that became effective in 2020 and the overfished state of the stock.  Yellowfin tuna took over the striped bass’ place, with about 17 million pounds landed.  Spotted sea trout were the most often caught, but not necessarily the most often retained, recreational species at 54 million, while spot (20 million) and scup (14 million) were the fish most often taken home.

All of those numbers are nice, but what do they actually mean?

One of their most obvious messages is that we ought to be allocating more money to fisheries science.  Scientists currently lack the information they need to determine some of the most basic information about 45% of all managed stocks—whether or not such stocks are overfished, or headed in that direction.  Without such information, it would be all too easy to fish such stocks down to levels that will make it very difficult, or even impossible, to bring them back to health.

The commercial fisheries data, which suggests that high volume/low value fisheries exist for a significant number of species, provides meaningful guidance on resolving sector conflicts and deciding how to best utilize various stocks.  

While sustainable commercial fisheries for high value species might reasonably be encouraged, managers ought to ask whether the highest and best use of other species, such as Atlantic menhaden, may be to leave them in the ecosystem to provide a reliable source of forage for more valuable commercial and recreational species.  In the case of other fish which command relatively low market prices, such as scup ($0.67 in 2019), Atlantic croaker ($1.13), or bluefish ($0.84), but are among the top five species retained by anglers, the greatest social and economic benefits from the resource can probably be realized be slanting allocations strongly toward the recreational sector.

The fact that about 65% of all recreational landings are released, and that the average fish retained by recreational fishermen weighs slightly over one pound, also argues in favor of managers making a real distinction between “food fish” that are typically taken home by anglers and should be managed for yield, and “sport fish” that are typically sought for the angling experience, and should be managed for abundance.

Managing striped bass and scup in the same manner, using the same set of criteria even though anglers typically pursue them for very different reasons, makes no sense at all.

In the end, the United States’ fisheries are so diverse, in the sense of both species and geographical range, and so complex that it is impossible to lump them all into a single conclusion that things are going badly, or that all is well.  There’s a little of both going on.

At the same time, publications like the Status of Stocks and Fisheries of the United States provide a window into nation’s fisheries and its fisheries management program, and the successes and failures of each.  Both are worth a good read.

 

SOMETIMES, WE NEED TO ADMIT THAT THE FISH JUST AREN'T THERE

 Over the 60-plus years that I’ve spent on and around the water, I’ve founds some things to be true:

The best fishing day of the season will be the day that you decide to stay home and work around the house.  The kid who thinks he’s snagged on the bottom is about to win the party boat’s pool.  And people don’t want to admit that there are no fish around.

That last one first made an impression on me back in the mid-1970s, when I had a summer job at a small tackle shop down in the southwestern corner of Connecticut.  

I was fishing just about every morning before work, and fishing a lot of nights after work, too, so I had a good idea of what the striped bass, bluefish, and weakfish were doing on any given day.  The striped bass collapse hadn’t yet begun, just about every morning saw big bluefish blitz bunker schools in at least one of the local harbors, and weakfishing was about as good as weakfishing ever gets in western Long Island Sound, so when people walked into the shop and asked how the fishing was, I could usually point them in the right direction.

It wasn’t always somewhere that they wanted to go.  "Toss bucktails into the rocks around 4:00 tomorrow morning, when the tide is about halfway down” isn’t always the advice that people are looking for.  But my job was merely to sell tackle and bait and provide some adivice; I had no reason to try to force anyone to take whatever advice I provided.

Even during good seasons, there are times when things go dead.  The water gets a little too hot, pushing the bass out of the shallows and driving both them and the weakfish onto the night shift.  Even bluefish can get lockjaw for a few days, when they sit on the bottom in 60 feet of water and ignore anything that doesn’t just about hit them in the face.

That doesn’t mean that someone, somewhere, won’t catch a fish or two, but it does mean that everyone will be making a lot more casts, and burning a lot more fuel, in return for very slim pickings.

When we’d run into a stretch like that, I’d have no trouble telling customers that “Fishing is pretty awful right now…there’s not much around.”  

After that, I’d tell them what I’d been doing that might, if they worked at it, earn them a couple of fish, but I did my best to be honest and avoid creating any false hopes.  The owner of the shop had less restraint, and was usually quick to tell anyone to walk through the door that there were “plenty of fish out there,” although he never quite got around to explaining just where those fish were, or why neither he nor most of the other fishermen were able to put even one of those fish into the boat.

Reality, for my former employer, was anything that might put a dollar into his cash register, whether or not it was actually true.  Unreality encompassed anything that might well be true, but was also unprofitable.

I used to laugh at such attitudes back then, but as I grew older and got involved with fishery management issues, I saw the same situation repeating itself again and again around the management table.  

Fish didn’t disappear because they had been overfished; it was just time for a downward swing in the ever-mysterious “cycle” that caused numbers to decline sharply, or reach new heights of abundance, without any regard to regulations, removals, or fishing pressure.  Fish will disappear and come back when they're ready, we're told, despite our best efforts to control such outcomes.

Thus, some people insist that bluefish aren’t overfished, even though the latest stock assessment update says that’s the case.  The fish aren't scarce, but merely decided to stay farther offshore (a North Shore party boat captain suggested, at a hearing a few years ago, that they dispersed so someplace between New York and Africa; after all, bluefish are found off Africa, too).

And, if you take some people’s word for it, the bluefish are having such a good time in their new offshore Shangri-La that the striped bass decided to join them.  

After the latest benchmark striped bass stock assessment was released in 2019, and found the bass to be both overfished and experiencing overfishing, many folks weren’t willing to admit that the fish were facing problems.  Instead, we were told, the stripers were all offshore, in the EEZ, where no one could legally pursue them. Even a particularly reactionary member of Congress, who represents a district here on Long Island, jumped onto that bandwagon, criticizing the benchmark assessment for failing to use

“alternative data, that shows the Striped Bass stock is in a better place outside the 3-mile limit,”

and criticizing the Atlantic States Marine Fisheries Commission and New York’s delegates to that Commission for following the best available science in such assessment, instead of the “alternative data” that might have led them to the Congressman’s preferred conclusion.

Up in New England, the commercial fishing fleet denied any problem with cod in the Gulf of Maine, and instead argued , to quote The New York Times, that

“the real problem is fuzzy science.”

Some fishermen claim that the cod have just moved from places where they were previously abundant to other, more attractive, areas.  According to The [Massachusetts] Patriot-Ledger, one such fisherman, Edward Barrett of Marshfield, Massachusetts, believe that sewage being released into the ocean off Massachusetts is part of the problem.

“Fish have tails.  If they’re not comfortable in one area, they’ll just go to the next area.”

For a very long time, no one suggested where that “next area” might be, but a new report released by the National Marine Fisheries Service strongly suggests that the “next area” to holds cod may be nowhere.

