Summer Flounder TAL

November 22, 2006

Toni Kerns
Senior Fishery Management Plan Coordinator
Atlantic States Marine Fisheries Commission
1444 Eye Street, NW, 6th Floor
Washington, DC 20005

Dear Ms. Kerns:

There can be little question that establishing total allowable landings (“TAL”) of summer flounder for 2007 has arguably become one of the most controversial issues faced by the Atlantic States Marine Fisheries Commission (“ASMFC”) in many years. Unfortunately, as too often happens with regard to fisheries issues, the rhetoric has become so overheated that it obscures the facts and circumstances that shape the upcoming decision, and public comment, instead of assisting managers carry out their duties as stewards of the nation’s marine resources, has become little more than self-serving criticism of the management system.

That is unfortunate, particularly given that much of the vitriol in the current debate has flowed from elements within the recreational sector, a sector that has, on other occasions involving other species, led the fight for responsible fisheries management. Coastal Conservation Association New York (“CCA NY”) is taking this opportunity to present its comments on the 2007 summer flounder TAL to ASMFC. CCA NY is the New York chapter of the Coastal Conservation Association, a national fisheries conservation organization comprised primarily of anglers concerned with the long-term health of the nation’s fish stocks and the long-term sustainability of its fisheries. CCA NY’s hopes that its comments, which cite supporting documents when appropriate to help distinguish fact from opinion or conjecture, will prove useful to those persons charged with the responsibility of deciding the issue in question.

CCA NY’s Position

CCA NY believes that the summer flounder TAL adopted by ASMFC must meet two criteria:

1) Any such TAL must be supported by the best available scientific data, and

2) The TAL adopted by ASMFC must not differ materially from that adopted by NOAA Fisheries.

The arguments underlying CCA NY’s position are set forth below.

I
The TAL must be supported by the best available scientific data
A
There is a sound basis for the current rebuilding target

Contrary to what is frequently heard from those opposed to reductions in the summer flounder TAL, the rebuilding target is not “arbitrary,” but rather the result of a calculation that originally multiplied the total biomass per recruit by the median recruitment. Such target has been adjusted from time to time as additional information became available regarding recruitment numbers and the mean weight at age of the summer flounder. Most recently, the calculation has been revised, and is now the product of spawning stock biomass per recruit and mean recruitment, but the result is essentially the same.

It should be noted that both application of a Beverton-Holt model and what is described as a “non-parametric” empirical approach yield substantially similar results, although the latter approach is preferred due to the relatively short data series and the former model’s sensitivity to the high recruitment rates that prevailed in the earlier portion of that series. Such concurrence should provide greater confidence in the calculation of a biomass target, and combat current claims regarding the “arbitrariness” of such figure.

In that regard, it should also be noted that arguments have been made to the effect that a Ricker model, rather than a Beverton-Holt model or the currently preferred empirical approach, should have been used to establish the biological reference points. While CCA NY does not pretend to the scientific expertise needed to make such a determination, it must note that the use of such Ricker model was rejected by the 41st Northeast Regional Stock Assessment Workshop due to its failure to yield “feasible parameter estimates”. When a model returns results that are incredible on their face, common sense dictates that the use of such model is inappropriate for the stock in question. Employing that simple layman’s measure, CCA NY does not believe that there is any credible support for the use of a Ricker model at this time, and must accept the spawning stock biomass target of 197.118 million pounds as the best available estimate of Bmsy.

B
There are sound reasons to reduce the 2007 TAL below that of 2006

While the recommendation to sharply reduce the summer flounder TAL has met with substantial criticism, particularly in the angling press of the upper Mid-Atlantic, commentators appear loath to discuss the factors that support such reduction and, even when such factors are addressed, tend to provide readers with a redacted version of the facts. An examination of all of the facts available provides a compelling argument for reducing TAL in 2007. CCA NY suggests that, if the complete picture was provided to anglers in an evenhanded manner by the various organizations and publications that have weighed in on the issue, the public’s reaction to the proposed reduction would include far less anger and less distrust of the management system. ASMFC should consider that possibility when evaluating public comment.

