Virginia files an appeal, because apparently, 80% of a public resource is not enough

By Capt. John McMurray

Last November, the ASMFC Menhaden Board met with the intention of finalizing Amendment 3 to the Atlantic Menhaden Fishery Management Plan.

We wrote about the outcome here: With Menhaden, Here’s What Went Down. But the long and short of it is that while public comment was historically high and very clearly in favor of managing menhaden as a prey species, instead of merely managing harvest, the board decided to kick the can down the road and failed to adopt an interim ecosystem management rule.

That said, the long-awaited menhaden-specific “ecosystem reference points” are expected within the next two years. Such reference points will allow the Commission to see and understand the tradeoffs between leaving fish in the water vs. their extraction. But of course, hard choices will still need to be made. (Note: We’ll get back to this).

In the meantime, despite an entire coast that had benefited from a menhaden resurgence in the form of whales, striped bass and other predators, and a general public that clearly didn’t want to see more increases in landings, the board voted to increase the menhaden quota another 8%, having made 10% and 6.5% increases in prior years.

Yes, it was disheartening, and most of us expect a decline in coastal menhaden abundance as a result, but there were, of course, reasons.

State by State Allocation

While most of the public was focused on ecosystem management of menhaden, a big part of Amendment 3 was state reallocation of the menhaden resource.

That’s because one state (Virginia), the last state with a “reduction industry” (one large company that scoops up hundreds of millions of pounds of the fish, grinds it up, boils it down and sells it as fish-oil, fish-meal and other products), claimed 80% of the quota due to landings history, while the rest of the coast, which has become increasingly dependent on menhaden to supply the bait industry (mostly for lobster), literally got scraps. States like New York, with small-scale but historically important menhaden fisheries, ended up with miniscule fractions of a percent of the overall quota.

The board, after much debate, sought to correct this by giving each state a “fixed minimum” quota. In other words, instead of solely using a state’s landings history, which was difficult to impossible as most states didn’t have complete records, each state would get a fixed minimum percentage. The remainder of the total allowable catch would be then divided among the states according to their history, as had previously been the case.

While there was much debate around what that percentage would be, in the end the board decided on .5%. While 1% was discussed, and .75% was actually voted on, the board came back around to .5% because with the 8% increase in quota, the states’ needs could be met without taking quota away from Virginia’s “rightful” 80%. (note: sarcasm)

The point here is that the Menhaden Board went to great pains to leave Virginia and its large-scale menhaden-reduction industry unaffected by the quota distribution. Seriously… it went out of its way, made unusual concessions, and generally screwed the recreational fishing public who wants/needs menhaden in the water to prosecute successful fisheries for things like striped bass, by increasing harvest by 8%, all so Virginia could remain whole.

Frankly, what we would have liked to have seen done, instead of increasing harvest 8%, was just take the darn quota from the state that has an inequitable share of the resource in the first place. But, of course, politics sometimes prevents the Commission from doing the right thing.

Chesapeake Bay Reduction Fishery Cap

Lastly, at the meeting, the board voted to reduce the amount of menhaden that the reduction fishery could remove from Chesapeake Bay, although such “reduction” merely capped Bay harvest at recentlevels.

Over a decade ago the Commission set the Chesapeake Bay Reduction Fishery Cap (“Bay Cap”) at a whopping 109,020 metric tons. A limited roll-over of unused quota from one year to another was permitted, meaning that the maximum that could be harvested in a given year from the Bay was 122,740 metric tons, which of course left the door open for a crazy-huge amount of forage fish being removed from a regionally specific and biologically important area.

With a 20% reduction in quota that took place in 2012, that cap was reduced to 87,216 metric tons. Still, way too high. Regardless, industry never came close to approaching it.

At the November meeting, simply as a precautionary measure to avoid any escalation of harvest and a subsequent, almost inevitable, localized depletion scenario, the board voted to reduce the Bay Cap to an average of the last five years, with no rollover. 51k metric tons to be exact.

Yes, that’s quite a reduction from the 87k metric ton cap, and sure it was lauded by ENGOs and the angling community as a big win. But the reality is that in actual practice, it is unlikely to affect the reduction industry at all. Because, well, that’s pretty much what they were catching in the first place. But yes, it was indeed a critical win, because while it does little to constrain industry right now, it does prevent a rapid increase, which some argue is inevitable.

Virginia’s Letter of Appeal

While the overall perception from, well, just about everyone, was that the general public, the conservation community and certainly anglers got the short end of the stick during the November meeting, while the menhaden reduction industry made out quite well… Virginia feels like it didn’t get enough.

Late in December, the state sent a letter to the Commission appealing the decisions made on Amendment 3 during the November meeting. (note: you can find the letter on page 40).

For one, they feel like that 8% increase (from 200,000 metric tons to 216,000 metric tons (mt)) wasn’t enough. They are insisting on 220,000 mt, arguing that the science allows for such an increase.

Yes, a recent single-species stock assessment does say we could have such increase, and still not technically be overfishing. But we should be very clear here that this is a single species stock assessment and it does not account for any predator/prey interactions.

