September 17 – Booming New England Seal Population Creates a Management Challenge – Congress passed the Marine Mammal Protection Act (MMPA) in 1972, forty years ago. Intended to slow the precipitous decline of marine mammal populations due to human activities, the act prohibited the killing, harassment, or excessive disturbance of marine mammals in United States waters. For seals in New England—mainly harbor seals and gray seals—the MMPA’s protections effected a massive boom in population.

September 21 – Illegal and Wrong – Wednesday’s New England Fishery Management Council’s Groundfish Committee meeting was … depressing. As the expression goes, just when I think I am seeing light at the end of the tunnel I realize that it is the headlights of the on-coming bus. Once again, current events—bad as they are—seem about to be exploited to produce an even more dismal future. The topic was throwing open the decades-long fishery closed areas to exploitation again.

September 21 - Fish Talk in the News – Friday, September 21 – In this week’s Fish Talk in the News, the NEFMC Groundfish Committee proposes opening closed areas; blanket shark fin bans may hurt the sustainable dogfish industry; Gloucester fishing personalities comment on warm waters this summer; a NOAA report ranks New Bedford first in the country in fishing revenues; cod stocks move north in response to record-setting warm water temperatures; the scallop quota could take a heavy cut over the next two years due to poor recruitment.

September 6 – Courts Can’t Fix What’s Broken With Groundfish – On Wednesday, a panel of three Federal Circuit Court judges heard arguments from various parties regarding why the 2010 amendment to the New England Groundfish Management Plan, Amendment 16, should either be thrown out or upheld.

September 7 – Fish Talk in the News – Friday, September 7 – In this week’s Fish Talk in the News, the US Court of Appeals hears arguments on catch shares; a tagging derby raises money for tuna research; lobster overproduction may be linked to warmer waters; Michael Conathan argues for a new start for New England groundfish; NEFMC announces the agenda for its next meeting; bonito venture farther north; the Striped Bass and Bluefish Derby opens; Menino brings New Bedford fish to farmers markets; and trawling may influence underwater canyon morphology.

This post was originally published on CLF’s fisheries blog, TalkingFish.org.

This post refers to an oral argument held in the First Circuit Court of Appeals on September 5, 2012.  To listen to an audio recording of the argument, click here.

On Wednesday, a panel of three Federal Circuit Court judges heard arguments from various parties regarding why the 2010 amendment to the New England Groundfish Management Plan, Amendment 16 as it is known, should either be thrown out or upheld. Among the folks asking the court to throw out the amendment were the cities of New Bedford and Gloucester, whose mayors sat prominently in the room. I was representing Conservation Law Foundation’s interests to the panel and advancing our view that Amendment 16 was both crucial at the time because of the looming catch limit reductions as well as being well within the law.  A decision is expected shortly.

The judges were clearly puzzled during the argument by the same question that has puzzled many of us repeatedly over the course of this two-plus year legal fight: what were the appellants’ motives in bringing this challenge and what did they hope to get from the court even if they were successful?

And why New Bedford and Gloucester? Their Council representatives all voted for the Amendment 16 package even though—like most everyone involved—they strongly objected to parts of Amendment 16. What do those two cities gain by throwing the management system into chaos by their judicial challenges? Gross revenues of most New Bedford-based boats and from all New Bedford groundfish have climbed dramatically under Amendment 16. To a lesser extent, Gloucester is also better off in gross revenues. The Port of Portland certainly has suffered in recent years, but they did not challenge Amendment 16.  The Court clearly wanted to understand the larger context of the challenge.

The cities argued that they were in court to stop consolidation but, wait a minute, haven’t fishing operations based in Gloucester and New Bedford accounted for a lot of the consolidation? Were they there protecting the interests of the small boat coastal fleet?  No one has ever seriously accused New Bedford of being a champion of the regional small boat fleet in the past although it would be welcome now.

And why go to court when it is patently obvious to many of us that some components of the coastal day boat fleet remain at serious risk until near-shore groundfish populations fully recover, which may not happen soon enough, if ever. There are any number of immediate management actions that New Bedford and Gloucester could be championing at the Council to support survival of day boats; their silence on such matters is striking in that forum.

