JCAA Testomony Before Congressional Subcommittee on Resources

Presented December 12, 1995

By Thomas Fote, Legislative Chairman.

(from Jersey Coast Anglers Association -December 1995 / January 1996 Newsletter)

While attending the congressional hearings on HR 2655, with other members of the recreational and commercial fishing establishments, I was not surprised to hear a spokesman testifying on behalf of commercial fishermen of New Jersey request a 500 lb. per trip bycatch allowance of striped bass in EEZ waters. They assured the committee that this would only be a bycatch taken incidentally while fishing for other species. I believe we’ve heard that somewhere, before. Lets look at the history on the subject of bycatch allowances.

In 1939, when New Jersey passed its first law prohibiting the direct netting of striped bass in state waters, they left in a provision that allowed for a bycatch of striped bass in other legal fisheries. This provision was totally unenforceable and left the door open for a directed fishery. The most flagrant abuses took place in 1950 and 1951, when an unusually large body of striped bass wintered over in the Toms River in Ocean County. These fish became the target for gillnetters who brought their gear from the Hudson River under the guise of targeting shad and river herring in the Toms River, a river known to no significant run of either species. In those two years, tractor trailer loads of striped bass were shipped from the river to market, destroying this river fishery for more than 10 years. I asked one of the commercial fishermen who was heavily involved in the Toms River fishery several years after he retired, "How many shad and herring did you catch during those years?" He replied with a laugh, "Tom, I tried like hell, but in two years I didn’t catch one shad or herring, but I caught a hell-of-a lot of bass!" He made a hell of a lot of money circumventing the intent of the law because of the bycatch provision that was written into it to accommodate commercial fishermen.

This act so angered fishermen in this state that in 1952, they rallied to force the legislature to enact a law that prohibited any bycatch of striped bass to be retained and sold. Some of the activist fishermen who participated in the drive to enact this law are around today. Gentlemen like Joe Platoni, Bill Feinberg and Henry Schaefer, who have made it a point to remind us all that when there is a loophole in a fisheries law, and a bycatch provision is the biggest loophole of them all, there are plenty of people ready to take advantage of it at the expense of the resource for personal profit. I don’t believe there should be loopholes on the commercial or recreational side of regulations and I support the law that prohibits recreational fishermen from retaining a bass if it is bleeding and injured. If you let anglers retain gut-hooked fish, there are people who will be sure that every fish they catch is gut-hooked and bleeding.

If we lived in a perfect world and everybody abided by the rules and regulations, we could probably write more lenient laws that would prevent any fish from being wasted. Many of us feel that for the small number of fish killed as bycatch in this fishery, we are saving a far greater number that would fall prey to commercial harvest if a bycatch provision were part of the law. It is simply too tempting for a commercial fishermen who has just worked the Mudhole for a catch of relatively low-value whiting to simply pass by a school of high value striped bass on his way back to the dock. The impulse will be to set a net on the school, cull out the most valuable fish and discard the rest dead overboard, because there’s money in it. If he gets caught discarding striped bass, all he has to say is it was bycatch and I was actually pursuing something else. There’s no way to enforce a bycatch provision and if legislators think this scenario won’t take place, they have not learned from the mistakes of the past and are very naive.

Congressional Testimony on H.R. 2655

The following is the testimony presented on behalf of JCAA at the committee hearing.

I would like to thank Chairman James Saxton for introducing H.R. 2655 and for the timely manner in which he convened this hearing. The issue addressed in this bill is important not only to the people of New Jersey but to people in all the states throughout the migratory range of the striped bass. I would also like to thank Congressman Frank Pallone for cosponsoring the bill. While I have this opportunity, I would also like to thank Chairman Saxton and the full Committee, especially Congressman Wayne Gilchrest, for the excellent job they did on the re-authorization of the Magnuson Act.