For example, it has become the mantra of some members of the recreational community that the summer flounder population is the “highest in history”, “highest ever recorded”, etc. While there is no question that the biomass has recently reached the highest recorded in the time series, little is made of the fact that total biomass has declined since 2004 and that 2006 spawning stock biomass is below 2005 levels, or that recent fisheries-independent surveys are nearly unanimous in marking a decline—in some cases a steep decline—in abundance. Much emphasis has been placed on the fact that the stock is “not overfished”, but no one mentions that if the annual retrospective decrease of 12% is applied to the current estimate of SSB, such estimate would in fact fall below the biomass threshold.

CCA NY believes that managers have an obligation to put the summer flounder population back on the track to a timely recovery. Given that overfishing has been chronic, and that fishing mortality has never, for even a single year, dropped below Fmax, such action is long overdue. Chronic overfishing should never be tolerated, and it is unfortunate that it has been allowed to continue in the summer flounder fishery for so long. The only way to end it is to adopt a TAL low enough to recognize and account for historical patterns of overfishing.

2005’s poor recruitment, the worst since 1988, provides another argument for conservative management, particularly since recruitment has recently experienced a retrospective decrease of 10%. While SSB is currently only a few percentage points below peak levels, it would be prudent to implement measures that would protect the weaker year classes now being produced and thus maximize their reproductive potential until such time as a stronger year class appears.

C
Reductions in 2007 TAL are a direct result of past failures to take a risk-averse approach to summer flounder management

Many of the most vocal persons and organizations opposing the likely reduction in the 2007 summer flounder TAL have expressed indignation and, in some cases, surprise that biologists have found a retrospective decrease in biomass, spawning stock biomass and recruitment, and a retrospective increase in fishing mortality. Such indignation and surprise is probably best expressed in a letter from members of New Jersey’s Congressional delegation to Dr. William Hogarth, which was solicited by certain representatives of that state’s angling community. In the letter, the legislators refer to “previous ill-advised management approval decisions made by the National Marine Fisheries Service (NMFS) earlier in the rebuilding schedule” of summer flounder, and observe that “It would be patently unfair to approve a TAL imposing a drastic cut on fishermen simply because NMFS was unwilling to take action earlier in the rebuilding time frame,” further stating that “Your agency's staff has yet to offer any kind of coherent explanation as to why NMFS approved these overly optimistic quotas.“

Unfortunately, the legislators’ ire is probably aimed at the wrong target. Minutes of the Mid-Atlantic Fishery Management Council (the “Council”) clearly show that National Marine Fisheries Service (“NMFS”) representatives strongly advised Council members to avoid what NMFS Northeast Regional Director Patricia Kurkul called “managing at the margins” and take a more conservative approach. However, such a precautionary approach was categorically rejected by the same representatives of the angling community who now criticize the proposed reductions in the 2007 TAL. The following exchange, taken from the minutes of the August, 2003 Council meeting, is long but enlightening, as it clearly depicts such rejection of NMFS’ advice to take a more risk-averse approach to summer flounder, and helps explain how managers reached the situation that they face today.

PAT KURKUL: … I’ve heard considerable concern over the last few years since the judge’s decision on summer flounder that indicated that we needed to achieve at least a 50 percent probability of attaining the target TACs, that the decision took away the managers’ discretion and prerogative, and I think you’ve heard me argue in the past that in fact it didn’t do that at all. What it did was set a sort of lower bound for the amount of risk that’s appropriate, yet there’s still a considerable range—there are still several different alternatives within a range available to managers where the decisions that we make have to do with the amount of risk we’re willing to assume.

I’m concerned that the tendency has become that we’re going to automatically just adopt the riskiest alternative without consideration of those other alternatives and whether those might be appropriate in different situations. And this is one of them. If you look at the special comments…in the Advisory Report it says given the persistent retroactive underestimation of fishing mortality, managers should consider adopting a lower TAL than that implied by the current overfishing threshold.