To me, it didn’t seem like the panel members ever got a convincing answer from New Bedford or Gloucester’s lawyer. I suspect there are a variety of motives behind this effort: fishermen who can show that Amendment 16 irreparably hurt their businesses and ways of life, political ideologues advancing some romantic, largely inaccurate notion of the business of fishing , and business interests who are somehow economically advantaged by keeping the groundfishery in chaos. The political motives may be as simple as press ink: a fish fight almost always makes the front pages, even if it is … well, a fish story.

The court is going to do what it does; as one of the judges observed dryly: “statutory construction issues are not without interest….” A judicial setback of Amendment 16 is unlikely but even if that should happen, no one has seriously proposed a better alternative. What really troubles me about all of this activity is the distraction of it all. Some fishermen are really suffering for circumstances they did not bring down on themselves and strategic infrastructure like the Portland Fish Exchange are hanging on by a thread.

I have been doing this sort of legal work for more than thirty years and I can promise one thing: nothing, let me repeat, nothing that comes from the First Circuit Court of Appeals will make any sort of a difference to those troubles.

The only thing that will make a difference is commitment to a process that abandons slogans and propaganda and focuses on solutions. There is a lot of talent and interest throughout the region in solving some of these problems and there is no question that the region is at some sort of tipping point.

With New Bedford and Gloucester on board, it now seems that there is broad consensus that the small scale, mostly coastal boat fleet may be at a structural disadvantage that needs to be corrected and that time is of the essence. Rather than fund lawyers, why couldn’t New Bedford and Gloucester lead some problem-solving workshops that would tackle these questions for which they profess so much passion.  We don’t even have to wait for the Council to guide the process.

A New Bedford trawler leaves port.

“Groundfish resources off New England have experienced significant changes in abundance during the past 30 years and have now fallen to all time record lows.” 

-  Ronald Brown, Secretary of Commerce. Declaration of Disaster Affecting the New England Fishing Industry – March 18, 1994

“…I don’t hear so much in New England that ‘there are plenty of fish, our scientists got it wrong’…right now what I hear  – and what I see in the eyes of fishermen  – is people are saying ‘we can’t find codfish’ and they are really worried about their ability to stay in business…”

-  John Bullard, NOAA Northeast Administrator. MPBN Radio Interview – August 29, 2012

Why does this current groundfish crisis seem so familiar? As the populations of New England’s cod, haddock and flounder have continued to decline, it’s not surprising that the number of fishing boats chasing them have declined. The business of consolidation within any industry is often a fact of doing business and we know that consolidation has been happening in the New England groundfish fleet for decades. So far, the New England Fishery Management Council has avoided any serious approach to addressing fleet diversity and consolidation as it kicks the can down the road on the development of Amendment 18, and the National Marine Fisheries Service has been willing to watch from the sidelines. Some members of the New England Congressional delegation are trying to reduce the potentially devastating economic blow to fishing families and coastal communities by seeking federal disaster assistance, and for their good intentions and hard work, are getting a bizarre and negative counter reaction. And, NOAA appears to look for grossly wrong-headed short-term fixes, such as the concept of an accelerated effort to open some of the best remaining habitat areas in the Gulf of Maine to increased trawling and dredging.

Consolidation, fleet diversity, maintaining our region’s fishing heritage, federal assistance and creating new economic opportunities for fishing families are all important and serious issues, but they continue to avoid the core problem. The bottom line is that when there are no fish, there will not be a fishing industry.

What NOAA can do now is to exhibit leadership: stop looking towards actions which would heave the decades-long saga of the New England groundfishery into the next episode and, instead, focus on restoring the fish populations which are the basis for the jobs, resources and tremendous benefits which we all need and enjoy. Don’t wait for the elections and for Congress to sort itself out. Don’t seek to cheat on “inaccessible” fish stocks by opening closed areas. Catch limits which are not based on scientific data may be more politically palatable, but will only continue to mask the simple fact that the region’s best fishing captains aren’t finding fish because the fish are not there.

Here’s a proposal to NOAA: Follow the law. Tell the truth. Do the right thing.

Realistic catch limits are based on scientific data and incorporate a responsible amount of precaution. NOAA can establish rebuilding timelines which create a much higher likelihood of restoring fish populations. Ending overfishing is not just a legal requirement but a best management practice.