Fishermen had argued that large cod were abundant in the Gulf of Maine, but that the survey gear that NMFS used when trying to find them was ill-suited for the job.  They tried to convince fishery managers that the big fish were hiding in rocky areas, which trawls have difficulty surveying.

In order to address the fishermen’s concerns, NMFS conducted a new survey, which employed local commercial fishing vessels, and used bottom longlines, rather than trawls, to survey the number of cod that were holding on rough, rocky bottoms.  As explained by NMFS,

“Catching a given species depends on whether a fish will be retained by the gear used, as well as the fish’s population size and behavior.  When comparing catch results from different gear types, scientists consider how probable it is that a fish will be captured by the gear.  Scientists rely on this information to understand how well fisheries survey data represent the population.”

It turns out that the trawl survey represented the cod population pretty well.  After running both the trawl and longline surveys for five consecutive years, NMFS noted that

“Our scientists looked at the overlap between the length distribution of cod…from the two surveys in the spring and fall seasons.  There were no appreciable difference between catches of cod in the two surveys, with large cod extremely rare in both.

“Large cod had a similar distribution between the two surveys, and were relatively consistent between the sampling years.  They were not more prevalent in rough-bottom habitats.  This suggests a lower abundance, rather than fish hiding in the rocks, as the reason the bottom trawl seldom catches large cod.”

At the same time,

“scientists did find differences between the bottom longline and the bottom-trawl survey data for large white hake.  There was less overlap for white hake than for cod between the bottom trawl and bottom longline survey length distributions.  The bottom longline survey detected large white hake on rough-bottom habitats, which shows that longline gear can catch large groundfish not often caught by trawl gear.  This suggests that if large cod were present, the gear would capture them.”

Thus, yet another study had revealed that there are no longer significant numbers of large cod in the Gulf of Maine, despite some fishermen’s claims to the contrary.  We have reached a point where fishermen are running out of excuses to oppose any and all management measures needed to rebuild the Gulf of Maine cod stock, and must finally admit that the fish are facing a very serious threat.

For the cod haven’t merely moved on to “the next place.”  They’re gone.

And the sooner that everyone accepts that truth, the sooner everyone can work together in an effort to fix the problem.

 

 

STRIPED BASS AMENDMENT 7: IT'S TIME TO LEAN BACK, BREATHE, AND SAY THANKS

 Yesterday, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board finalized Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass.  It’s a good document.

That’s not how we expected things to turn out back in August 2020, when the Management Board put together a Work Group to chart the initial course of the new amendment.  At that time, there was a real drive to weaken the striped bass management program, reduce the target spawning stock biomass to allow a bigger annual kill.  There were efforts to change the goals and objectives of the management plan, to de-emphasize a healthy spawning stock, containing a good number of older, larger fish, in favor of a stock shaped by higher fishing mortality, dependent upon numbers of smaller, less productive female fish for its survival.

In the summer and fall of 2020, such ideas seemed to gain a lot of momentum, and resulted in a Public Information Document for Addendum 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass which elevated

“management stability, flexibility, and regulatory consistency”

above rebuilding and subsequently maintaining the health of the striped bass stock.

Stakeholders didn’t care for that.  They wanted a management program that would restore the overfished striped bass stock to health, prevent overfishing, and maintain the stock at sustainable levels over the long term.  When the time came to comment on the Public Information Document, more than 3,000 such stakeholders came out to tell the Management Board that they didn’t want to kill more striped bass.  Instead, they wanted the fish managed conservatively, to maximize abundance and the opportunity for every angler to encounter a few striped bass.  They wanted a sustainable fishery that they could pass on to future generations of anglers.

Every one of those stakeholders, who made their opinions clear, deserve thanks.  They took the time and made the effort to participate in webinar hearings and send in written comments.  They spoke to their state fishery managers, and their states’ representatives to the ASMFC.

And the state managers and other Management Board members listened.  They voted to remove changes to the goals and objectives from the first draft of Amendment 7.  They kept the 10-year rebuilding plan, the spawning stock biomass reference points, and the fishing mortality reference points intact, and removed them from further consideration.  

Over the course of a few meetings, they also added provisions to protect the 2015 year class (and later removed it, when scientists determined that such protections would do little for the bass).  They called for a low recruitment assumption to be used in the next rebuilding plan, and added a proposal to fast-track rebuilding, so that the stock might have a better chance to be rebuilt by 2029.

For doing those things, and more, many members of the Management Board also deserve our thanks.  We’re always quick to complain when they do the wrong things, but we tend to be slow to admit that, since May 2021, most—but not all—of the work that they did on Amendment 7 was right.

But if anyone thinks that the Management Board thinks up all of these things on their own, they don’t really understand how the process works.  While the Management Board may make the final decisions, most of the work occurs behind the scenes, where the Plan Development Team and Atlantic Striped Bass Technical Committee spend their time trying to perfect the various options that appeared in the evolving draft amendments. 

I listened in on a number of Plan Development Team meetings, and am very aware of how Emile Franke, the Fishery Management Plan Coordinator, shepherded the draft amendment through the process, and how the PDT as a whole weighed each option, repeatedly revised their wording, and tried to put together a document that was both comprehensive and comprehendible.  I’ve heard a lot of people complain that the Draft Amendment 7 was too long and confusing; all I can say to them is “You should have seen what it looked like before all of the editing took place.”

So yes, we should be thankful for the hard work of the Plan Development Team, and for Technical Committee who advised them.  Dr. Katie Drew, the ASMFC’s Stock Assessment Team Lead for striped bass and other species, was always available to the PDT and to the Management Board, providing objective advice on technical issues whenever the need arose.  Together, they took the suggestions made by the Management Board and forged them into the draft amendment that we commented on early this year.

That most recent round of comments attracted even more stakeholders than we saw last year, with well over 4,000 ultimately submitted.  With few exceptions, such comments strongly supported conservative management of the striped bass resource, with many of the proposals in the draft amendment receiving the support of more than 99% of such stakeholders’ support.

So once again, we ought to thank everyone who sent in a comment.  But some deserve special recognition.  The American Saltwater Guides Association, Backcountry Hunters and Anglers, the New York Coalition for Recreational Fishing, and the Massachusetts Striped Bass Association made a special effort to educate anglers on the draft amendment, and convince them to make their views known.

In the environmental community, the Chesapeake Bay Foundation was responsible for more than 2,000 letters received by the Management Board.  The Nature Conservancy and Wild Oceans also provided strong support for striped bass conservation.