The 2001 number went from .27 to .35. If that’s in fact the situation for 2002, then we may not be celebrating moving from a situation of overfished—overfishing, rather, to one where we’re not overfished. So there are scientific justifications for we as managers considering different alternatives to this.

I think the tendency in a rebuilding fishery is to in a sense—too quickly over-liberalize and just a natural reaction to having gone through 10 or 12 years now of a rebuilding program and getting to a situation where the news is significantly improved.

What might be a more reasonable way to deal with these fisheries is to look at a controlled expansion…If you look at the 75 percent probability, for example, the TAL would be…26.2 million pounds. So even at a 75 percent probability level, you’re still talking about a significant increase in the quota, and close to the highest TAL since this fishery management plan was implemented.

So, even with an increase, there’s some way to allow for expansion of the fishery, but perhaps not to the situation where we’re constantly managing at the margins. And there’s a lot of benefits to that, to the industry. I believe that it would provide benefit of increased stability in this fishery. I think the situation we have to deal with later today in the scup fishery is not one we want to particularly be dealing with next year in the summer flounder fishery, where we had this significant expansion and now we’re looking at taking a step backwards on that.

So, with a moderate increase for this year, I think that more likely next year—regardless of what happens with the stock and with the fishing mortality rate, we’d be more likely to at least maintain where we are and probably continue the increases every year. And I do think that would benefit the industry in the long run, instead of—as I said, if you’re managing at the margins, you have this tendency to bounce up, bounce down, bounce up, bounce down.

So, I think that’s something we should consider in all the fisheries that we’re looking at, but in particular I think this year for summer flounder it needs to be a consideration.

BOARD CHAIR DAVID BORDEN: Tom Fote.

TOM FOTE: I have very great difficulty with that, the fact that we were taking away from our job and our experience as managers and required to go to 50 percent, we’ll be looking at a fishery that we know there’s a lot more fish out there than we’re basically estimating. Most of us feel that way. Most of the data we see, most of the hook and release mortality shows the same thing. We are forced because of a lawsuit to go to this—well, the Atlantic States Marine Fisheries Commission wasn’t, but NMFS and the Council was, to go to 50 percent.

That 50 percent has provided a buffer. At 25 percent we made estimates years ago, we rebuilt the stock, it was going along fine. It was rebuilding, if you look at the graph and the chart as years progressed.

So I think—you know, and they say it didn’t—you know, it would be better for the industry. I know what the reduction cost for that lawsuit in one year for the recreational industry was probably about 450 million dollars coastwide because we had to shut seasons down for a month, and boats didn’t sail and tackle stores didn’t sell bait and everything else. Commercially it meant that again they had to basically reduce their catch by a million pounds because the lost markets again to foreign vessels. That doesn’t help the industry. Thank you.

Given the above, it becomes clear that there probably was a way to avoid, or at least mitigate, the current situation. However, individuals representing a significant proportion of the summer flounder fishery categorically rejected Ms. Kurkul’s suggestion that the fishery be managed in a more risk-averse manner, and supported “managing at the margins” by electing the “riskiest alternative” each year. Managers heeded the users’ demands, and the result is just what was predicted, “taking a step backwards” in harvest and a TAL with a “tendency to bounce up, bounce down…”

We now see the same individuals and organizations, who were willing to assume the highest permissible level of risk but are now unwilling to accept the consequences of their actions and advocacy. They gambled that they could have both a high harvest level and a recovered stock, and they lost their bet. Now, they seek to place the blame for anticipated TAL reductions on managers, on federal law, on biologists, even on spiny dogfish—in fact, on anyone and anything save the effects of their own relentless advocacy before the Council and ASMFC, where they urged the maintenance of TALs at high and, in retrospect, unsustainable levels. Even now, that advocacy continues, as they attempt to bludgeon ASMFC into ignoring the analyses competent biologists and adopt an unjustifiably high TAL. Opponents of TAL reductions can offer no reasoned analysis of the data to support their position. Their only argument is that they don’t wish to endure the hardships that their own advocacy efforts helped create.

