by T. F. Sayles
illustration by Stephanie Carter

At the August 16 meeting of the Menhaden Management Board of the Atlantic States Marine Fisheries Commission (ASMFC), nobody mentioned the elephant in the room. The board's 40-some members, representing the governments and fishery regulators of 15 states, calmly and politely discussed the matter before them: a proposal from Virginia Governor Tim Kaine to cap the annual Chesapeake purse net harvest of the small, herring-like fish at 109,200 metric tons for the next five years. But nobody in the crowded hotel meeting room in Arlington, Va.--not the commissioners, not the scientists or state senators, not the Greenpeace activists, not Virginia Secretary of Natural Resources L. Preston Bryant (on hand to present the proposal on Kaine's behalf)--not a single person mentioned that the ASMFC's menhaden board had already ruled, atlast year's August meeting, that the menhaden harvest should be capped.

As procedural nonsequitors go, it was a true pachyderm, but no one acknowledged it. No one pointed out that last year's decision should have been followed by the Virginia General Assembly's enacting a law to bring the state into compliance with the ASMFC rule--not by a counterproposal from Governor Kaine nearly a year later, and one that had no force of law. That is, no one mentioned that whether or not the board accepted Kaine's proposal, they were right back where they started last August: waiting for the Virginia legislature to adopt the harvest cap as law.

The fisheries commission cannot compel a member state to comply with its rulings, but it can force an issue--by referring it to the U.S. Department of Commerce, which can take legal action against an uncooperative state, or even close a fishery. (Virginia, it should be noted, is the only state affected by the proposed harvest cap on menhaden, because it's the only one that still allows industrial-scale harvesting of that fish in its waters. And Virginia's menhaden fishery is the only one for which regulations must be approved by the General Assembly; all other fisheries in the commonwealth are the province of the Virginia Marine Resources Commission, VMRC.)

By early spring of this year, it appeared that the ASMFC might indeed have to send the menhaden matter to Washington, because Virginia's legislators failed to pass the necessary law. Four separate bills were drafted for the legislature's winter session; none of the bills made it further than a subcommittee vote.

There was, however, one other possibility; according to a relatively new provision in the state code, it appeared the governor might have the authority to pass the ASMFC ruling into law by proclamation if the General Assembly failed to pass its own law--but only if the legislature was not in session, and only if he did so at least 30 days before opening day of the affected fishery (May 1 for menhaden). The General Assembly adjourned on March 11--but reconvened in special session just 16 days later, before Kaine could get a clear ruling from his legal advisers. So that particular opportunity slipped through his fingers. (The General Assembly, by the way, wasstillin session as this issue went to press in late August--in recess, but still technically in session, grappling with unresolved budget and transportation issues.) That, however, was not the end of the affair for Governor Kaine. On July 31 of this year--two weeks before the ASMFC's menhaden board was scheduled to meet in Arlington and a month after the deadline the board had given Virginia to pledge compliance to the harvest cap--Kaine held a press conference at First Landing State Park in Virginia Beach to announce, lo and behold, a "proposal to cap menhaden harvests." Naturally he did not characterize it as a long-overdue counteroffer to the ASMFC's 2005 ruling, which is in fact what it was. Naturally he didn't mention any of the messy business about noncompliance and federal intervention, or that the matter still requires action by the General Assembly. He simply gave the ASMFC back its own ruling, with a few modifications: The cap would be a few thousand tons higher than the 105,800 recommended by the menhaden board, and it would allow for an "underage credit." That is, if the annual Bay harvest came in under the proposed 109,200 tons in a given year, the cap would be raised by the same amount the following year, up to a "hard cap" of 122,740 tons.

And the menhaden board didn't bat an eyelash--at least not publicly, not in that crowded hotel meeting room on August 16. What had been approved a year earlier as Addendum II to Amendment 1 to the Interstate Fishery Management Plan for Atlantic Menhaden was now passed as Addendum III to Amendment 1, etc., etc.--subject, as before, to a seven-week public comment period, through October 6, and requiring, as before, enactment into law by the Virginia legislature.

