Chairman Wise reminded the Council that New York's 2007 recreational fishing regulations for fluke had been arrived at late and needed to be implemented through emergency rule-making.  At the time, the then-Director of Marine Resources for DEC, Gordon Colvin, suggested that fluke management issues were likely to continue to be troublesome and problematic.  He suggested asked that the Council establish a subcommittee/work group to develop and recommend approaches to fluke management that would anticipate issues before they became critical. Mr. Wise reported that the initial meeting of this work group had been held that morning.  Members of the subcommittee are:  Bob Busby, Steve Heins, Dennis Kanyuk (substitute was Kathy Heinlein-Risi at the meeting), Tony Somma, Chris Squeri, Alice Weber, Bill Wise and Charlie Witek. 

The work group developed the following set of preliminary objectives that should characterize effective fluke management measures in New York:

1. effectively constrain fishing mortality as required under the Interstate Fishery Management Plan for Fluke
2. be fair and equitable to the several sectors of the fluke fishery; recognize that not all sectors require/desire the same things
3. be readily enforceable
4. to the extent possible, be stable; perhaps come up with multi-year regulations that don't have to be amended every year.
5. be promulgated in a timely fashion so there is no need for emergency rule-making, which is just too disruptive to the fishing community
6. not have the effect (or at least minimize the effect) of driving fishing effort out of the fluke fishery onto other species that are equally or more vulnerable
7. minimize discard mortality
8. monitor the pace of the fishery and be aware of how each fishery is achieving their goals.

Mr. Wise noted that the group talked about New York’s position with regard to size limits and the way to meet the required target.  They discussed the “precautionary principle.”  Some in the recreational fluke fishery want to harvest up to the maximum allowable every year, while others feel that catching less than allowed need not diminish the fishing experience and provides a buffer against exceeding harvest quota.  Because of the many variations within the fluke community, and in order for New York to be successful, the subcommittee would like to hear about how the fishing public feels about their recommendations and possible regulations.  The group also talked about discards and how to avoid large levels of discard mortality.

Dr. Tony Dilernia of Kingsborough Community College, a former member of the Mid-Atlantic Fishery Management Council, recently distributed a discussion piece on fluke management in which he argued that a major problem in the current management of fluke is the continued use of a state-by-state, conservation equivalency-based approach.  In Mr. DiLernia's view, such an approach was not only less effective than a more coastwide approach but the conservation equivalency approach violated several principles of the federal Magnuson-Stevens Fishery Conservation and Management Act in that 1) it used recreational catch data from the Marine Recreational Fishing Statistics Survey (MRFSS) in an inappropriate way and 2) it resulted in the fluke fisheries in various areas along the coast being treated differently and inequally.  For that reason, he recommended that, should NMFS file 2008 fluke fishing regulations based on the conservation equivalency approach, New York should file suit against this action. 

Chairman Wise reported that there was much support expressed within the subcommittee for Mr. Dilernia's views and recommendation.  One group member, trained as a lawyer, was guardedly optimistic that such a suit, made on the stated grounds, would be successful.  Some concern was expressed within the group that, if this case were argued successfully, use of MRFSS data in the management of other species on a state-by-state, conservation equivalency basis might be similarly invalidated.  While a coastwide approach to fluke management may be beneficial to marine recreational anglers in New York in the case of fluke, it might not be beneficial when applied to other species.   

In order to make a more conclusive recommendation on future management approaches to fluke, the subcommittee will need certain catch and other data, which will only be available in late November or early December.  The subcommittee's next meeting will be scheduled after that data is available. 

Mr. Arnold Leo asked the basis for the recent mid-season closure of the recreational fluke season imposed by DEC.  Mr. Steve Heins of DEC responded that the closure was decided upon after review of MRFSS recreational fluke catch data through Wave 3 (end of July), suggested that New York anglers had already harvested more than 80% of their fluke target, with two important months of the recreational fishing season for this species (August and September) still remaining.  

Councilor Bob Danielson thought Dr. DiLernia's suggestion that New York resist any attempt to use conservation equivalency to allocate fluke between states in 2008 was a no-lose scenario for the recreational fisherman of New York.  Councilor Charlie Witek said that any successful legal challenge against the use of this approach to manage fluke would not affect the management regimes for blackfish, striped bass or weakfish because those species are not federally-mandated.

Councilor Danielson made the motion that the Council recommend to DEC and Governor Pataki that, if NMFS proposed to again use the state-by-state, conservation equivalency-based approach to fluke management in 2008, New York should file a legal challenge to this action.  Councilor James House seconded this motion.  The Council adopted this motion by a vote of 11 in favor; 1 opposed; 2 abstentions.  Chairman Wise will communicate this recommendation to the DEC Commissioner and the Governor. 

 

Page last modified Wednesday, October 31, 2007 by George E. Carroll