Top Photo: Atlantic Menhaden

Localized depletion has, over the past few years, become a hot topic in forage fish management. It’s based on the notion that, even though the overall stock of fish is healthy, intense fishing pressure in a particular region could significantly reduce abundance in that location, and have adverse impacts on the local food web.

First, there were menhaden in the Chesapeake Bay

The issue first drew concerted attention in 2005, after the Atlantic States Marine Fisheries Commission (ASMFC), acting through its Atlantic Menhaden Management Board (Menhaden Board), initiated Addendum II to Amendment 1 to the Interstate Fishery Management Plan for Atlantic Menhaden (Menhaden Addendum II), which capped the reduction fishery’s menhaden harvest in the Chesapeake Bay, while establishing research priorities to determine whether localized depletion of menhaden might be occurring there.

At the February 2005 Menhaden Board meeting, Dr. Behzad Mahmoudi, then Chair of the ASMFC’s Atlantic Menhaden Technical Committee, advised the Menhaden Board that

Still, there is a saying in scientific circles that “absence of evidence is not evidence of absence.” While no one had demonstrated that localized depletion was occurring, that didn’t mean that it was not, in fact, going on. The Menhaden Board considered Menhaden Addendum II a precautionary measure, that capped the reduction fishery’s harvest until more data could be developed.

Such action was not universally welcomed. Jeff Kaelin, speaking on behalf of Omega Protein Corporation (Omega), the sole participant in the reduction fishery, naturally opposed the harvest cap. At the Menhaden Board’s May 2005 meeting, he called such cap “arbitrary” and “scientifically unjustified,” and argued that “the discussion that has been taking place over the past several months about skinny stripers in limited areas of the species’ range and the potential for localized depletion of this important menhaden fishery resource…continues to perpetuate a myth that today’s modern and limited menhaden reduction fishery threatens the Atlantic menhaden and striped bass resources.”

Those divergent positions, one supporting precautionary measures to prevent possible localized depletion, and the other opposing any restrictions on fishing unless depletion can be proven, have characterized the debate, for menhaden and for other species, ever since.

In the case of Chesapeake Bay menhaden, the debate has stalled, with the current state of the science little different than it was fifteen-plus years ago.

The Menhaden Board has still failed to define just what “localized depletion” means.

At its August 2009 meeting, ASMFC staffer Braddock Spear told the Menhaden Board that the Council of Independent Experts, which was reviewing the ASMFC’s menhaden management program, suggested that managers must first understand the stock structure of menhaden in the Chesapeake Bay before the localized depletion issue could be addressed. The reviewers also believed that site fidelity was a prerequisite for localized depletion to occur; because adult menhaden are migratory, they probably can’t be locally depleted unless fishing mortality is extremely high. That isn’t the case with larvae and juveniles, which remain in the bay until they mature. Any definition of “localized depletion” must also incorporate some time period over which any possible depletion would be measured.

The recommended parameters were never established, but the Menhaden Board still chipped away at the cap on the reduction fishery’s Chesapeake Bay landings, in the name of localized depletion. Originally set at 109,000 metric tons, the cap dropped to 87,000 metric tons in 2013, and then to 51,000 metric tons in 2018.

At first, Virginia didn’t comply with the final reduction.

Under Virginia law, menhaden were the only species that was managed by the state’s General Assembly, rather than by professional fishery managers. In 2018, a narrow majority of the state’s legislators were sympathetic to Omega. They refused to pass legislation lowering the Chesapeake Bay reduction fishery cap to 51,000 metric tons so, at the Menhaden Board’s May 2018 meeting, a motion was made to find Virginia out of compliance with the management plan; if passed, such motion could have resulted in the United States Secretary of Commerce shutting down Virginia’s menhaden fishery.

At one time, the threat of such a closure might have cowed Virginia’s legislators. However, just a year earlier, New Jersey had been found out of compliance with the ASMFC’s summer flounder management plan; when the ASMFC’s non-compliance finding was forwarded to Commerce Secretary Wilbur Ross, the Secretary, for the first time in history, refused to uphold the ASMFC’s finding. That refusal substantially undercut the ASMFC’s authority. The Menhaden Board feared that, if Secretary Ross overrode a noncompliance finding on menhaden, it would further weaken the ASMFC’s ability to manage coastal fish stocks.

Omega hadn’t removed more than 51,000 metric tons from the Chesapeake Bay since 2012, so the issue might have faded away, had the company not notified the ASMFC, on September 3, 2019, that it intended to exceed the 51,000 metric ton cap that season.