In addition to strict scientifically set catch limits, the most basic component for healthy fish populations and ocean wildlife is to protect and maintain quality habitat. This is an area of management which NOAA can effectively control. NOAA needs to come to grips with the reality that better protection and restoration of degraded habitat is not only integral to the recovery of fish populations, but serves to create the long term resilience that fish populations need when the more unpredictable effects of climate change hit. Existing habitat areas and areas already closed to bottom trawling and dredging, juvenile groundfish in nursery areas and essential fish habitat are building blocks for restoring the fishery. This is a Basic 101 Management issue.

Fishing families and coastal communities deserve any help they can get in an economic crisis. Over a year ago the Department of Commerce deployed Economic Development and Assistance Teams to assess economic impacts to New England communities. Those reports are gathering dust. High-level interagency coordination helped develop solutions in the wake of the Deepwater Horizon disaster, and they can do that on a respectable scale in New England. Support communities with the available programs of the Departments of Labor, Housing and Urban Development, the Small Business Administration and community grants.

August 29 – Fisheries Scientists across the Yellow Line? – In discussions about how to set catch limits for yellowtail flounder, some scientists may have crossed the line separating pure science from policy making.

August 31 – Fish Talk in the News – Friday, August 31 – In this week’s Fish Talk in the News, a draft disaster relief package for the Northeast groundfishery; the mayor of New Bedford asks NEFMC not to reduce the catch limit for yellowtail flounder; dogfish receives MSC certification; NMFS adopts a new scallop stock assessment technique; warmer waters may be changing the distribution of New England fish stocks; the Ocean Health Index gives US oceans a low score for food production; and Coast Guard safety inspections for fishing vessels become mandatory this fall.

August 31 – A Proposal for NOAA – Why does this current crisis seem so familiar? As the populations of New England’s cod, haddock and flounder have continued to decline, it’s not surprising that the number of fishing boats chasing them have declined.

August 24 – Court Order Sets Clock Ticking for Action on River Herring – In a few weeks the New England Fishery Management Council will get a letter, probably a long one, explaining why the coming year will bring big changes to the way the council handles severely depleted river herring and shad.

August 24 – Fish Talk in the News – Friday, August 24 – In this week’s Fish Talk in the News: NOAA asks Congress to keep NERO in Gloucester; the Boston Globe supports John Bullard; New England fishing is the deadliest profession in the country; the South Shore Seafood Exchange grows; rising seal numbers cause concern; a gold rush for New England conch; river herring return to Upper Mystic Lake; and a cooking competition raises awareness of local, sustainable seafood.

June 20 – Conservationists and fishermen agree to agree – By Peter Baker. (Peter Baker directs the Northeast Fisheries Program for the Pew Environment Group.) News stories in New England about fishing often pit conservationists and fishermen against each other over how many fish should be caught, or play up every instance in which a private citizen bemoans government intervention. But today there is a much more compelling story, on which fishermen and conservationists agree.

June 22 – Fish Talk in the News – Friday, June 22 – This week’s stories include: new regulations for the industrial Atlantic herring fleet to protect river herring and shad, Native American tribal support for the opening of the St. Croix River to alewives, a bill to fight illegal fishing, a study to map the seafloor of Long Island Sound, an objective look at New England fisheries and fishing communities, and an article about how London is working to achieve their commitment to serve only sustainable seafood at the 2012 Olympic Games.

This piece was originally published on TalkingFish.org.

Federal fishery managers rolled the dice on the New England cod fishery on Monday, once again. It is hard to escape the premonition that they fell well short of their responsibility. We think catch levels were set too high, too little was done to reduce the growing cod catches of recreational fishermen, and nothing was done to balance fishermen’s economic and social pain by directing the small allocation of Gulf of Maine cod toward coastal fishing boats.

The decision of the National Marine Fisheries Service (NMFS) to accept the New England Fishery Management Council’s quota recommendation had little to do with precautionary principles and much to do with politics.

Atlantic cod (photo credit: NOAA).

The 2011 Gulf of Maine cod assessment, which has a broad consensus in the science community, concluded that the fishing levels for the last three years had been set perhaps five times as high as they should have been. A large percentage, sometimes bordering on almost 90% of the spawning cod, has been caught each year in recent times. With few adults older than ten years old in a population that should include significant numbers of highly-reproductive twenty-something-year old fish, the spawning populations are buoyed by little more than the individual year-classes of new maturing fish, year-by-year. The risks of a Gulf of Maine cod train wreck may well be much higher than this decision assumes.