And then there was what might have been the most remarkable comment letter that was sent in.  Written on the letterhead of Connecticut’s Attorney General, William Tong, it was signed not only by Mr. Tong, but also by Peter F. Neronha and Maura Healey, the Attorneys General of Rhode Island and Massachusetts, respectively.  I’ve done fisheries advocacy work for a very long time, and this may be the first time that I have seen three attorneys general comment on striped bass issues.  It was also the first time that I have seen public officials acknowledge what striped bass anglers have long believed:

“The striped bass is the flagship species of ASMFC, and public confidence in the Board’s ability to manage striped bass sustainably is at an all-time low.  Now is the time to take the actions needed to ensure that the public will enjoy a thriving striped bass resource, and a vibrant and economically valuable striped bass fishery, for generations to come.”:

Given its source, that is a letter that the Management Board could not prudently ignore.

Finally, we ought to save some of our thanks for Marty Gary from the Potomac River Fisheries Commission, who chairs the Management Board, for running an efficient and effective meeting.  In particular, he deserves recognition for how he handled the January Management Board meeting, when he solicited stakeholder comment on last-minute changes to the draft amendment, which might otherwise have gone unaddressed until the draft was released.  He didn’t have to take public comment in the middle of a Management Board meeting, but by going that extra mile, he certainly earned my respect.

Thanks to all of those folks, the final version of Amendment 7 retained what was good in the Management Plan, and augmented it with new measures intended to more quickly address overfished stocks and declining recruitment, rebuild the stock by 2029, and rein in abuses of conservation equivalency programs, which have long been the bane of effective bass management.

I’ll delve deeper into the nuts and bolts of Amendment 7 in a week or two; right now, I’m a little burned out from two and a half years of working with a lot of dedicated folks who want to see the striped bass stock thrive.  

An hour after yesterday’s meeting ended, I was speaking to a fishing club, telling them of the changes ahead.  This morning, time that I should have spent writing this blog was tied up in discussions of what happened yesterday, the many things that went right, the few things that went wrong, and what we’ll be facing tomorrow.

So for a couple of days, I want to stop talking and writing about striped bass, and just catch a couple of fish.  My boat went in the water two days ago, and it’s looking a little lonely.  With the Amendment 7 fight over, I want some time on the water to clear my head.

And to thank everyone who made this win possible.

MID-ATLANTIC SCIENTISTS PERPLEXED BY RECREATIONAL HARVEST CONTROL RULE

 Last Friday, a subcommittee created by the Mid-Atlantic Fishery Management Council’s Scientific and Statistical Committee met to consider the so-called "Harvest Control Rule" that is currently being considered by both the Council and by the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Program Policy Board.

I’ve written about the Harvest Control Rule before.  I’ve noted that, depending on how it is implemented, the Harvest Control Rule might not comply with the standards for fishery management measures established by the Magnuson-Stevens Fishery Conservation and Management Act.  I’ve also noted that important information needed to properly evaluate and implement the Harvest Control Rule is not yet available, making the Council’s and Policy Board’s apparent haste to implement it in time for the 2023 season appear to be extremely imprudent.

After listening to the scientists on the subcommittee discuss the various issues surrounding the Harvest Control Rule, I came away even more concerned than I was before Friday’s meeting began.

The problem is that the Harvest Control Rule is still very much a work in progress, not a fully-developed fishery management tool.  Dr. Lee Anderson, one of the scientists on the subcommittee, may have best described its current status when he noted that if he was peer-reviewing it for publication in a scientific journal, his response would be to

“reject and resubmit”

after more work had been done.  In his opinion,

“This is not a harvest control rule.  At best, it is a search procedure for a specification.”

In retrospect, that comment makes a lot of sense, because setting recreational specifications—size limits, bag limits, and seasons—is precisely the Harvest Control Rule’s purpose.  But even then, it’s not clear that the Harvest Control Rule is up to the job.  Dr. Anderson opined,

“I think that we should send it back”

and try to get a better explanation of how it works and how it will be used.

“I don’t think we should say anything but ‘Come back and do your homework.’”

When I began listening to the subcommittee meeting, I was hoping that the panel of scientists would say something to assuage my fears about the Harvest Control Rule’s inadequacies.  Instead, the panel discussion confirmed my many fears.

As I wrote in my comments to the Atlantic States Marine Fisheries Commission,

“My support for the no-action option does not necessarily reflect on the intrinsic merits of the various Harvest Control Rule approaches, but is instead based on the lack of information critical to the Harvest Control Rule debate, and to the implementation of any control rule that may be adopted, provided to members of the Interstate Fishery Management Program Policy Board (the “Policy Board”), the Summer Flounder, Scup, and Black Sea Bass Management Board (the “Management Board”), the Mid-Atlantic Fishery Management Council (the “Council”), and to stakeholders and members of the general public. 

 

“While the Draft Addenda go into great detail outlining how the various control rule options would calculate management measures, and provide some detail on how such options might impact anglers, they leave out the most important information of all:  How each control rule option might affect the long-term management and long-term health of the relevant fish stocks.

 

“Without such information, it is impossible to provide intelligent comment.” 

 

I wrote that as someone with undergraduate degrees in English and History, along with a degree in Law; I’m not a biologist, and have no formal training in the field, so it’s very possible that when I read the Harvest Control Rule proposal, and listened to various discussions on the topic, I missed or misunderstood important details.  So when someone--when more than one someone--with a doctorate in the relevant discipline voices concerns similar to mine, it only makes me more worried that the Council and Policy Board are pushing the project forward when it is still not at all ready for use.

Dr. Alexei Sharov, another subcommittee member, commented on the complexity of some versions of the Harvest Control Rule.  He acknowledged that

“It was difficult for me to read through them,”

and admitted that he had to read through some of the options several times before fully understanding how they were supposed to work.  

Such admission inevitably leads to the question of why and how such options could, in their present form, be released to the public with any expectation that the public could provide meaningful comment on the Harvest Control Rule.  I’ve been working on fisheries issues since the late 1970s, and have a pretty decent lay understanding of how things work, yet I was unable to fully evaluate the various proposals.

Although I did submit comments, I did so feeling that such submission was an exercise in futility; it seemed that putting the Harvest Control Rule out for public comment was little more than a bureaucratic exercise that let managers check off a needed box before they inevitably adopted the measure ahead of the 2023 season.

Dr. Sharov also noted that

“The proposed document is not considering at all the efficiency of the tools that we have,”

which are currently used to determine management measures.  Such remark was again similar to a question I raised in my comments on the Harvest Control Rule:  Why is it deemed to be superior to current management measures?”  

“Most of [the] goals [of the Harvest Control Rule] can and are being achieved under the current management program.

 

“Even such contentious issues as uncertainty in the recreational data can be addressed within the current management system, as demonstrated by the use of “Thompson Tau outlier analysis” to address uncertainty in recreational black sea bass data when establishing 2022 management measures… 

 

“The uncertainty inherent in the annual estimates of recreational catch, landings, and effort falls within the general category of “management uncertainty…” Such management uncertainty certainly exists in each of the summer flounder, scup, black sea bass, and bluefish fisheries, yet the monitoring committees responsible for recommending annual management measures have consistently refused to acknowledge it, and instead set the management uncertainty value at zero, the one value that everyone knows is wrong.