In a follow-up letter to the Menhaden Board, dated October 2, 2019, Omega challenged the concept of localized depletion, writing that “The Bay cap has always been a unique measure. It only impacts fishing in one state (and effectively impacts only one company). It was never justified as a scientifically derived catch limit…[but as a] negotiated precautionary measure.”

Omega’s decision to exceed the 51,000 metric ton cap was a direct affront that the Menhaden Board could not ignore. At its October 2019 meeting, it finally found Virginia out of compliance with the menhaden management plan. But as the ASMFC forwarded its finding to the Commerce Secretary, there was real concern that the Secretary would find that the Menhaden Board had no scientific justification for imposing a harvest cap intended to prevent localized depletion.

On December 19th, perhaps thanks to the Governor of Virginia, who endorsed the noncompliance finding against his own state, and to the fishing and boatbuilding industries, which encouraged Commerce Secretary Ross to find Virginia out of compliance, the ASMFC announced that the Secretary agreed that Virginia had not complied with the menhaden management plan, and would shut down the state’s menhaden fishery on June 17, 2020 unless it came into compliance by then.

The concept of localized depletion had its first big win, even though scientists had never proven that menhaden could be locally depleted in the Chesapeake Bay.

Then, there were herring off New England

Up in New England, a fight over the localized depletion of Atlantic herring was taking shape. It would end very differently than the menhaden debate.

In 2015, the New England Fishery Management Council (New England Council) began soliciting public comments on a new amendment to its fishery management plan for Atlantic herring (Amendment 8), which would consider the herring’s role as a forage fish. The resulting comments not only supported lower harvest limits, which recognized herring’s place in the food web, but also requested regulations that would prevent large mid-water trawlers from depleting local populations of herring needed to feed marine predators.

Rob Muir, the director of the Ocean River Institute, called for “a harvest policy that addresses some of the spatial and temporal concerns repeatedly raised by fishermen—make sure there are enough herring in the times and at the places that predators need them.” The Pew Charitable Trusts made a similar argument, saying that “Amendment 8 should include alternatives that explicitly aim to keep Atlantic herring present in sufficient quantities when and where they are needed most by predators.” Others expressed similar positions.

Such comments led the New England Council to conduct another round of hearings, that focused on the localized depletion issue. Unlike the Menhaden Board, the New England Council defined such depletion, in the request for public comment, saying “localized depletion is when harvesting takes more fish than can be replaced either locally or through fish migrating into the catch area within a given time period.”

There was broad public support for the New England Council’s efforts to control localized herring depletion.

Bud Brown, an environmental consultant from Maine with substantial experience in marine issues, wrote that “Inshore Herring stocks have been depleted by overfishing to such low levels that they do not have the Biotic Potential to overcome both natural mortality (M) and any sort of fishery (F). Given that the inshore depletion exists coast wide in Maine over a wide range of temperatures, environmental conditions, and human population densities, I find it intellectually dishonest to blame it on climate change, pollutants (we do a lot of water quality work and everything is better now), and predators.”

Shawn Joyce, a small-boat commercial tuna fisherman, expanded on such comments, saying “it is disappointing to see what happens when the mid-water [herring trawlers] come in during October. Just last season the midwater boats decimated the herring amidst the tuna fleet near Ipswich Bay and Southern Jeffreys Ledge. This quickly put an end to the tuna season for many small, local fishermen who are dependent on the fishery. Without herring as high fat feed, the tuna leave our waters.”

The great majority of other comments concurred.

Relying on such public comment, the New England Council released a proposed rule which, among other things, established a buffer zone that ran along the New England coast from Maine to Rhode Island. Large mid-water herring trawlers were barred from such buffer, to prevent localized depletion of inshore herring populations. The Federal Register notice accompanying the proposed rule advised, “Public comment during the supplemental scoping made it clear that localized depletion voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of local depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring.”

However, the notice also acknowledged “a lack of quantitative evidence demonstrating localized depletion.” It explained that “Information to quantify the impacts of midwater trawling on other user groups is scarce, so the amendment analyzed the degree of overlap between midwater trawl vessels and other user groups…Specifically, it incorporates the overlap with predator fisheries in the Gulf of Maine and southern New England throughout the year, as well as the overlap with ecotourism and the tuna fishery…during the fall.”

The midwater trawl fleet disagreed. Their comments noted, among other things, that “The best available science does not indicate localized depletion, nor does it find a difference in fishery removals by midwater trawl vessels compared to purse seine vessels, and the measure makes no attempt to align the restricted area with associated analyses and is an illegitimate political compromise.”