The one thing that is known with certainty about past cod assessments is that they have consistently overestimated the spawning biomass and underestimated the amount of human and natural mortality that is happening in the real world. The scientists are not counting all the fish that are actually being killed each year. In the fisheries modeling world, this sort of systematic model error is called a retrospective pattern. The new assessment, just like prior assessments, is still based on a model exhibiting a retrospective pattern.

What this means in simple language is that while the managers think their new catch levels pose a 30% risk of bringing spawning fish populations down to new historic lows, the real risk is almost guaranteed to be higher – and only time will tell how much higher.  The scientists’ best estimate is that Gulf of Maine cod spawning stock biomass (the amount of the stock that is capable of reproducing) is roughly 11,868 metric tons (mt). By setting new 2012 catch limits at 6,700mt, NMFS and the Council expect that 56% of this spawning population will be caught in the fishing year. But this 11,868mt estimate is just one in a range of estimates; the actual spawning stock biomass could be lower or higher. In fact, the approved 6,700mt catch level could remove anywhere from 41% and 71% of the entire spawning population with equal confidence. Killing two-thirds of the spawners in a population that is already decimated is not rational.

And it is critical to remember that these are just best scientific estimates. The unforeseen cod collapse in Atlantic Canada in the 1990s that has lasted many decades now produced one irrefutable fact: even the smartest people in the room can’t fully understand or predict, let alone control, the biology of a situation. We should be mindful of that if we are to avoid our own cod collapse.

On the brighter side of the NMFS interim cod action, the managers didn’t open up any of the areas that are currently closed to fishing in order to protect important fish habitat and help species rebuild. That would have done little to help Gulf of Maine cod fishermen and much to undermine other rebuilding stocks that likely benefit from these closed areas. Significantly more analysis is needed before that action should be considered.

We are also encouraged to see that additional cod assessments and analysis will be done later this year. There may also be new assessment tools—specifically, the new low frequency sonar technologies developed by MIT and Northeastern—that might finally allow scientists to “see” the fish under the water and get a better real-time estimate of what the total populations of cod might be. All this work is of the highest priority. It would be a great relief if the latest assessment turned out to be overly pessimistic.

The power of denial and the risk of significant bias in these efforts, however, cannot be overstated.  The new analysis must be done right. With so much political pressure, so many fishermen in serious economic straits already, and so many scientists heading into the effort hopeful that a new look at the cod populations might produce a better result, the tendency to skew the inquiry will be practically unavoidable. With the long-term health of Atlantic cod in New England in the balance, however, the integrity of the scientific process must be protected.

There is no way to completely reduce the risks in a fishery, no perfect fishery. Nonetheless, we had started to hope that the New England managers were getting more risk-averse and more focused on realizing the important goal of managing this pivotal fishery out of its persistent crisis state. We hoped that they were becoming more mindful of the bad distributional effects of some of their management rules on the smaller coastal day boats. This latest cod decision negates optimism. It treated that long-term better and fairer future like some game of chance with such long odds that it wasn’t even worth playing.

The Gulf of Maine (Northern) shrimp season ends today (Photo credit: Aldric D'Eon, courtsey of the NEFSC).

• February 13: “A behind the scenes peek at the Gulf of Maine cod stock assessments” - What really happened to Gulf of Maine cod? Heather Goldstone of Climatide investigated last week by talking to Liz Brooks and Mike Palmer, two of the scientists at the Northeast Fisheries Science Center who were involved in producing the 2011 Gulf of Maine cod stock assessment.

• February 14: “To help GOM cod, NMFS should not touch closed areas” - It’s been widely reported that at its February meeting, the New England Fishery Management Council voted to ask the National Marine Fisheries Service to take emergency action on Gulf of Maine cod for the 2012 fishing year. The measures proposed, including a mere 3-13% reduction in the catch limit, were notable largely for their failure to address the condition of the depleted cod stock. But there is an aspect of the proposed package that has received little attention, which is troubling, because it would have NMFS open up five of the six existing areas currently closed to groundfishing.

• February 17: “Fish Talk in the News” - A weekly roundup of stories we think will interest readers. This week: news and opinion on Gulf of Maine cod regulations and fisheries science, the end of this year’s Gulf of Maine shrimp season.