 

“By recognizing the existence of management uncertainty, and setting a recreational harvest target at an appropriate level below the recreational harvest limit, the Management Board and Council could create a buffer that would allow for management uncertainty, lead to more stable and predictable management measures, and significantly reduce incidents of “chasing the RHL,” while remaining within the current management structure.”

 

Hearing a similar concern voiced by a very experienced and knowledgeable fisheries scientist only increases my fear that the Harvest Control Rule has not been well thought out, and that a lot more thinking is needed before it replaces the current management regime.  

It also leads to continued worry that the Harvest Control Rule is being rushed into production not because it is a better way to manage recreational fisheries—although further analysis might well show that such is the case—but because it will solve certain “people problems” besetting fishery managers when they impose politically unpopular restrictions on elements of the recreational community.

While the political problems have generally been associated with the recreational black sea bass fishery, where a large biomass has attracted large numbers of anglers, who have regularly exceeded the fishing mortality rate that biologists have deemed appropriate, whatever Harvest Control Rule is picked will apply not only to that species, but also to summer flounder, bluefish, and scup.  That, too, may be a problem; Dr. Cynthia Jones observed that

“You would not pick the same rule for all of the species…all of these fisheries have different characteristics.”

Yet, the Harvest Control Rule proposed by the Council and Policy Board would do just that—take a one-size-fits-all approach to the management of all four species, without scientific analysis of whether such uniform approach was justified.

At one point in the discussion, Dr. Anderson made the seemingly scathing comment that

“I’m very concerned that if this [Harvest Control Rule] goes out, it is going to give the impression that there is science involved,”

a statement that should be enough to stop the process in its tracks, at least until sufficient science really is involved in the creation of both the Harvest Control Rule and the management measures that it produces.

The Council’s Scientific and Statistical Committee was originally charged by both the Council and the Policy Board to

“provide a qualitative evaluation, in time for final action at the June 2022 Council/Policy Board meeting, regarding the potential effect of each of the five primary alternatives in the Harvest Control Rule Addendum/Framework on the SSC’s assessment and application of risk and uncertainties in determining [acceptable biological catch].  The intent is to provide the Council and Policy Board with information to consider the tradeoffs among the different alternatives with respect to the relative risk of overfishing, increasing uncertainty, fishery stability, and the likelihood of reaching/remaining at [the biomass target] for each approach at different biomass levels (e.g., [when biomass is below target, but the stock is not overfished], the relative risk among alternatives is (highest to lowest) E>C>B>A>D.”

But at the conclusion of Friday’s meeting, when Dr. Tom Miller, who chairs the subcommittee, summed up what was had transpired over the preceding two hours, he noted that the subcommittee would not be able to comment on the tradeoffs between and relative merits of the various Harvest Control Rule options, without understanding the specifications that each option might produce.  He also expressed misgivings that some of the options could introduce even more uncertainty into the management process.

Given that some of the top fisheries professionals in the mid-Atlantic region were unable to determine the relative merits of the Harvest Control Rule options, asking the public to comment on the same options, and express opinions on which would be preferable, seems to have been both unreasonable and unwise.

It would seem equally unreasonable and unwise to implement the Harvest Control Rule, for even a single species, until enough information is available for the subcommittee to form a reasoned opinion as to the options’ merits.

And that’s merely the problems on the scientific side.  Some serious legal issues also exist.

As I’ve noted before, the Magnuson-Stevens Fishery Conservation and Management Act set a number of minimum standards for fishery conservation and management measures.  One is that

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.”

Federal appellate courts have interpreted that to mean that fishery management measures must have at least a 50 percent probability of preventing overfishing.

The law requires that regional fishery management councils

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee…”

Guidelines issued by the National Marine Fisheries Service, pursuant to Magnuson-Stevens, make it clear that such “fishing level recommendations” refer to the acceptable biological catch, which is calculated by reducing the overfishing limit by an amount that accounts for any scientific uncertainty.

Finally, Magnuson-Stevens requires that

“Conservation and management measures shall be based on the best scientific information available.”

Yet comments made by various parties to last Fridays meeting provide reason to doubt that the Harvest Control Rule, at least in some of its possible configurations, would satisfy any of those legal requirements.

For example, when asked by Dr. Miller how that Harvest Control Rule would constrain recreational landings to the Acceptable Biological Catch, Julia Beatty, who is spearheading the Fishery Management Action Team working on the project, said that she couldn’t necessarily definitively say, “Yes, will not exceed ABC.”  

She noted that the Harvest Control Rule’s emphasis was not on the Acceptable Biological Catch, but on not exceeding the Overfishing Limit.  In her explanation, Ms. Beatty said that in justifying recreational management measures under the Harvest Control Rule, the Council and NMFS were going to have to make the argument that the measures flowing from such rule were appropriate for any given level of Acceptable Biological Catch.

Ms. Beatty later said that, pursuant to the Harvest Control Rule, management measures might not be “directly connected” to the recreational harvest limit, and admitted that, by adopting the Harvest Control Rule, the Council and NMFS were

“not really proposing to tie [management measures] directly back to a change in the [Acceptable Biological Catch] or something like that.”

She also stated that under the current management approach, the Recreational Harvest Limit and Annual Catch limit “scale up and down,” but that under the Harvest Control Rule, management

“measures won’t change with changes in [the Annual Catch Limit].”

Such comments raise more than one legal issue.  If fishery managers might not be able to “definitively say” that management measures derived from the Harvest Control Rule won’t exceed the Acceptable Biological Catch, will they be able to state in good faith that such management measures have at least a 50% probability of preventing overfishing?  The answer to that question, and so to the Harvest Control Rule’s legal adequacy, is not at all clear.

Also, since Ms. Beatty stated that the Harvest Control Rule is focused on the Overfishing Limit, and not on the Acceptable Biological Catch, and that management measures developed pursuant to the Harvest Control Rule “won’t change with changes in [the Annual Catch Limit],” would such measures comply with Magnuson-Stevens’ requirement that regional fishery management councils, including the Mid-Atlantic Fishery Management Council, “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee?”

While the Council will still establish an Annual Catch Limit, should the Harvest Control Rule be adopted, any such catch limit, as well as the Acceptable Biological Catch on which such limit is based, would seem to be little more than a sham if the Council’s management measures aren’t designed to constrain recreational landings at or below such level.

I may not be a biologist, but I am an attorney, and have been one for more than forty years.  I can say with absolute conviction that I’m glad that it will be someone else, and not me, who might have to defend such management measures-- which seem contrary to the clear intent of Congress--should they be challenged in court.

Finally, there is the question of whether the Harvest Control Rule, as currently proposed and given the information currently available, can be considered “the best scientific information available,” and thus a suitable tool for generating fishery management measures. 