My name is Tom Fote and I am the one of the three Commissioners representing the state of New Jersey on the Atlantic States Marine Fisheries Commission (ASMFC). I am also the Legislative Chairman of the Jersey Coast Anglers Association (JCAA), which represents 80 fishing clubs in New Jersey and surrounding states. This is one time I can testify wearing both hats because both New Jersey’s delegation to the ASMFC and the membership of JCAA are in total agreement. New Jersey’s three Commissioners, Senator Louis Bassano, Division of Fish & Game director, Robert McDowell and I voted unanimously in opposition of the reopening the Exclusive Economic Zone (EZZ) when this was proposed at an ASMFC Striped Bass Board Meeting. The Division of Fish & Game submitted written comments to the National Marine Fisheries Service (NMFS) advising them that they would not support the reopening of the EEZ to resumed striped bass harvesting. The Division concerns were that they would not be able to enforce their laws and loop holes would be created.

Senator Louis Bassano is sorry he could not be here in person due to his legislative duties in New Jersey, but asked me to convey his appreciation to Chairman Saxton and the subcommittee for the fine job they are doing.

The comments submitted during public hearings held by NMFS in the states of Massachusetts, New York, New Jersey, Virginia and Connecticut demonstrated overwhelming opposition to the reopening of the EEZ at this time. The fishermen of Maine and Pennsylvania, when made aware of the proposal to reopen the EEZ, requested public hearings in their states to voice opposition to this change in management. They were denied the opportunity to participate. There was plenty of Pennsylvania representation at the New Jersey public hearings, with all present speaking in opposition. The ASMFC Striped Bass Board voted on December 7 the EEZ should not be open until we can fish at full fishery and until NMFS can assured the that all the legal problems are addressed.

In this testimony, I will limit my comments to only three reasons that clearly detail why it is premature to reopen the EEZ at this stage of the recovery of the striped bass fishery.

1) Lack of federal enforcement of striped bass regulations.

ASMFC member states proved that they could work together to rebuild depleted striped bass stocks under the cooperative process established by the Striped Bass Conservation Act. They developed and instituted regulations that they could monitor and enforce within state boundaries. Member states have expended considerable time and money on law enforcement in recent years, to ensure that these regulations are followed. In November of this year, I actually had the opportunity to fish for striped bass seven times on the beach near my home and my vehicle was inspected on one of those days by a conservation officer to insure that I was in compliance with the laws regulating the fishery. When I asked the C.O. if he had written any summons that day, he remarked that he had cited three fishermen that morning and had intercepted approximately 500 that day looking specifically for striped bass violations.

Enforcement in state waters has been strong and sustained, in stark contrast to the total lack of enforcement in the waters of the EEZ. There has been a moratorium on the harvest of striped bass in the EEZ for more than five years and during that period, the NMFS has written only one summons for illegal possession of striped bass in federal waters. I have not heard of a single instance of a boat being intercepted in the EEZ off New Jersey for the possession of striped bass, yet we know it occurs every year. I have seen the names of individuals that caught fish on offshore lumps in the EZZ in the fishing reports section of local newspapers. After reading these reports, I would call the outdoor writers responsible for the columns, remind them of the moratorium and ask them to inform their readers again. When asked if they had been contacted by any one from NMFS to remind them of the closure, the answer was always "no."

Bruce Freeman, then representing New Jersey at the ASMFC, and I always felt there was no law enforcement effort by federal authorities in the EEZ concerning striped bass regulations. We would ask the NMFS representative at Striped Bass Board Meetings about enforcement efforts and if the service had written any summons for striped bass violations that year. The answer would always be the same NO! One year, NMFS reported that they had finally written a summons and some of Board members laughed, since lack of enforcement of the regulations had become a standing joke. However lack of enforcement just isn’t funny!

Please understand that I am not pointing a finger at NMFS or the Coast Guard for the low priority on the enforcement of striped bass regulations in federal waters. They have an enormous enforcement responsibility for species ranging from summer flounder to the pelagics, and striped bass is the lowest priority on their list. The Coast Guard must also deal with search and rescue and other missions. In an ideal world, we should put more money into enforcement of fisheries laws, but with reduced funding, enforcement efforts will continue to decline in the coming years. I was made aware of a recent Coast Guard notice that indicated there would be even less enforcement effort in 1997 and beyond for fisheries laws.

