Ocean Harvesters and Omega Protein oppose the third Petition filed in fewer than two years by two out-of-state entities, the Chesapeake Legal Alliance and the Southern Maryland Recreational Fishing Organization (“Petitioners”).  These petitioners ask the VMRC for relief that is substantively indistinguishable from that requested in the petition VMRC rejected just one year ago.  As then, Petitioners request relief which is largely unavailable and is certainly unnecessary.  The VMRC should deny this petition as well.

 

The major action requested is to either totally or mostly exclude just the menhaden reduction fleet from the Chesapeake Bay and Virginia waters.  Petitioners also seek to create a one-mile exclusion zone along the coast, a measure that excludes the bait sector and ignores the Memorandum of Agreement which the reduction sector and Commission signed.  Further, having been informed last time that the VMRC lacks the resources to fund studies proposed by the Virginia Institute of Marine Science (“VIMS”), Petitioners demand that the Commission lobby the General Assembly for funds.  Finally, stretching a provision of law that allows the VMRC to request data beyond its legal limits, they request the VMRC to force Ocean Harvesters to fund VIMS research and install vessel monitoring systems.

 

The facts are the menhaden fishery remains healthy and conservatively managed.  The reduction fishery is operating at its lowest sustained levels since at least the 1950s.  In fact, in 1956, there were four reduction plants operating in Virginia and seven more in North Carolina whose vessels fished at least part of the year in the Chesapeake Bay and Virginia waters.[1]  Coastwide, in 1956, a total of 24 reduction facilities were in operation and the fleet numbered 149 vessels.  Collectively, the fishery landed 712,100 metric tons (“mt”) of menhaden that year.  Today, there is one plant and six vessels catching a third of harvest from the Bay compared to the 1980s. 

 

More importantly, there is no new information relevant to the Commission’s management identified in the Petition.  There is, however, a new Atlantic menhaden stock assessment underway to provide guidance for management in 2026 and beyond.  Similarly, the ASMFC’s Menhaden Board has formed a work group to look at any connections between the fishery and osprey breeding success.  Petitioners want to short circuit all these processes and have the VMRC make decisions on legally and scientifically unsupportable bases.

 

1. Petitioners Do Not Utilize the Best Available Information

 

Petitioners repeatedly claim that the VMRC’s decisions are required to be guided by the “best scientific, economic, biological and sociological information available.”  Va. Code § 28.2-203(2).  At every turn, however, they ask the Commission to ignore the best scientific information and, instead, implement arbitrary measures that have no basis in science or data. 

 

One prominent example is the discussion of the academic debate over the proper “natural mortality” rate (or “M”) for menhaden for use in the stock assessment.  Petitioners cite an “in press” academic paper that takes a different view than the peer-reviewed decision of the governmental scientific experts on the appropriate natural M for the stock.  On that paper, and an alleged statement made by Dr. Rob Latour,^[2] Petitioners ask Commissioners to ignore the current best scientific information available for menhaden management; that is, the 2022 stock assessment. 

 

In fact, a subgroup of the ASMFC’s Menhaden Stock Assessment Subcommittee is now reviewing the science underlying the cited study undertaken by Drs. Ault and Luo.  Ultimately, those scientists will determine the appropriate M and incorporate that into the baseline assessment that will be finalized this year.^[3]  That assessment will become the best scientific information for setting appropriate catch levels for the next few years.  Meanwhile, despite Petitioners’ fervent belief that VMRC should base management decisions based on a single paper that is in press, doing so would not be acting based on the best scientific information available.

 

Similarly, the call to eliminate or vastly constrain the reduction fishery in the Chesapeake Bay is based on nothing more than Petitioners’ feeling that current levels of such harvests are too high (while not bothering to explain why harvest levels of three, four, or even, perhaps, five times greater in the past did not cause the harms they now allege from today’s fishery).  While it is true that the Chesapeake Bay reduction fishery cap is not based on Bay-specific reference points, it has always been empirically based. 

 

Thus, the original 2006 cap was instituted as a precautionary measure to keep the fishery from expanding while the potential for “localized depletion” was studied.  The cap of 109,020 mt was based on average catch for the preceding five years.  As part of Amendment 2 to the Menhaden ISFMP, the cap was reduced by 20 percent to 87,216 mt.  That reduction mirrored the 20 percent cut to average catch levels of the preceding three years (which were used to set the first quota on the fishery) based on the subsequently discovered inaccurate assumption that overfishing of the menhaden resource had been occurring.  Finally, the cap was lowered again in 2017 as part of Amendment 3 in order to reallocate more quota to New England states.  This cut, like the first, was based on recent average catches.

 

In sum, at each step, the Chesapeake Bay reduction fishery catch cap was based on data – either average catches or an assessment of the resource.  Petitioners ask the VMRC to arbitrarily set the cap, either to 0 or 25 percent of current levels, based purely on nothing other than, perhaps, a desire to fatally effect the reduction sector.  While precautionary management actions can be justified, they must have an empirical basis (e.g., freezing the footprint of the fishery).