The current management approach has its flaws, but it has generally managed to prevent overfishing of the four relevant stocks over the past twenty years (bluefish arguably present an exception to that statement but, given that that overfishing in the bluefish fishery is attributable to inaccurate recreational catch and landings data which severely understated the level of recreational removals and the impact of anglers on the bluefish stock, and not on the management approach itself, I believe that such recreational overfishing does not significantly impeach the existing management process).

On the other hand, it was clear from last Friday’s discussion that the scientists weren’t able to determine precisely how the Harvest Control Rule might impact fish stocks.  Perhaps it would work, but Dr. Paul Rago, the Chair of the full Scientific and Statistical Committee, also noted that the Harvest Control Rule

“could be destabilizing”

and lead to anglers overshooting the target fishing mortality rate.  As noted above, other biologists expressed concern that the many variables considered in some versions of the Harvest Control Rule could introduce additional uncertainty into the management process.

Thus, one could easily argue that the current approach to setting recreational management measures is based on better science than the Harvest Control Rule.

Whether viewed through the lens of science or law, the Harvest Control Rule looks like an unfinished project.  It must be further refined and developed before being used to manage some of the Mid-Atlantic's most important fisheries.

Unfortunately, the Council, NMFS, and the Policy Board seem intent on rushing the Harvest Control Rule's adoption, whether or not it is ripe for implementation.  Despite the issues that were aired at last Friday’s meeting, there is no indication that such intent has changed.

Adam Nowalsky, a Council member from New Jersey and that state’s Legislative Proxy to the Policy Board attempted to defend implementation.  He noted that public comment on the Harvest Control Rule has already been solicited, and seemed to suggest that it was too late to refine the Harvest Control Rule and seek public comment again.  But when a panel of very experienced, PhD-level fishery scientists can’t figure out exactly how it works, or how its various incarnations might affect the health of fish stocks, it’s unreasonable to expect the public to provide informed and meaningful comment on the same issues, or to rely on any public comment that may have been made.

Seeking more public input, after such public has been fully and properly informed on how the Harvest Control Rule will affect managed fishery resources, would seem to be the only logical way to proceed.

But that is a decision for the Council and Policy Board, not the subcommittee, which will now prepare a report on the Harvest Control Rule for the full Scientific and Statistical Committee to consider, when it next meets at 12:30 p.m. on Tuesday, May 10.  The Harvest Control Rule will be the first topic on the Committee agenda.  On Friday, Dr. Miller, the subcommittee chair, said that such report would be based on three core points:

·        The Harvest Control Rule will have no impact on establishing the Acceptable Biological Catch or Annual Catch Limit, which are backward-looking actions based on the most recent stock assessment, while whatever management measures are set will impact future fishery performance.

·        It is “very, very difficult” for the Scientific and Statistical Committee to comment on the relative merits of the various proposed Harvest Control Rule structures, given the lack of specificity of what the resulting management measures might look like.

·        There is significant uncertainty surrounding how the “binning process” used in the Harvest Control Rule would feed back into the ability to control recreational catch; there are concerns that use of the Harvest Control Rule could cause more variability in management measures if recreational catch and landings aren’t sampled at appropriate intervals.

As mentioned earlier, the report will not attempt to respond to the Council’s request for a risk analysis of the various Harvest Control Rule proposals, because there is insufficient information available to make such analysis possible.

The Council, NMFS, and the Policy Board may want to implement the Harvest Control Rule for the 2023 fishing season, but the comments made at last Friday’s meeting cast severe doubt on the wisdom of such an action. 

A fully thought out and properly designed incarnation of the Harvest Control Rule may, in fact, prove to be an important fishery management tool, but based on the comments at last Friday’s meeting, “fully thought out” and “properly designed” do not describe the Harvest Control Rule's current state.  

I suspect that when the Scientific and Statistical Committee meet on May 10^th, they may use different words, but their meaning will be much the same.

STRIPED BASS AMENDMENT 7: STAKEHOLDERS DEMAND CONSERVATION

 The Atlantic States Marine Fisheries Commission has released a compilation of all the stakeholder comments that it received on Draft Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.  That compilation shows near-unanimous support for strong conservation measures. 

The ASMFC received a total of 4,689 written comments, which consisted of 1,149 individual comments, 3,397 form letters, and letters from 51 organizations; it was noted that, in addition to such individual letters and emails, 92 businesses and angling organizations signed on to one of the latter organizational comment letters. 

Form letters are always a controversial topic.  On one side of the issue sit those who feel that form letters represent people who care about the issues being debated, but lack the time and/or ability to compose their own letter; they argue that form letters should be given the same weight as any other comments.  On the other side sit those who believe that form letters are often sent by people who give little thought or effort to the issues, but merely cut-and-paste someone else’s arguments, and thus should not carry the same weight as individually prepared comments.  The ASMFC took a middle road with respect to the Amendment 7 comments, deciding that

“Form letters (more than 3 of the same comment) include comments stating support for an organization’s comments; however, if the commenter provided additional comments/rationale related to management beyond the organizations’ or letters’ comments, then it was considered an individual comment.”

Judging by the letters that I’ve read so far (I’m on page 645), it appears that the ASMFC is applying that definition very liberally and, when there is any room for doubt, placing comments into the “individual” rather than “form letter” category.

With that in mind, 25 different form letters were received.  Of those, only four accounted for more than 100 comments.  By far the largest of those was the letter provided by the Chesapeake Bay Foundation, which was used by 2,461 individuals.

Of all the form letters provided by fishing-related organizations, the greatest response came from supporters of Backcountry Hunters and Anglers, a relatively new, largely volunteer-drive national organization dedicated to science-based management of public lands and public resources; the ASMFC received 251 copies of the form letter that BHA provided.  Despite its sophisticated public messaging infrastructure and years of effort to engage anglers, the American Sportfishing Association, which represents the fishing tackle industry, saw only 217 stakeholders support its positions, while a letter of uncertain provenance, which seems to have originated in the Massachusetts surfcasting community, garnered 141 responses.

Both the tabulations of stakeholder response and the individual letters make interesting reading, although given that they run to more than 2,000 pages, I freely admit that I haven’t yet read them all.  To provide a proper background for some of then individual letters, it probably makes sense to first look at the overall stakeholder response to the individual issues.

Management triggers—the message is “Do not delay”

Stakeholders were very close to unanimous in their opposition to any changes to management triggers, if such changes would permit the Atlantic Striped Bass Management Board to delay taking action in response to threats to the striped bass stock.

With respect to the fishing mortality triggers, 4,124 comments (99.4%) supported the current requirement that, if a fishing mortality trigger is tripped, managers must reduce such mortality to or below target within one year; such support included 642 individuals (98.6%), 3,357 form letters (99.8%), and 33 of the organizations (76.7%). 

