At its November 2009 meeting, the Menhaden Management Board of the Atlantic States Marine Fisheries Commission extended the Bay cap on the harvest of menhaden for reduction.

For the last five years or more, there has been increasing frustration on the part of the public with the perceived unwillingness of this board to actually manage this species. In public hearings on the cap-both in 2005 and presently-the public rejected the cap and asked for action to reduce the harvest without receiving any satisfaction. The track record of the ASMFC is hardly impressive. An examination of why this unacceptable performance level continues seems warranted. It would appear that there are two principle reasons:

  • There is a structural flaw organizationally.
  • The overdependence on "science" for decision making.

The 1993 version of Title 16 Conservation Chapter 71-Atlantic Coastal Fisheries Cooperative Management Act sets forth the following: "The responsibility for managing Atlantic Coastal fisheries rests with the States, which carry out a cooperative program of fishery oversight and management through the Atlantic States Marine Fisheries Commission. It is the responsibility of the Federal government to support such cooperative interstate management of fishery resources."

It would seem to be a rational approach to fishery conservation: Have the states-who should know best what is happening in their waters-control that which is in their collective best interest. Each of the 15 states who make up the ASMFC has three commissioners to represent their state and, hopefully, the region as a whole.

What is missing here? There is no oversight at the Federal level with respect to how well the commissioners perform their tasks.

Two attempts have been made to deal with the menhaden issue at the federal level. In 2008, two bills were introduced in the House to reduce/eliminate menhaden harvesting for reduction purposes, which failed to get out of the subcommittee on fisheries. In 2009, Sen. Ben Cardin's draft bill dealing with Bay restoration included a provision for the elimination of commercial fishing for menhaden in the Bay in the draft version. It did not survive to be included in the bill as introduced.

While there may have been several reasons to drop this provision, one of the major, if not the major factor, was the jurisdictional issue as to which committee could deal with fisheries.

So here we have a public resource being used for private enterprise, an agency of the government which has chosen not to deal with the issue, and the public has no recourse through Congress even though Congress set up the organizational structure for regulatory process. Sounds like Catch-22 doesn't it?

Is there a means to provide accountability through federal oversight? Not unless Congress, under pressure from the public, elects to introduce legislation that places the ASMFC under an existing department-such as Commerce-for oversight purposes.

Given all of the complications with governmental bureaucracy, this does not seem to be likely. Alternatively, it is not impossible but would take a Herculean effort to lobby the governors of the affected states to direct their respective commissioners to be more proactive and take decisive action to reduce the menhaden harvest.

With regard to the "science" side of this issue, it is understandable that the ASMFC declares that decisions have to be made based on the best available science.

Regrettably, fishery science is quite imprecise and does not usually provide a clear path for the decision makers.

For example, the assessment model currently used to determine menhaden stock abundance concludes that the stock is not overfished and overfishing is not occurring.

Under the research program a different model was developed by a Canadian university that concluded that the stock was overfished, had been overfished for some time and overfishing was continuing.

No effort has been made to resolve these radical differences and determine what process should be used.

Similarly, studies were carried out in the Bay-and some outside the Bay-to determine what role menhaden had in the diet of striped bass. One concluded that menhaden were only 15 percent of their diet while the other determined that menhaden made up 75 percent of the diet.

Again, no effort was made to determine which was more accurate as it might have a significant effect on the stock assessment procedures.

How can one depend on science to answer questions on the need for changes in regulation when differences of this magnitude exist and are not resolved?

Further, the science(s) recognized by the management board are selective at the very least. Despite unchallenged data showing insufficient nutrition for predators, declining catch levels, a declining stock level-even with present stock assessment methodology- and abysmal recruitment levels, these factors seemingly have no influence on the management board.

Anecdotal evidence from those who make their living on the water or who are recreational anglers is equally discarded. No consideration has been given to socioeconomic issues as they pertain to the menhaden fishery.

The technical committee that advises the board on the science side of the fishery has not been open to methodology other than what has been employed for some time. The advisory panel which provides the board with public input is heavily oriented toward industry representation.

With all of these factors at play with respect to menhaden management, is it unexpected that no action is taken to increase the menhaden by reducing the quantities removed?

If one looks at the history of Atlantic menhaden management, one sees a consistent contraction of the reduction industry over time until there is now only one processor remaining.

It appears that the principle reason for closure of the factories was economic. The present processor is the most technologically advanced, which has much to do with its survival. But even so, it is not-according to financial statements-very profitable.

If history is any guide, it is probably inevitable that this venture will also fail economically, primarily because of the insufficient supply of raw material.

The big question here is: When and if this happens, will the remaining stock of menhaden be able to reproduce itself and what will be the condition of the dependent predators in these circumstances?

Given the present lack of adequate regulation, this may very well happen.