 

2. 2023 Fishery Performance is Unrelated to Resource Conditions

 

Petitioners make much of the fact that Ocean Harvesters’ catches in the Chesapeake Bay and coastwide in 2023 were lower than 2022 harvest levels.  Pet. at 3.  This, along with the lack of catches in the “incidental catch” fishery is given as “evidence of the scarcity of menhaden in the Bay and along the Atlantic coast.”  Id.  They are not.

 

First of all, reducing the prevalence of harvest in the “incidental catch” fishery – which allows targeted harvesting of 6,000 pounds of menhaden per day – was a goal of Amendment 3.  This was accomplished both by taking quota share from Virginia and “reallocating” to other, mostly New England, states[4] and by raising the quota.  The fact that this loophole was not utilized in 2023 was a feature of the Amendment, not a bug.

 

Secondly, Petitioners once again fail to recognize the management, environmental, and political factors that govern the menhaden reduction fishery.  For the Commissioner’s benefit, here are the reasons the fishery underperformed in 2023:

 

1. Self-Restraint

After the Bay cap was set at ~87,000 mt in Amendment 2, Omega Protein/Ocean Harvesters made a conscious decision to reduce its footprint in the Chesapeake Bay to minimize user conflicts by not harvesting the full allowance.  Rather than getting credit for this forbearance, the industry’s opponents succeeded in lobbying the ASMFC to further reduce the cap in Amendment 3.

 

Despite this experience, in 2023, the Companies signed a Memorandum of Agreement (“MOA”) with the VMRC under which it agreed its vessels would remain one mile offshore of perhaps the most productive fishing grounds in the Bay.  Again, the purpose was to minimize user conflicts and address concerns of advocates, like the petitioners.  And as with its prior efforts to assuage concerns, the industry’s critics keep demanding more.

 

The MOA had a significant impact on the fishery’s performance in 2023.  In 2022, the reduction fleet caught a very large percentage of our fish in this area.  In 2023, those areas were once again very productive, as bait purse seiners, who elected not to sign the MOA, discovered.  Fortunately, in 2024, significant biomass of menhaden congregated in the middle and western parts of the lower Bay, as well as Virginia’s northern portion of the Bay nearer Reedville.  As the tables below show, that enable the reduction fleet to recover catch lost in 2023.  

 

Table 1:

 

Menhaden are a highly mobile fish that follow food and favorable environmental conditions.  No two years are alike, but the areas of the lower eastern part of the Bay which were voluntarily abandoned by the fleet in 2023, has historically been the best fishing grounds.  Sacrificing these areas means there will likely be some years in the future that the fishery will not catch the full Bay quota unless and until Ocean Harvesters chooses to exit this MOA.  

 

2. Environmental and Other Factors

 

Another important factor at play in 2023 was the number of lost fishing days due to weather events, along with other factors.  Below in Table 2 are data on lost fishing days for the past four years and the reasons the company’s vessels have been unable to fish (leave the dock).  The column labeled “Bay Cap” represents days that reduction vessels cannot conduct operations in the Atlantic due to high seas, but also days that cannot be fished inside the Bay because the Bay cap has been effectively reached.

 

Table 2:  Lost Fishing Days

 

By far, 2023 was the year in which most fishing days were lost to weather, about 40 percent higher than the four-year average.  This increase in poor weather conditions severely impacted Ocean Harvesters’ ability to catch fish both inside and outside the Bay during the fishing season.  The figures for 2024 help demonstrate how impractical it is to simply relocate the fishery to outside the Chesapeake Bay.  Oceanic conditions are simply too unpredictable to allow for consistent fishing opportunities.  This problem would only be exacerbated by the regulations Petitioners seek.

 

3. The Influence of Management and Voluntary Efforts on Catch and Areas of Operation

 

Petitioners allege that Ocean Harvesters’ “spotter planes are recently traveling farther to ?nd menhaden schools,” Pet. at 3, again as “evidence” that menhaden are depleted.  In fact, while the National Marine Fisheries Service (“NMFS) can say whether or not catch is increasing in the northern range of the fishery—the Companies suspect it may have increased slightly in recent years—the reasons have nothing to do with menhaden’s stock status.  Rather, the basic fact is that if the fishery loses access to some areas, such as with the one-mile voluntary buffer, it must look to other areas that, historically, may not be as productive or economical.  Furthermore, in 2023, the coastwide quota increased while the Chesapeake Bay cap remained the same, leading to similar result.  Finally, there are market factors that can play a role, as the older menhaden in the northern part of the fleet’s range are larger and provide better yield.