Only 25 comments supported a two-year reduction period, including comments sent in by the Cape Cod Charter Boat Association, the Massachusetts-based Carver Sportsmen’s Club, the New Jersey-based Hi-Mar Striper Club, the Massachusetts Striped Bass Association, the Northeast Charterboat Captains’ Association, the Recreational Fishing Alliance, the R.I. Party and Charter Boat Association, and the Stellwagen Bank Charter Boat Association.  The Twin Rivers Waterman’s Association and Virginia Waterman’s Association submitted a joint letter which did not specify preferred options, but did indicate support for “management stability,” allowing existing management measures time to work before new measures are adopted, and “deferred management action,” and so can probably be placed in the same category.

The split between the overwhelming majority of stakeholders and what might be deemed the traditional for-hire fleet, which is made up primarily of “six-pack” boats and still uses dead fish as the primary gauge of a successful day, is a theme that continues throughout many of the comments.

A related issue, whether management action should be triggered when overfishing occurs in just one year, as is currently the case, or whether no action need be taken until a two-year average of fishing mortality exceeds the threshold, saw similar support for the status quo, with 4,093 comments (99.6%) in favor of taking action as soon as overfishing occurs; such support included 610 individuals (99.2%), 3,357 form letters (99.8%), and 34 organizations (85%). 

With respect to the spawning stock biomass triggers, the ASMFC tabulation noted that

“Many comments noted the [Atlantic Striped Bass Management] Board should have designated a formal rebuilding plan more quickly after the last assessment, and so would support a 2-year rebuilding plan deadline (A-2)”

Thus, it should come as no surprise that 4,101 comments (99.7%), including 626 individuals (99.7%), 3,348 form letters (99.8%), and 35 organizations (87.5%).  Organizational opposition was limited to the Recreational Fishing Alliance and to the Cape Cod Charter Boat Association, Hi-Mar Striper Club, Northeast Charterboat Captains’ Association and Stellwagen Bank Charter Boat Association, all of which conformed their comments to the RFA position and, in the case of the latter two organizations, placed their names on comment letters that were essentially identical to that submitted by the RFA.

There was also near-unanimous support for amending the recruitment trigger, but here, the response was more nuanced.  4,077 comments (99.7%) supported a more sensitive recruitment trigger than the one currently in place, with 1,427 (35% of those supporting a new trigger) encouraging the ASMFC to adopt a moderately sensitive trigger, and 2,650 (65%) supporting a highly sensitive trigger.  However, such preferences differed by comment type; 456 individuals (75.6%) and 23 organizations (67.6%) prefer the moderately sensitive recruitment trigger, while 2,492 of the form letters (74.4%) preferred the highly-sensitive trigger.

There was far more unanimity with regard to what the Management Board needs to do if the recruitment trigger is tripped.  Currently, it is up to the Management Board to decide whether to take an action; given the Management Board’s penchant for delay, most stakeholders justifiably believe that if the Management Board is given an excuse to do nothing, than nothing is exactly what it will do.  Thus, 4,070 comments (99.6%) believe that the recruitment trigger should be amended to compel the Management Board to act when the trigger is tripped.  Of those 4,070 comments, 4,068 (99.95%) would require immediate action, while two organizations, the Center for Sportfishing Policy and the American Sportfishing Association, would require action, but add some qualifications as to what such response should be.

Stakeholder comments on the final management trigger issue, whether the Management Board should be able to defer action under certain circumstances if a management trigger is tripped, received a similarly lopsided response.  4,080 comments (99.4%), including 612 individuals (99%), 3,341 form letters (99.6%), and 35 organizations (83.3%) oppose deferring management action under any circumstances. As the ASMFC’s compilation noted,

“Commenters noted the need for the Board to respond immediately to management triggers to retain accountable and not delay action.”

Recreational release mortality

The structure of the recreational release mortality section of the draft amendment makes it somewhat more difficult to determine the percent of support foir each proposal.  The section asked commenters to pick either Option A, which represented the status quo, or to pick among a number of actions, which were only related to one another in that they were intended to reduce the release mortality rate. 

The ASMFC’s compilation of comments only notes support for each of such actions, and does not report explicit opposition; since commenters can and often do refrain from commenting on individual actions, absence of support does not necessarily imply opposition (for example, I did not comment on Option D, Outreach and Education, because I have doubts about the value of such efforts; that doesn’t mean that I oppose outreach efforts, just that I believe that states’ fishery management dollars are better spent elsewhere, particularly on science and enforcement, and choose not to burden state managers with that particular unfunded mandate).

Thus, in reporting on release mortality options, all percentages will reflect the percentage of all comments received by the ASMFC, a figure which probably does not reflect the number of comments actually addressing each particular issue.  I apologize for taking such an approach, but without having the opposition numbers, it’s the best that I can do.

Proposals to impose seasonal closures that would reduce recreational fishing effort and so, in theory, reduce fishing mortality were probably the most controversial.  Restrictions on targeting striped bass were viewed by many as unenforceable, as anglers targeting bass could always claim that they were fishing for bluefish, catfish, white perch or some other species, and so evade the law’s intent.  

Restrictions on harvest in spawning areas received more support, but not necessarily from those who fished in such areas; that was particularly true of New York anglers who fished in the Hudson River.  That’s reflected in the comments.  

Only 102 comments (2.2% of all comments received) supported a 2-week no-targeting closure at the heart of each state’s bass season; such closure was unpopular across the board, receiving the support of just 25 individuals (2.2%), 73 form letters (2.1%), and 4 organizations (7.8%).  A 2-week no-targeting closure limited to the spawning grounds (perhaps easier to support, given that only a handful of states host spawning grounds), received the support of 434 commenters (9.3%), including 123 individuals (10.7%), 300 form letters (8.8%), and 11 organizations (21.6%).  

Support was much stronger for prohibiting harvest in the spawning areas between January and April, which was favored by 2,924 commenters.  Such support, however, was skewed by the form letters received from supporters of the Chesapeake Bay Foundation, with the prohibition supported by just 136 individuals (11.8%), but also by 2,775 form letters (81.7%), and 13 organizations (25.5%).

The Foundation didn’t take a position on banning the use of gaffs or other lethal devices to land striped bass, nor on the requirement that all bass caught on non-approved gear (for practical purposes, bait fished on J-hooks) be released.  That, too, skewed the results, which show 1,584 comments (33.8%) supporting a gaff ban, including 582 individuals (50.6%) and 36 organizations (70.6%), a majority of both, but only 864 form letters (25.4%).  Mandatory release of fish caught on unapproved gear received similar, although very slightly less, support.

Rebuilding the striped bass stock

Near-unanimity again reigned when the comments turned to issues related to rebuilding the stock.

4,062 comments (99.7%) supported managers using a low-recruitment assumption when preparing the rebuilding plan, to reflect recent striped bass recruitment trends.  Such support extended to all comment types, including comments by 585 individuals (99.2%), 3,341 form letters (99.8%), and 34 organizations (97.1%).  The only organization submitting comments supporting the standard recruitment assumption was R.I. Party and Charter Boat Association.

