How an angler and two government bureaucrats may have saved the Atlantic Ocean.
The meeting to vote on the proposal took place in Boston on an unseasonably warm day in November 2011. Anglers came from far and wide—Maine, Rhode Island, Virginia, North Carolina—wearing olive and gray caps with embroidered striped bass and buttons that said “Save the Bunker” and “Save Menhaden Now.” Many drove in on so-called Bunker Buses, arranged jointly by sport-fishing clubs and environmental organizations. Paul Eidman, an angler from New Jersey who founded the group Menhaden Defenders, towed a billboard in his truck that depicted a striped bass made up of tiny, swimming menhaden. “No Bunker, no Bass,” the sign read, drawing cheers as it was installed outside the ASMFC meeting room. Whale watchers came from Maine, charter-boat owners from Maryland, commercial bait fishermen from New Jersey and Virginia, and environmentalists from the Chesapeake Bay region. Omega Protein’s senior scientist, public relations director, and plant manager sat together in the middle of the audience, looking glum.
As soon as the meeting began, it became clear that for the commissioners, the 40 percent figure was too radical a change. The opening bid was for a 30 percent limit. The question was how much lower it would go, and there were political currents below the surface pulling for the lowest possible number. In advance of the meeting, Virginia Governor McDonnell had approached five Republican governors along the coast, urging them to join him in choosing an option that would be less damaging to the reduction fishery. The night before the meeting, New Jersey Governor Chris Christie had called his commissioners and instructed them to vote with Virginia. New Jersey is home to Lund’s Fisheries, the largest menhaden bait company on the Eastern Seaboard, employing eighty-five fishermen.
In the end, it didn’t matter. New Jersey and Virginia were the only states to vote against setting the new reference point at 30 percent of MSP. After the vote, a grateful audience burst into applause. At least one conservation-oriented commissioner began to cry. For many, the vote was twenty years in the making.
Jim Price was not at the meeting that day. He was out in his boat on the Choptank River with Jim Uphoff and another scientist. But Price had his iPad with him and followed the vote in real time via Twitter. He smiled quietly when he read the news. “It changed the mood on the boat that day,” he told me.
That night, Omega Protein’s stock plummeted from nearly $11 per share to $8.54, and ultimately lost 35 percent of its value in a nine-day period. Six months later, the stock has barely recovered.
While the new reference points are a major breakthrough, the effort to protect the menhaden is by no means a done deal. Omega Protein may pursue any of three different strategies to protect its market share and foil conservationists’ hopes.
The first option is to delay rollout of the new rule. This past winter the ASMFC, ever the cautious body, put out a document asking for public comment on the appropriate timeline for implementing its new 30 percent preservation rule. Options include one, three, five, or ten years. (The ten-year time frame was not originally on the table, but Jack Travelstead, an ASMFC commissioner from Virginia, lobbied to have it included.) Ten years would buy Omega lobbyists the time they need to work the Menhaden Technical Committee and secure higher catch limits. In a call to investors and stock analysts in March, Omega CEO Brett Scholtes said the company viewed the ten-year timeline as “directionally favorable.”
Omega’s second option is simply to send its ships farther out into the ocean. The ASMFC only regulates state waters between the shore and three miles out to sea—which is traditionally where most menhaden fishing has taken place. The territory between three and 200 nautical miles is called the Exclusive Economic Zone (EEZ), and is subject to fairly loose federal monitoring under the jurisdiction of NOAA. “What goes on in the EEZ is still the wild west. There’s little oversight and enforcement, so we are relying entirely on the honesty of people at the dock, fish-processing companies, or wholesalers that buy the fish and put it out to market,” says Paul Eidman, founder of Menhaden Defenders.
The company’s third option—a nuclear option, really—is to convince Virginia politicians to secede from the ASMFC. The ASMFC is a voluntary compact between states, and Virginia nearly left it once before, in 1996, objecting to the constitutionality of a congressional mandate that states comply with regulations put in place by the ASMFC. That secession bill passed both the Virginia House and Senate and was even signed into law by then Governor George Allen before ultimately being scrapped when the legislature took it up again the following year.
As reductions to Omega Protein’s harvest loom, Virginia State Senator Richard Stuart has introduced a bill that would withdraw Virginia from the ASMFC entirely, a move that would affect not only menhaden, but every other marine species, fishermen, and maritime industry in the Old Dominion State, the nation’s fourth-largest seafood provider.
“I drafted my bill to demonstrate to the ASMFC that Virginia will not tolerate ignoring the best available data on menhaden,” Stuart told a reporter. His bill was referred to committee, and has been carried over to the 2013 legislative session. If it passes, as some suspect it might, Governor McDonnell will have an opportunity to sign it before he leaves office in early 2014 (presuming, of course, that he does not become part of a successful Romney ticket this year).
Presumably, for Virginia, withdrawing from the ASMFC would be a prelude to disregarding its rules. If Virginia does ignore the ASMFC’s menhaden regulations, the commission would have no choice but to find the state “out of compliance.” Unless Virginia changed its tune, the case would go to the U.S. secretary of commerce, who would have the authority to shut down the menhaden fishery altogether if negotiations failed to resolve the issue. Because of all the mandatory delays and timetables involved, the process could drag on for months or years, only to end in an eleventh-hour compromise. For Omega Protein, it could be the ultimate delay game, allowing the company to fish to its heart’s content while it waits for more favorable science and continues lobbying.
But there is another possible scenario, one even more dire. If Virginia refuses to comply with the secretary of commerce, the matter could end up in federal court. This would not only entail further delays, with the possibility of a lengthy appeals process; at a time when constitutional arguments for states’ rights are gaining traction, this disagreement over the lowly menhaden could be grounds for questioning the constitutionality of the federal government’s power to interfere with the state of Virginia and its ability to manage its own natural resources.
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