ASMFC should not give in to such self-serving efforts, but rather make its decision based on the facts presented by fisheries professionals. Otherwise, it risks even greater problems, and even greater controversy, in 2008.

II
The TAL adopted by ASMFC must not differ materially from that adopted by NOAA Fisheries

CCA NY had originally planned to make extensive comments in this section. However, given the recent letter written to ASMFC by NMFS addressing the same issues, such comments can be shortened substantially.

CCA NY’s primary concerns regarding an ASMFC-adopted TAL that is inconsistent with the TAL established by NMFS are similar to those addressed in points 5, 6 and 8 of the letter. That is, it is concerned with the impact of such disparate TALs on federally-permitted commercial and recreational vessels, it is concerned with the de facto reallocation of the summer flounder resource and it is concerned with the impact of an arguably excessive ASMFC TAL on the future management of the stock.

However, the reasons for CCA NY’s concern may differ somewhat from those of the agency, and involve issues that unique to New York and some similarly-situated states.

With regard to the prohibition of summer flounder harvest by federally-permitted commercial vessels, and de facto reallocation of the harvest, CCA NY’s concern stems from the fact that such prohibition would shift the entire commercial allocation to the inshore trawler fleet, which is not federally licensed and may fish only within state waters. In recent years, New York has restricted such inshore trawlers to a very small trip limit during the months when summer flounder are most available in state waters. Such trip limit has been set as low as 60 pounds, and for significant portions of the summer of 2006, the vessels were permitted no summer flounder landings at all. However, should federal waters be closed to commercial fishing, such vessels would experience a windfall allocation that they would be required to harvest solely from state waters. Such increased trawler activity would certainly cause frequent conflicts with recreational vessels, which often fish in areas where the trawlers would operate, and would likely lead to localized depletion of summer flounder, with the resultant negative impacts on both the commercial and recreational sectors. In CCA NY’s opinion, New York’s recreational fishers might well find themselves more successful fishing under the smaller NMFS TAL, with no significant competition from the inshore trawler fleet, rather than fishing under a 19.9 million pound TAL on grounds frequently scoured by trawls, where anglers and trawlers compete for the same section of sea.

CCA NY’s concern with regard to a prohibition of summer flounder harvest by federally-permitted recreational vessels is obvious. As the age structure of the summer flounder population expands, many anglers have begun to target the larger fish. As a result, the recreational fishery is changing character to some degree, shifting from a primarily inshore and back-bay fishery to one which is frequently prosecuted in deeper ocean waters, often more than three miles from shore. Any prohibition on harvest in federal waters would curtail some of the most challenging and productive summer flounder angling currently available.

Finally, as a conservation organization, CCA NY must be concerned with the potential impact of excessive harvest on the summer flounder population. As mentioned earlier in these comments, there is no doubt that the summer flounder population is near its recent peak. However, scientists have expressed some concern regarding overfishing and poor recruitment. Perhaps those are transient problems that can be addressed with relative ease, and the summer flounder can tolerate additional fishing pressure. However, that is not at all certain, and CCA NY believes that if an error is to be made, it is better to err on the side of caution. Overharvest today can resonate long into the future.

III
CONCLUSION

There is considerable uncertainty in any stock assessment and any fishery management plan. There is also always more demand for a fishery resource than there are fish available to satisfy it. Thus, managers are always caught between the need to conserve and restore a fishery, and the desire to avoid harming people and businesses during the conservation and rebuilding process. The former need is best met by taking a precautionary approach, the latter by being less risk averse. That is the problem that faces ASMFC with regard to summer flounder.