At any rate, there’s no mandate that we know of requiring the Commission to allow the max amount of fish to be killed. Regardless, the board considered/discussed and voted on such a 220,000 mt quota, and the motion failed by a wide margin. So, for sure, there are no grounds to remand or revisit that decision.

Next, the letter argues that the decision to use such a “fixed minimum” allocation system was “unfair” to Virginia, as they won’t get a chance to enjoy the full benefits of the increase. Well… As I understood it, one of the only reasons the board allowed/voted in an 8% increase in the first place, in the face of overwhelming public opposition to it, was to make other states whole again without taking fish away from Virginia… Certainly not to simply benefit one company, at the expense of the rest of the coast.

And seriously? The gall to even insinuate this was unfair? After the board worked so hard to make sure that Virginia didn’t lose anything here?

We would argue that it’s unfair to give one state a full 80% of a coastal PUBLIC resource so that one large-scale extraction company can benefit. The supposition that Virginia somehow has a right to a vastly inequitable allocation of such public resource, because they have a history of knocking the crap out of it at the expense of everyone else, is, frankly, infuriating.

Lastly, Virginia argues that the decision to lower the Bay Cap lacks supporting scientific information and thus should return its prior level (87k mt).

Fortunately, as of this writing, ASMFC leadership seems to feel the same way we do, and articulated such in a recent response to VA. (Note: You can read that here should you wish. ASMFC Virginia Menhaden Appeal Response). Well, at least they agreed that there’s no real grounds for appeal on the quota specification and the “fixed minimum” allocation method.

Where things diverge is with the Chesapeake Bay Cap.

Chesapeake Bay Cap Reconsideration

ASMFC leadership agrees with Virginia that there isn’t sufficient evidence in the Amendment to support claims that Chesapeake Bay harvest results in localized depletion.

ASMFC actually commissioned a study to determine if localized depletion was occurring back when the Bay Cap was implemented, yet in the end it was inconclusive. While it could not prove there was localized depletion, it didn’t indicate that localized depletion wasn’t occurring either…. But come on man. When you take that sort of volume of an important forage fish out of a very specific region, the impact should be intuitive.

Regardless, the Bay Cap was/is supposed to be more about preventing localized depletion, not whether or not it is occurring now. And the Commission, if we understand correctly, has the full discretion to take preventative measures to ensure sustainable and productive fisheries should it chose to. So I don’t know where VA gets off appealing a board motion that won by a wide margin, and I certainly don’t understand why leadership seems to be conceding here.

Unfortunately, and frankly unnecessarily, leadership is recommending a “fact finding committee” to look into the science surrounding the Bay Cap.

While that’s occurring, they recommend that the Menhaden Board reconsider the Bay Cap for 2018, suggesting they move it back to the original 87k MT for 2018 while the committee completes its work. And, “Leadership strongly recommends pursuing/implementing this one year change in the Bay Cap as a way to help facilitate compliance with the FMP”

And that stinks… Because in our view the Commission is simply being bullied into submission here.

If you think this is no big deal, well, respectfully, you are wrong.

If we go back to an 87k mt Bay Cap, with the rollover, the reduction industry could harvest an entire 40% of the coastal quota in what is by far the most important striped bass producing area on the East Coast. And THAT would be catastrophic.

Given Virginia and the reduction industry’s insistence to get this level of quota back, one might even conclude that this is indeed their plan.

Here’s What We Think About All of This

Virginia and its reduction industry are being unreasonable here, and yes, they are being bullies. (Of course, we have New Jersey to thank for this sort of behavior – for context see Thanks New Jersey.)

Their demands, and their not-so-thinly-veiled-threat to take “further action beyond the ASMFC process to seek relief” – in other words, go directly to the Secretary of Commerce if they don’t get their way – ring hollow to us.

We suggest the Commission stand up to such threats and let them play out if they must. Because it’s pretty clear Virginia is waaaay in the wrong here.

And if the Commission concedes, especially on the Bay Cap, well, it’ll be bad for more reasons that one. Every other state that wants to grab more fish will simply threaten to go out of compliance and “seek relief” with the Secretary. The first one that comes to mind is Maryland who desperately wants to kill all of their 18” striped bass.

And of course, with the reduction industry in particular? It will just keep asking for more… like it always does… no matter how much the Commission gives it. That industry doesn’t care about other states, the fishermen there, the predators that need menhaden. It cares about one thing: profit.

Why the Commission would concede and give Virginia and the reduction industry anything at this point is beyond me.

You can be sure that when the Commission has the long awaited menhaden-specific ecosystem reference points and it comes time for the Commission to make hard choices between whether to keep fish in the water for ecosystem benefits or whether industry can make more profit, the reduction industry will fight tooth and nail, threaten to go out of compliance, threaten to sue, throw a temper tantrum, etc. if Commissioners choose to leave a few in the water.

And will the Commission concede then? We certainly hope not, but it’s a slippery slope.

You, of course, have some power to do something here. Call or email your Commissioner now. Tell him or her to stand up to the menhaden reduction industry, for the good of our whales, for our recreational fishing industry, for our local bait harvesters and, most importantly, to preserve the integrity of the fishery management process.

Do it now:







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