 

Fishermen fish where the fish are. The trend, which Petitioners want to vastly accelerate, has been increasing restraints on amount of menhaden available in areas that are both productive and economic to operate.  Bad weather, lost fishing grounds, and even those “fishable” days when the fish are not visible, all present challenges to fishermen.  This is why the Companies are not being hyperbolic when they say that adoption of the proposed regulations are an existential threat to the continued operation of this 147-year-old industry.  It is not the health of the stock, but the constraints on the fishery that account for a poor 2023.

 

3. VMRC Lacks the Power to Require Industry-Funded Science and Monitoring

 

Petitioners claim the Commission has authority to require Ocean Harvesters to pay half of any research costs and to adopt electronic reporting and vessel monitoring systems.  Pet. at 3.  For this proposition they cite to a law which states: “The Commission may collect from any source any fisheries data and information necessary to develop fishery management plans and to evaluate management options.”  Va. Code § 28.2-204(A).  The language of this section, by its terms, does not provide authority for the Commission to either require payments for scientific studies or purchases and use of electronic reporting or monitoring systems.

 

The law is very specific as to what types of information the VMRC is authorized to collect:

 

1. Statistics for catch and fishing efforts by species from commercial and recreational fishermen;

2. Statistics from fish processors and dealers;

3. Types of gear and equipment used;

4. Areas in which fishing has been conducted;

5. Landing places; and

6. The estimated capacity of fish processing facilities and the actual amount of fish processed at these facilities.

 

Id.  Nothing in this law purports to or, in fact, does authorize the Commission to expend financial resources to create new information – particularly of a kind not listed – or purchase equipment for the purposes of providing such information in a particular manner.

 

Furthermore, Petitioners insist that any such data collected on the reduction fishery be subject to “public reporting.”  Pet. at 3.  This, however, is something the law does not allow.  “The information collected or reported shall not be disclosed in any manner which would permit identification of any person, firm, corporation or vessel, except when required by court order. The Commission may prescribe the form and manner in which this information is reported.”  Id. § (C).

 

            These requests, numbered 4 and 5 in the Petition, must be denied.

 

4. There is a Legally Credible Argument that the VMRC Lacks Authority to Create New Exclusion Zones

 

In 2020, the General Assembly transferred much regulatory authority over the Atlantic menhaden fishery to the Commission.  It appears, however, that the legislature did not grant the VMRC the power to change or expand the areas in which the reduction fishery is prohibiting from operating by statute.  See Va. Code, § 28.2-409.  Thus, the major relief Petitioners (and others) have asked for, and undoubtedly will continue to ask for – the closure of the Chesapeake Bay to reduction fishing – may well be beyond the Commission’s authority.

 

In 2020, the General Assembly voted to transfer authority for implementing ASMFC menhaden management recommendations from the legislature to the VMRC.  That measure put this fishery on a similar footing with other Commonwealth fisheries under the jurisdiction of the VMRC.  Importantly, however, the VMRC was not given plenary power over all aspects of the menhaden fishery. 

 

The original bills, SB 791/HB 1448, would have granted the VMRC regulatory authority to alter provisions in § 28.2-409, relating to areas in which either all or larger purse seine vessels would be prohibited from operating, as well as § 28.2-410, setting forth the menhaden fishing season and minimum mesh sizes.  Specifically, these bills as introduced inserted the clause “or as otherwise provided by regulation” in the first sentence of each section, thereby vesting in VMRC the power to alter these provisions.

 

However, during the 2020 regular session, these bills were amended to remove language allowing for regulatory changes to existing closed fishing areas created by statute. 

 

As explained by then Secretary of Natural Resources Matt Strickler during the Committee hearing, “the original version of the bill included language that said, except as provided in this provision or as otherwise provided by regulation.  We’ve stricken that provision and that’s just to ensure that the sections of code that outlines the places where Menhaden fishing is and is not allowed is not something that is modified by this bill.” 

 

Thus, it would be fruitful and protective of the Commission’s limited staff and time resources to have counsel confirm this understanding of the relevant legal authorities.

 

# # # #

 

Petitioners want to short circuit ongoing scientific and management process, encouraging the Commission to act on the personal preferences of some, rather than science and data.  The fact is that the current stock assessment is near completion.  The Atlantic Menhaden Stock Assessment Subcommittee has formed a subgroup to assess Dr. Ault’s and Luo’s research and will make a determination as to the best estimate of M.  That determination, once adopted by the ASMFC’s Menhaden Board, will constitute the best available science.  In accordance with the authorities governing both the ASMFC and VMRC, that determination – and not the musings of recreational fishing advocates and their lawyers – will be used to guide recommendations for appropriate catch levels for the next one, two, or three years.

 

As such, the Companies respectfully request that the VMRC deny this Petition.

 

Sincerely,

 

/s/ Montgomery Deihl                                     /s/ John Held                          

Chief Executive Officer                                  Executive Vice President-General Counsel 

Ocean Harvesters                                            Omega Protein, Inc.