If the wordmenhadenrings a bell for you, perhaps it's because you remember the Menhaden Chanteymen of Beaufort, N.C. In the early 1990s, they, along with a similar group of retired fishermen in Virginia, revived the art of early-20th-century fishing work songs--rhythmic chanteys sung to help coordinate the backbreaking job of hauling in giant purse nets full of menhaden, thousands of fish at a time.

It's also possible, though less likely, that you remember another story about menhaden from the 1990s: that the Chesapeake population of this small filter-feeding fish (Brevoortia tyrannus, a member of the herring family, also known as a pogy, bunker and fatback, among other names) had begun to drop precipitously--even though the species' Atlantic coast population numbers and "spawning stock biomass" appeared to remain healthy. At first, only fishermen and scientists noticed the falling Bay numbers--the former for obvious reasons, the latter because of annual beach seine surveys that date back to 1959.

After several years of prodding from environmentalists and recreational fishermen, the ASMFC began in 2000 and 2001 to consider measures to limit the menhaden harvest--specifically the large-scale "reduction" fishery, so called because it reduces the catch to its components, primarily fish oil, fertilizer and animal feed (and more recently the wildly popular omega-3 fatty acids, believed to reduce heart disease and increase "good cholesterol" levels). And nowadays the menhaden reduction fishery is just one company: Omega Protein, based in Houston and operating locally in Reedville, Va.

In 2004, according to Omega, the company harvested 95,300 metric tons (roughly 210 million pounds) of menhaden from the Bay. By contrast, in the 1970s, '80s and early '90s, the Bay reduction harvest was often three times that amount--averaging well over half a billion pounds a year in that period, according to landings statistics from the National Marine Fisheries Service. Using spotter planes to find the fish (which swim in vast schools, often near the surface) and smaller boats to position giant nets, the purse seiners surround the school and then draw in the "purse strings," capturing tens of thousands of fish in a single haul.

Menhaden is also a popular baitfish, and serving that market are countless pound nets in Maryland and Virginia (accounting for about five percent of last year's total harvest), as well as a number of smaller purse seine ("snapper rig") fishing boats operating in Virginia and New Jersey (roughly 15 percent of the harvest). But only Virginia still permits the large-scale purse seine fishing that makes up the other 80 percent of the annual catch. And that's the arithmetic that makes Omega Protein the villain in the eyes of environmentalists, who worry about the loss of a key filter feeder and forage fish in the Bay, and recreational fishermen, who value menhaden as a nutritional staple for their beloved rockfish (aka striped bass).

The first wave of anti-reduction sentiment did not persuade the ASMFC to impose harvest limits when it updated the fishery management plan for menhaden in 2001. The commission concluded that because the most recent stock assessments showed the coastal menhaden population to be healthy, and because the reduction fishery was continuing to shrink, harvest limits were not called for. It did, however, put measures in place--including a more conservative "overfishing definition" and more regular stock assessments--that would allow the commission to react more quickly if the menhaden situation were to worsen.

Over the next few years, the movement against reduction fishing in the Bay gained considerable momentum. The Chesapeake Bay Foundation, Coastal Conservation Association, the National Coalition for Marine Conservation and three other environmental groups formed an alliance called Menhaden Matter, which studied the available menhaden data and, in late 2004, published a 20-page report calling menhaden critical to the overall health of the Bay and recommending that the ASMFC limit the Bay harvest of menhaden and shorten the fishing season. Pointing to the persistent deficit of young menhaden, the increasing proportion of the total reduction harvest coming from the Bay, and malnutrition and disease in rockfish, the group urged the commission, which would be considering the matter again at its spring 2005 meeting, to adopt measures to protect the menhaden's role in the Bay as a filter feeder and forage fish.

