Fisheries Regulation: A Foolish Inconsistency

Black Sea Bass caught off Fire Island

Photo: Black sea bass caught off a wreck near Fire Island

Last October, I was trolling east off New York’s Fire Island when I happened to glance out to sea. Off in the distance, perhaps two or three miles south of where I was fishing, I noticed a party boat anchored up over an inshore wreck.

Normally, that wouldn’t be particularly remarkable. Party boats take anglers out on wreck trips throughout the season, seeking fish such as cod, red hake (more often called “ling”), black sea bass and scup. In early October, black sea bass and scup would be the most likely targets. The only problem was that the wreck was in federal waters, more than three miles from shore, and in early October, the federal black sea bass season was closed, although the season in state waters remained open.

I can’t say for certain that the boat had black sea bass on board. I didn’t run out to see what it was catching, and I didn’t run back to its home port at Captree State Park to see what the anglers took home. Given the time of year and where it was fishing, there’s no doubt that black sea bass were caught. Human nature being what it is, it’s almost as certain that some of those black sea bass were retained, in complete disregard of the law.

The unfortunate fact is that any anglers who did keep black sea bass that day could be very confident that they would get away with breaking the law.

The National Marine Fisheries Service (NMFS) has exactly one law enforcement agent on all of Long Island, and though he does an exemplary job, he just can’t be everywhere at once. At-sea enforcement is largely the domain of the Coast Guard, which is far too busy to stop and board party boats on a regular basis, and the Enforcement Division of the New York State Department of Environmental Conservation, which is shorthanded and overworked at the best of times. It rarely, if ever, has the time to patrol off the coast just in case a violation may be taking place.

And once the party boat pulled anchor and came within three miles of shore, it would be virtually impossible to prove that any black sea bass on board were not caught legally, within state waters.

We can only speculate about how many party boats, charter boats and privately-owned vessels figured that the odds were on their side, and took black sea bass from federal waters when the federal fishing season was open, but the state season was closed. However, the smart money says that that it was more than a few. The state’s failure to conform its season to that in effect in federal waters undoubtedly created too much temptation for some people to resist.

Of course, it isn’t always the state’s regulations that create the problem. Throughout the mid-Atlantic and southern New England, the illegal harvest of tautog, also known as “blackfish,” has helped to deplete the stock and made it very difficult to manage successfully. In New York, both recreational and commercial tautog fishermen are strictly regulated; the number of commercial food fish licenses is strictly limited to better protect fish stocks.

However, there are no federal regulations for tautog at all, and New York offers a commercial fish landing license to anyone who owns a boat and is willing to pay the $500 annual fee.

The fish landing license doesn’t permit its holders to fish commercially within New York’s waters; they would need a food fish license for that. It merely permits a fisherman to catch fish in federal waters or the waters of another state and land them at a New York port.

In reality, fishermen unable to obtain a food fish license are purchasing the landing license instead and using it as cover to land tautog caught illegally within state waters, while claiming that the fish came from federal waters farther offshore. Once again, a vast ocean and a dearth of enforcement personnel makes it very unlikely that such illegality will be detected.

Legislation has been introduced in both the state Senate and state Assembly to ban selling tautog pursuant to the landing license, but its passage remains up in the air.

In the Gulf of Mexico, state regulations that are far more generous than those imposed by federal managers have created real difficulties in the red snapper fishery. In Texas, for example, the season is open all year, and anglers may keep four red snapper, with a minimum size of 15 inches, each day. The federal season, on the other hand, is only 9 days long this year, with a two-fish bag limit and a minimum size of 16 inches.

The other Gulf states have regulations that are more restrictive than those of Texas, but less restrictive than those imposed on anglers in federal waters. Because red snapper are managed as a single stock throughout the Gulf of Mexico, and because fish landed anywhere in the Gulf are counted against the federal catch limit, the more liberal state regulations force federal managers to impose more restrictive regulations than would be required if the state and federal rules were the same.

In addition, keeping state waters open while federal waters are closed creates an irresistible temptation for many anglers to cross over the boundary and illegally harvest red snapper in the closed area.

A few years ago, the State of Louisiana actually encouraged such misconduct by unilaterally declaring its state waters to extend more than ten miles from shore, instead of the three miles recognized by federal law. The U.S. Coast Guard eventually addressed the situation by issuing citations to any anglers caught possessing red snapper more than three miles from shore during the federal closure.

That argument was rendered moot for this season, as Senator Richard Shelby (R-AL) inserted a rider into the Omnibus Budget Bill that extended state fishery management jurisdiction in the Gulf of Mexico out to nine miles from shore. However, the temptation for anglers to venture out more than nine miles, to fish in closed federal waters, remains.

While states have little recourse when more liberal federal regulations tempt fishermen to go out of compliance with state rules, NMFS has a powerful tool available to address the problems that arise when lax state regulations threaten federal fisheries management programs.

It is found in Section 306 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), and provides that

“If the Secretary [of Commerce] finds…that

    A) the fishing in a fishery, which is covered by a fishery management plan implemented under this Act, is engaged in predominantly within the exclusive economic zone and beyond such zone; and

    B) any State has taken any action, or omitted to take any action, the results of which will substantially and adversely affect the carrying out of such fishery management plan; the Secretary shall promptly notify such State and the appropriate Council of such finding and of his intention to regulate the applicable fishery within the boundaries of such State (other than its internal waters), pursuant to such fishery management plan and the regulations promulgated to implement such plan”

Such provision would seem tailor-made to address the current problems in the Gulf red snapper fishery. Unfortunately, in the real world of politics, any effort to do so, particularly when Congress is in the midst of reauthorizing Magnuson-Stevens, would almost certainly result in the provision being deleted shortly after it was first used, leaving federal managers with no means to convince or coerce balky state managers into compliance with federal fishery management plans.

It is an unfortunate situation, for in a world where some fishermen will seek to take advantage of any inconsistency between state and federal fishery management programs, the long-term health of America’s marine resources is far better assured when state regulations conform to those imposed by federal fisheries managers.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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