A proposal that would allow the Management Board to fast-track the rebuilding plan, and move forward without going through the customary, but time consuming, addendum process involving public hearings, earned near-identical support, eliciting 4,047 favorable comments (99.7%), including 588 from individuals (99%), 3,333 in form letters (99.8%), and 34 from organizations (94.4%).  Among the organizations, the R.I. Party and Charter Boat Association was, once again, an outlier, but this time was joined in its dissent by the Maryland Charter Boat Association.

It's probably also worthwhile to note that there were some organizations, led by the Recreational Fishing Alliance, which chose to make no specific recommendations on the rebuilding comments, but instead seemed to question the wisdom of rebuilding at all.  The RFA comments noted that

“RFA is very concerned about the ability to rebuild striped bass biomass to the SSB target by 2029.  It’s important to recognize two key points.  First, in the history of this fishery, female SSB has never reached the rebuilding target, even in 2003, when the fishery reached the highest biomass value in recorded history.  This inability to meet the current rebuilding target clearly demonstrates that then biological reference points including the rebuilding target are not realistic.  Second, in recent years, the striped bass population has been less productive than it was when the rebuilding targets were established.  Meaning, fishing mortality is having less direct impact on rebuilding progress observed in the stock.  It seems highly unlikely that the stock will be rebuilt by 2029.  But since the ASMFC does not control environmental factors and still uses a fixed natural mortality value, the only recourse they can take when rebuilding lags is drastic cuts to fishing regulations.  Perhaps a question that needs to be asked in Amendment 7 is if we can’t rebuild by 2029 without imposing massive restrictions on the fishing community, should we be happy with the current status of the stock and just try to manage F.  RFA has a hard time supporting any of the rebuilding options in the document because we feel we are being set up for failure with this fishery.  We believe that it is imperative that the biological reference points are revised in the next benchmark assessment 2025 before selecting a management response.”

While such comments are completely contrary to the beliefs of almost every stakeholder who expressed an opinion, they were repeated, more or less verbatim, in the comments of the Cape Cod Charter Boat Association, the Northeast Charterboat Captains’ Association, and the Stellwagen Bank Charter Boat Association.  

Should rebuilding the stock by the 2029 deadline require very restrictive management measures, as I suspect will be the case, we should expect to see such comments repeated, both at the ASMFC and in various media outlets.

Conservation equivalency

Conservation equivalency may be the most controversial issue addressed in the draft amendment.  The ASMFC compilation reported that

“Those in favor of restricting CE (B-E) noted concerns about how CE has been used in the past and the high uncertainty of implementing alternative measures, especially when the stock is in poor condition.  Some comments suggest removing CE entirely from the management plan.”

Such concerns were addressed in a number of comment letters.  The Nature Conservancy noted that

“state-by-state Conservation Equivalency provisions have twice been used in ways that undercut widely supported coast-wide stock maintenance and rebuilding objectives for the purpose of achieving very short-term increases in the allowable catch for certain states.”

Another conservation organization, Wild Oceans, stated that

“Conservation Equivalency (CE), as currently applied to the management plan for striped bass, allows states and jurisdictions to sidestep conservation measures necessary for ending overfishing and rebuilding the stock.”

Perhaps the most notable comment came in a letter signed by the Attorneys General of Connecticut, Rhode Island, and Massachusetts, which said

“Perhaps the most critical component of this draft amendment is its suite of proposals to rein in abuse of Management Program Equivalency, also known as Conservation Equivalency (CE).  As an advocate for the residents of our states, we support such proposals, which are intended to stem some states’ systematic abuse of the CE process, which effectively shifts the conservation burden from such states onto the shoulders of anglers in our states and other, more conservation-oriented jurisdictions.”

Anglers expressed similar sentiments, saying things such as

“I don’t see how Conservation Equivalency has done anything to help the fishery recover.  It gives too few people the opportunity to steer the whole program to whatever they deem appropriate.”

“Conservation Equivalency is the single most important issue in Amendment 7.  It has also likely been the biggest hurdle to striped bass abundance in the time period since the end of the moratorium.  Conservation Equivalency frankly flies in the face of the spirit of interstate management of a migratory species…Perhaps never in the history of fisheries management has a tool been so abused…”

And

“Conservation Equivalency is a legitimate cancer to effective striped bass management…To me it was clear that Conservation Equivalency ensured the failure of the new slot limit that was recently proposed under Amendment 6—dropping the probability for rebuilding to occur below 50%...”

Given such sentiments, it’s probably not surprising that only 52 comments (1.3%), provided by 11 individuals (1.7%), in 33 form letters (1%), and by 8 organizations (19%) supported continuing the use of conservation equivalency in its current form, while 4,104 comments supported prohibiting its use when the stock was in a sub-optimal condition.  Of those 4,014 commenters, 4,101 (99.9%) felt that conservation equivalency should not be used when the stock is overfished, 6 (0.1%) would ban its use when spawning stock biomass was below its target level, and 426 (10.4%) would prohibit CE when overfishing is occurring (multiple options were chosen by some commenters).

There was also strong sentiment for establishing standards for the data underlying conservation equivalency although, because the Chesapeake Bay Foundation took no position on the issue, the number of responses was substantially less.  Nonetheless, of the 1,561 comments addressing the issue, 1,558 (99.8%) opined that the percent standard error of such data should not exceed 30. 

1,567 comments also supported a proposal that would require states who elected to take advantage of conservation equivalency to include an “uncertainty buffer” in their calculations, to account for the lower precision of state-level data.  Of those 1,567 comments, 225 (14.4%) supported a buffer of 10%, 1,144 (73%) supported a buffer of 25%, and 168 (10.7%) supported a buffer of 50%.

Finally, 1,332 comments addressed the question of how conservation equivalency should be defined.  Of those, 1,328 (99.7%) believed that a state’s conservation equivalency measures should achieve the same reduction that the ASMFC’s standard coastwide measures would have achieved in that particular state; the minority preferred that a state only be required to achieve the overall coastwide reduction. 

Once again, the Attorneys General’s letter made one of the most salient points on the issue:

“In addition, we support sub-option E2, which requires that state CE proposals achieve the same quantified level of conservation in the relevant state as the standard management measures adopted by the Board.  In doing so, we note that the alternative, sub-option E1, fails to comply with the Interstate Fishery Management Program Charter’s requirement for CE programs, that such programs ‘achieve the same quantified level of conservation for the resource under management.’  As Draft Amendment 7 itself agrees, sub-option E1 may provide a lesser level of conservation for the striped bass resource, and so undercut the success of management measures.”

So what does it mean?

I have been involved in fisheries management issues since the striped bass stock began to collapse in the late 1970s, and I don’t think that I’ve ever before seen the sort of unanimous agreement on needed management measures that I’m seeing in the Draft Amendment 7 comments where, at least on the major issues, over 99% of the comments support a single option.  Not even last year’s comments on the Public Information Document for Amendment 7 showed such a degree of uniformity.