In the past, ASMFC and NMFS have elected to take the more hazardous path, and permitted fishing at Fmax, despite evidence of retrospective increases in fishing mortality. Arguably, that approach brought us to where we are today.

CCA NY now asks that ASMFC exercise caution, and take the path suggested by the best available science. CCA NY does not presume to suggest a specific TAL, but rather urges ASMFC to suggest a TAL that, based on the best available science, is likely to lead to the timely rebuilding of the summer flounder population. In addition, in setting such TAL, CCA NY asks that ASMFC work in harmony with NMFS, to maintain the joint character of the management plan.

Thank you for considering CCA NY’s views on this matter.

Sincerely,

Charles A. Witek, III

State Chair

1Northeast Fisheries Science Center, 35th Northeast Regional Stock Assessment Workshop, Stock Assessment Review Committee, Consensus Summary of Assessments, 2002, p. 9.
2 Ibid.
3 Northeast Fisheries Science Center, 41st Northeast Regional Stock Assessment Workshop, 41st SAW Assessment Report, 2005, p. 12.
4 Terceiro, Mark, Summer Flounder Assessment and Biological Reference Point Update for 2006, 2006, pp. 10-11.
5 Northeast Fisheries Science Center, 2005, p. 22.
6 Ibid., p. 21.
7 Terceiro, Update, p. iv.
8 See, as examples, Geiser, John, “What’s First, Fish or People?”, Asbury Park Press, September 1, 2006 (“highest level in the last 70 years’); Capt. Tony Bogan, quoted by John Geiser in “Are Fluke Anglers’ Days Numbered?” Asbury Park Press, July 21, 2006 (“the highest they’ve ever been in memory”); Recreational Fishing Alliance, Press Release, “United Boatmen of New York and New Jersey and Recreational Fishing Alliance Rally Anglers to Address Fluke Problem” (“the highest size ever recorded”)
9 Terceiro, Mark, Stock Assessment of Summer Flounder for 2006, Northeast Fisheries Science Center, 2006. With respect to the results of the ten fisheries-independent surveys detailed in the stock assessment, only one, the Massachusetts DMF fall survey, recorded a time-series high in 2005. Of the others, four (the Northeast Fisheries Science Center’s fall and winter surveys, and the Rhode Island DFW’s fixed-station and fall trawl surveys) peaked in 2003, and showed a decline of roughly 40% since that time. Three others, the Connecticut DEP spring and fall surveys and the New Jersey BMF trawl survey, peaked in 2002 and have since recorded declines of more than 60% in Connecticut and 35% in New Jersey. The trawl survey conducted by Delaware DFW peaked in 2001 and has shown an 80% decline in abundance since that time, while the Massachusetts DMF spring survey peaked in 2000 and has since seen abundance decline by 40%. It should be noted that all declines are shown for surveys through 2005, and do not reflect 2006 data.
10 Terceiro, Update, p. 13.
11 Northeast Fisheries Science Center, 2005, p. 11.
12 Terceiro, Stock Assessment
13 Letter dated October 13, 2006, addressed to Dr. William Hogarth by Senator Frank Lautenberg, Senator Robert Menendez and Congressman Frank Pallone.
14 Mid-Atlantic Fishery Management Council Meeting Minutes August 5-7, 2003, Morning Session August 6, 2003, 30:8.
15 Ibid., 28:2-32:12
16 It should be understood that while only Mr. Fote’s comments are quoted in the text, they are representative of comments made by a number of individuals and organizations over the years, before both the Council and ASMFC. Further, more recent examples may be found in the Proceedings of the Atlantic States Marine Fisheries Commission Summer Flounder, Scup and Black Sea Bass Management Board, November 2, 2005, comments of Herbert Moore (pp.21-22), Tom Siciliano (p.25), Shawn McKeon (pp.25-26), Hal Hagerman (p.26), Bob Bush (p.27), James Fletcher (p.35) and Ray Bogan (pp.35-36)17 Letter dated November 17, 2006, to George D. Lapointe from Dr. William T. Hogarth