2) Protection of Historical Fisheries

Striped bass has always been an inshore fishery, with the overwhelming majority of the catch, both commercial and recreational, coming from within state waters. Historically, the harvest was 90% recreational and 10% commercial outside of Chesapeake Bay. The traditional recreational fishery was accomplished from the beach or in estuary waters, where the average user was a blue collar or low income family member who could participate in the fishery with a small expenditure in money and manage to put a high protein food source on the table as a result of their fishing efforts.

The commercial fishery was comprised of small, independent watermen working with small boats and utilizing gill nets, pound nets and hook and line. This was never a big boat, offshore fishery. By reopening the EEZ with the restrictions presently in place on almost every other commercially viable species, and with striped bass stocks continuing to rebound, the pressure to expand this into an offshore fishery using non-traditional gear will be extreme, with even great problems as a result. Keep in mind that the least damaging methods of commercially harvesting striped bass are tended gill nets, pound nets and hook and line. Once the fishery is open offshore, other gear types that generate large volumes of bycatch and discards will move into the fishery. This will open the door to vastly increased non-harvest mortality, which will have an extremely negative impact on the spawning stock biomass and on the traditional user groups.

3) Insuring the public of striped bass that are safe to consume

As a commissioner on the ASMFC, my first concern is the protection and sustainability of our public resource marine fisheries. But there is the added consideration of being sure the public is not consuming fish that are contaminated with dangerous pollutants. I take this part of my job very seriously. We all should. When we discuss striped bass harvest and consumption, we must temper our discussion with the knowledge that not all striped bass are considered safe to eat in large quantities and fish from certain waters are considered unsafe to consume at all. It is our responsibility to insure the public the safest possible fish for consumption and to not back away from the unpleasant task of making this an important part of any management plan.

The recreational striped bass fisherman is, without a doubt, consuming the greatest volume of striped bass. Therefore, it is the recreational fishermen who should be given the greatest opportunity to retain fish that are safe to eat. Unfortunately, under the present management regime, just the opposite is taking place. The recovery plan for striped bass forces sport fishermen to only harvest larger fish, the very fish that can be carrying the highest volume of dangerous pollutants, while special considerations are given to commercial harvesters to assure the fish they send to market are safe for consumption. One of my goals in the recovery of this fishery was to continue to reduce recreational size limits as the fishery recovers, so sport fishermen, the very people who consume the greatest amount of these fish, can eat the least contaminated members of the population.

The necessity to accommodate a new offshore fishery, a fishery that will be based on striped bass exclusively over 28 inches, will make it impossible to continue to reduce size limits for the historic user groups. The states that presently have PCB advisories in place for striped bass have instituted special commercial size limits to make sure they can control the fish going to market and assure the public that they fall within federally mandated PCB levels. The traditional subsistence recreational fishermen will continue to be forced to consume striped bass that are questionable with regard to PCB content, because present size limits mandated do not allow him to retain smaller, safer fish.

At the same time, it will make it harder to control commercially harvested striped bass going to market. Be advised that areas with the highest level of contamination, areas like western Long Island, Hudson River, Raritan Bay and Delaware Bay, are presently closed completely to the commercial harvest of striped bass or are regulated by fish size to prevent these fish from being sold to unsuspecting consumers at fish markets and in restaurants. If the EEZ is reopened, there is no control to assure these fish are not going to market, since they all swim through federal waters during the course of their seasonal migrations, making them fair game for commercial harvest. Is NMFS and the FDA willing to post PCB advisories in every fish market and restaurant to warn the public of the possible health risks of consuming striped bass? Remember that pregnant women and young children are advised to NOT consume any amount of striped bass whatsoever from specific waters!

If federal waters are to be reopened, the federal government must mount a comprehensive study of PCB contamination in federal waters, just as the federal government required of the states. The federal government can not exempt itself from the very regulations it imposes on the states for protecting the public’s health.

In conclusion, it has been said many times by many people, "if it ain’t broke, don’t fix it!" At present, there is no problem filling any state’s allowable quota of striped bass from within state waters. There is absolutely no justifiable reason to reopen the EEZ to striped bass harvest with the resulting problems to the fishery and with the public health risks it will generate. HR 2655 and its five year extension of the moratorium in federal waters, will provide the time necessary to explore the problems and find suitable solutions for them.

[Contents] [Top]