Meanwhile, recreational fishermen, with the Maryland Saltwater Sportfishermen's Association (MSSA) at the vanguard, kept up their uncompromising attack--calling for a flat-out ban on reduction fishing in the Bay. The lack of menhaden, they insist, is precisely why the Bay's rockfish, numerous as they may be, are undernourished and therefore more susceptible to mycobacteriosis, a disease that may be present, according to a 2001 study, in as many as 70 percent of Chesapeake stripers.

Omega and its advocates, of course, say the anglers have it exactly backwards. The problem isn't that the reduction fishery is catching too many menhaden and starving the rockfish; it's that there are too many rockfish, and they're eating all the Bay's menhaden. Furthermore, they say, the overall menhaden population is so large that the reduction fishery doesn't come close to threatening it. "Even with modern fishing technology, including sonar and spotter planes, commercial fishermen are still only able to annually harvest two out of every thousand menhaden swimming in the wild," wrote the Menhaden Resource Council, an organization formed to advocate for the reduction fishery.

While that may be true in the context of the entire menhaden population, say fisheries scientists, it's not an accurate portrayal of the situation in the Chesapeake itself, where fishing pressure is very likely part of the problem--though they concede that rockfish predation may be the other part. And there may indeed be other factors--a slight change in climate or water temperature, a small shift in ocean currents, an increase in larval predation, poor water quality, etc.--that is suppressing the number of young menhaden entering the Bay in the first place.

By the summer of 2005 the ASMFC had come around to the conservationists' way of thinking, and in August of that year they finally gave menhaden defenders what they had been clamoring for since the late 1990s--a cap on the Bay reduction fishery. The board's

Addendum II to the menhaden management plan capped the Bay reduction fishery at 105,800 metric tons a year (a number based on the average harvest of the five previous years, 2000 through 2004). While calling the cap a precautionary measure and repeating the board's often quoted assertion that menhaden stock remained "healthy coastwide," Amendment II acknowledged the "potential for localized depletion . . . as a result of [the] concentrated harvest."

In addition to the cap, the plan amendment also incorporated the research priorities recommended by the ASMFC's Atlantic Menhaden Technical Committee: (1) Use "lidar" (like radar, but with light waves instead of radio waves) surveys to determine the abundance of menhaden in the Bay itself, (2) evaluate the stomach contents of predator fish to determine the level of menhaden "removal" by predation, (3) employ various tagging regimes to determine the "exchange rates" (comings and goings) of Bay and coastal menhaden, and (4) use trawl surveys to evaluate recruitment of larvae and early juvenile menhaden into the estuary.

Menhaden Matter applauded the commission for taking a reasonable and necessary step to protect the menhaden. The MSSA conceded that the cap was better than nothing but continued to argue for a complete moratorium on the reduction fishery."

Also calling for an outright morator-ium after the August 2005 ruling was Greenpeace USA, which had entered the fray earlier in the year and in fact had staged a July protest in Reedville, Va.--lining up offshore in dinghies and holding a 20-foot yellow banner that said, Omega: Factory Fishing is Overkill.

Greenpeace activists were also on hand at this summer's ASMFC meeting in Arlington, Va., all wearing straw cowboy hats with placards that said Don't Mess With the Chesapeake Bay--and, when A. C. Carpenter, chairman of the menhaden board, invited public comment, they expressed their outrage that the ASMFC had not done everything it could to force Virginia and Omega Protein to abide by the 2005 harvest cap.

And that was as close as anyone came to mentioning the elephant in the room. After acknowledging requests for public comment periods in Virginia and Maryland, Carpenter gaveled the meeting closed--and that, for the moment, was that. Addendum II was now Addendum III, and the process was back at square one.

There was, however, one important difference, a difference that had come to light only when a member of the menhaden board pointed out to Secretary Bryant that 2006, the putative first year of the five-year harvest cap, was nearly over, and that the five-year cap would soon be a four-year cap. That, Bryant assured him, was not a problem, because Omega Protein had agreed to abide by the governor's proposal immediately. "If they get to one hundred nine [thousand tons]," he said, "they will exit the Bay. They've agreed to that." And with that the elephant in the room became a bit more transparent.