Although past experiences have led many stakeholders to become wary of the Management Board, and question its receptivity to public comment, I have to believe that the Management Board is going to respond to such a clear statement of stakeholder opinion.  I feel that way for a number of reasons.

First, and perhaps most important was the diverse array of individuals and organizations that came out to speak on behalf of the striped bass.  There were the usual anglers and fishing clubs, but there were also sportsmen’s groups that are relative newcomers to striped bass issues, including Backcountry Hunters and Anglers and the New York State Conservation Council.  There were conservation organizations such as the Chesapeake Bay Foundation, Kennebunkport Conservation Trust, Native Fish Coalition, Save the Bay, The Nature Conservancy, and Wild Oceans.  There were angling industry-associated groups, including the Center for Sportfishing Policy, American Sportfishing Association, Coastal Conservation Association, Congressional Sportsmen’s Foundation, and Theodore Roosevelt Conservation Partnership.  There were the Maine Association of Charter Boat Captains and the American Saltwater Guides Association, representing the forward-looking members of the for-hire fleet, and the 90-plus signatories to the Guides’ Association’s comment letter, which included a host of companies that are well-known to anglers.

Perhaps most notable of all was the letter sent by the Attorneys General of Connecticut, Rhode Island, and Massachusetts.  The ASMFC has long been the realm of state fishery managers, who must look out for the interests of their state’s fishermen and fishery resources.  But attorneys general play a very different role; they, too, are charged with protecting the interests of the citizens of their states, but they don’t do so by sitting around a table, debating the data and cutting deals.  Attorneys general’s job is to assure that their states' and their state residents' legal interests are protected, and when they sit down at a table, they do so with those legal interest in mind.  That brings an entirely new dimension to the striped bass debate.

The Management Board ought to keep that in mind if any of them are thinking about ignoring the public’s will, and trying to move Amendment 7 in an unwanted direction.

The outliers

The only outliers in the Amendment 7 debate appear to be the harvest-oriented members of the for-hire fleet who, in this third decade of the 21^st Century, are still trying to shape striped bass management to fit a 1970s paradigm.  But the times are not merely changing; they changed a long time ago.  

Over the past few years, 2018-2021, the for-hire fishery was responsible for less than 2% of all directed striped bass trips, and many of those trips were undoubtedly taken by anglers fishing with the new generation of captains who understand that the future of their businesses depends on having an abundance of bass in the water for their clients to encounter and enjoy, and not merely on stacking dead fish in a cooler.

When the Recreational Fishing Alliance and its allied organizations call for reducing the biomass target, a goal rejected by 99.6% of the stakeholders who commented on the Public Information Document a year ago, they only demonstrate how out of touch they are with the current generation of anglers. 

The R.I. Party and Charter Boat Association demonstrates a similar disconnect when it states that

“we feel a strong message needs needs to be included in the objectives that recognizes a need to preserve the historic value of Striped Bass as a food fish.  According to recreational catch data, a significant portion of the current Striped Bass fishery is a recreational catch and release type fishery.  Recent rebuilding efforts, age structure of the stock, and social changes has [sic] shifted the historic food fishery towards a catch and release fishery, but we feel the folks who wish to fish for striped bass for a meal and those folks who wish to purchase striped bass at a market should not be forgotten.  We support management that increases the level of harvested Striped Bass and reducing the level of discarded Striped Bass from current levels..

“We continue to oppose managing this species for abundance, at the request of and benefit to a portion of the recreational fishery.”

But, again, the overwhelming majority of stakeholder comment disagrees.  Time only moves forward, and changing angler attitudes have “shifted the historic food fishery towards an catch and release fishery.”   Richard Nixon is no longer President.  Try as they might, no one can turn the clock back to 1972.  Killing fish is no longer as important to anglers as it was 50 years ago.

The dogs that didn’t bark

Another thing that was striking about the comments was not who took a position on Amendment 7, but who didn’t.

I don’t pretend to know all of the organizations with an interest in striped bass, but I’m familiar with just about all of the groups in the upper mid-Atlantic, and what I find striking is how many of the organizations that usually provide conservation-averse comments have not, on this occasion, provided any comments at all.

Here in New York, we have some baymen’s organizations that are usually quite active with regard to fishery management issues.  As far as I can tell, none of them provided comment.

We also have a few organizations that represent the for-hire industry.  Some have been around for quite a long time,  while others are newer, but they can usually be depended upon  to show up at hearings and/or provide written comment on fishery issues, particularly those involving striped bass.  All have been strangely quiet this time.

I note the same thing down in New Jersey.  Boatmen’s organizations have not made formal comment.  The Jersey Coast Anglers Association, which has been politically active for many decades and can usually be counted on to address any proposal that impacts New Jersey’s fisheries, is not listed on the ASMFC’s list of commenting organizations.

I’m not sure what to make of such absence.

Maybe people have looked around and noticed an absence of bass, and decided that opposing conservation measures is contrary to their own interests.  I’d like to believe that, but at least in a few cases, I doubt that is so.

Maybe there’s some disagreement among organizations' members, with some opposing striped bass conservation, and some supporting it, leading to an impasse and a lack of the consensus needed to produce a set of comments.  In some cases, I think that may be true, especially in organizations ripe for generational conflict, where an older, less conservation-oriented leadership is coming into conflict with younger and more enlightened members.

Maybe some people are just realizing that this is a fight they can’t win, which is something that I hope is true.

But whatever the cause, I can only take some groups’ failure to comment as a positive sign.

And, finally, thanks

I’m looking forward to next Wednesday’s meeting, hoping that Amendment 7 will turn out the right way.  But however things turn out, I have to thank Emilie Franke, the ASMFC’s fishery management coordinator, for the work  that she’s done for striped bass.

As a new ASMFC staffer, she got thrown into the striped bass fire early last year, just as the Public Information Document was being finalized.  With no previous experience in the role, she had to run the public hearings—on  webinar, back then—tabulate all the comments, present them to the Management Board, and then take the Management Board’s direction back to the Plan Development Team.

At that point, the PDT had to turn the input provided by the Management Board, Technical Committee, and public comment into a comprehensible document fit for public release and public comment.  It was a very tough job, but after sitting in on many PDT meetings, I can report that she and the rest of the PDT pulled it off with aplomb.

After that, there was a new round of hearings, some in person.  As always at such events, there were the usual scattering of boors, blowhards, and buffoons who mix in with the respectable folks and make the hearings a bit of a trial for all concerned, but Ms. Franke handled them all with professionalism and grace, while providing a clear introduction to the draft amendment to everyone who had an honest desire to understand its provisions.

Now, we’re in the final days of the debate.  However that debate ends, we should all thank Ms. Franke for helping to get us this far.