The National Marine Fisheries Service rejected such argument, averring “The Council’s development of the amendment considered the best available science to determine how best to achieve [optimum yield] in this fishery, given this fishery’s multiple commercial, recreational, and ecological interests. The inshore midwater trawl restricted area fairly and equitably allocates fishing opportunities to a wide variety of fishing industry participants in a manner that reasonably promotes conservation.” NMFS issued the final rule, which sought to avoid localized depletion by forcing the mid-water trawlers out of New England’s inshore waters, on January 11, 2021.

The courts play a role

The midwater trawlers sued, seeking to overturn the rule. On March 4, 2022, in the matter of Sustainable Fisheries Coalition v. Raimondo (Sustainable Fisheries), the United States District Court for the District of Massachusetts found in favor of the trawlers. In the court’s opinion, the decision was “arbitrary and capricious,” because NMFS failed to demonstrate “a rational connection between the facts found and the choice to implement the exclusion zone.” It determined that “the Secretary [of Commerce] could not identify any scientific evidence of localized depletion, let alone establish a link between the [midwater trawl] vessels and localized depletion.”

It was a somewhat questionable decision.

Courts have a very limited authority to overturn agency decisions. The federal Administrative Procedures Act permits a court to set aside an agency decision if, among other reasons, it is “arbitrary, capricious, an abuse of discretion…[or] unsupported by substantial evidence.” [internal formatting omitted]

The court is not allowed to substitute its judgement for that of the agency; it may only carry out a “careful, searching review [of the administrative record], to ensure that the agency has made a rational analysis and decision on the record before it.” Such determination is normally based on whether there was “substantial evidence” on the administrative record to support the agency action.

In 1938, the United States Supreme Court determined that “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In Sustainable Fisheries, the court decided against NMFS because there was no “scientific evidence” of localized depletion, and because NMFS failed “to clearly define localized depletion spatially or temporally.” The court disregarded the testimony provided by many witnesses, that they had observed the midwater trawl fleet deplete local herring stocks, and caused predators to abandon the depleted areas, saying “those comments can certainly provide anecdotal support for the final rule, [but] are not an adequate substitute for scientific evidence of localized depletion and its link to [midwater trawl] vessels.”

The key question, which a federal appellate court will have to decide, should NMFS appeal the lower court’s decision, is whether, in finding that stakeholder comments were “not an adequate substitute for scientific evidence,” the lower court overstepped its authority, and improperly substituted its own views for that of the agency. To put it another way, such appellate court would have to decide whether the comments made at the hearings constituted “substantial evidence” that NMFS might reasonably have found sufficient to support its decision to close inshore waters to mid-water trawls.

So far, NMFS has not decided whether it will appeal, but trial court’s decision tested the bounds for judicial review of agency actions. The appellate court’s decision could go either way.

What happens next?

Where does the court’s decision leave the issue of localized depletion?

The answer depends on which management body is making the rules.

The ASMFC won’t be affected at all. The 2010 decision of the United States Court of Appeals for the 2nd Circuit, in New York v. Atlantic States Marine Fisheries Commission, determined that the ASMFC’s fishery management measures are not subject to judicial review pursuant to the Administrative Procedures Act. Thus, the ASMFC is free to adopt precautionary measures to prevent the localized depletion of any fish stock, without worrying that the lack of underlying scientific findings will leave the action vulnerable to claims that it is arbitrary, capricious, or otherwise flawed.

There is always the chance that Virginia, or some other state, will go out of compliance with such an action. Should that occur, the fate of the challenged management measure will most likely depend on who the Secretary of Commerce is at the time; the final decision will be more a product of politics than of science or law.

For NMFS, the situation is a little more complicated.

Trial court decisions have very limited precedential value, and often turn on facts unique to each case. The court’s ruling in Sustainable Fisheries will not dictate the outcome of other management measures intended to avoid localized depletion. Yet, unless and until the Sustainable Fisheries decision is questioned or overturned by another court, the New England Council, and probably other regional fishery management councils, will likely be reluctant to adopt any similar measures unless they are supported by clear scientific evidence. Precautionary management efforts are unlikely to advance.

That will be a setback for improved forage fish management, but the setback should be temporary. The New England Council received comments from many fishermen and other stakeholders as to the impacts of industrial fishing gear on Atlantic herring stocks. What stakeholders observe, scientists can prove. They only need the time and the opportunity to do so.

In the meantime, the localized depletion debate will go on.