Back in the middle aughts, I took a job fishing on a commercial dragger out of Montauk. I was running a tab at a local pub when in walked a fisherman I knew. He was looking to fill out the crew for a trip leaving the following day and knew I’d been making noises about wanting to give offshore commercial fishing a try. I joined the crew as resident greenhorn, and the fisher, who knew of my eco-boy proclivities, warned me that we would be throwing back a lot of fish on the trip — the “bycatch” — and not just low-value “trash” fish, either. My friend explained that owing to the regulations we were compelled to abide, there would be fish coming onto the deck that were out of ­season, that we did not have permits for, and that we would have no choice but to throw back or we’d risk crippling fines at the dock, should fish cops from the New York State Department of Environmental Conservation greet us at trip’s end to check the fish hold. The fisherman’s admonition was, “You’re going to see a lot of stuff out there that’ll knock you back on your heels, but there’s not much we can do about it. Do your job, shut your mouth, collect your money.”

While concerned consumers fret over which fish are correct to order at their favorite seafood restaurant, heading to websites maintained by groups such as the Environmental Defense Fund for guidance on the “eco-best” and “eco-worst” fish to purchase, the truth about commercial fishing in the United States is that a regulatory framework designed to limit overfishing results in vast numbers of fish per year being scooped up on boats and dumped right back off, dead, never consumed by any ­human. Concerned about “endangered” bluefin tuna? Tell it to the tuna long-liners who’ve had to cut loose untold numbers of dead bluefins in recent years, owing to the restrictions that come with winding up on the endangered-species list. A recent ­bycatch-reduction report issued by the National Marine Fisheries Services says that “bycatch is considered to be one of the greatest threats to the sustainability of the marine environment, and bycatch affects practically every species in the ocean.”

On this early-spring trip, the quarry would be whiting, a commercial food fish that goes into lots of frozen-fish products — fish sticks and fish cakes and the like. The crew mustered on the dock at twilight, cast off the lines, and started to sail out to the edge of the continental shelf. At daybreak, the crew dropped the net into the Atlantic for our first “dip.” We towed the net for a couple of hours before “hauling back,” and that air of anticipation you apprehend on Deadliest Catch as the crab pots come up was exactly the sentiment on deck as the gears groaned under the stress of what would be a cod end bulging with fish.

That first dip indeed yielded a teeming bag of fish — but they were the wrong fish. We’d hit a pod of off-season summer flounder, or fluke. The regulations allowed for a certain poundage of fluke that could be kept and sold without risking fines — a tiny fraction of what we caught, less than 100 pounds. We toted up our allowance and shoveled the rest of the fish back into the brine, all dead or dying.

This was a waste of time, effort, fuel, and fish. The captain hightailed it from that piece of ocean in search of a body of whiting we could scoop up. But our regulatory ­bycatch frustrations were just beginning. During this three-day trip, I tallied about twenty species of edible fish and other sea creatures brought up in the net. There were more summer flounder and other out-of-season or less-desirable flatfish; there were piles upon piles of monkfish that got thrown back; and there were stone crabs, lobsters, silver eels, shad, ling cod, John Dory, menhaden, and black sea bass, which at that time were in season and had no minimum-size requirement to be brought to market. The monkfish, highly prized for their livers and status as “the poor man’s lobster,” were an especially memorable waste. I recall that we had around a 100-pound bycatch limit on the monks, and on every dip I was ruefully shoveling at least twice that amount back into the ocean.

Then there were the requirements of our whiting buyer, explained the captain, which placed a minimum length on the whiting it would be able to process. This meant we were throwing back every whiting that was below the processor’s requirements. All of those fish were juveniles — next year’s potential catch. As my old Montauk buddy Mack used to say: Well, the crabs gotta eat too.

The mesh was small enough to capture those sea bass, but many juvenile whiting would be wasted along the way. A larger mesh would have meant fewer juvenile whiting but also fewer black sea bass, hence a longer and less-profitable trip. Given the hard limits of his fish hold, the boat’s owner had no incentive to keep and find a buyer for the juvenile whiting or any of those other, unregulated trash fish flopping their last flop on the deck. So it all got shoveled back, dead.

Variations on this scenario are played out countless times, every day, in oceans around the world. A 2005 report from the Food and Agriculture Organization of the United ­Nations found that 7.3 million tons of fish had been wasted annually over a multiyear study period.

We’re forced to throw back so much product,” says Chuck Morici, a Montauk fisherman who plies these waters on the ­Act I. Gregarious and voluble, Morici was holding court at the Shagwong Restaurant in town last spring and had just returned from an especially frustrating trip where he’d thrown back thousands of those selfsame highly valuable black sea bass, a fishery that had been nearly shut down after it was found that the population had been seriously undercounted.

To put the finest of points on it: The fish Morici threw back were all dead. The waste, he says, is multifold and maddening in its scope. “We have to spend all our time recycling through all that shit just to get the quota” of the targeted species, he says. “I’m feeding the birds instead of the people. It’s insane. Nobody’s head is on the chopping block except the fishermen and the fish.”

The bycatch dilemma dovetails with a host of frustrations facing commercial fishermen these days, and Morici brings up the winter-flounder fishery as a case in point. These toothless flatfish are among the tastiest of all available fish in local waters, a once-abundant inshore species that is now limited to 50 pounds a trip to commercial fishermen. No one denies that overfishing is a factor, both commercially and recreationally. Back in the seventies, I remember marveling at photos in The Fisherman of happy anglers who’d go out in a rented skiff into one of our shallow bays and catch hundreds of unregulated flounder (today, the daily limit for recreational anglers is two fish). Morici cites an additional and more intrusive culprit: sewage and pesticide runoff from relentless coastal development. There is also the resurgence of the striped-bass fishery in New York, which may play into the demise of winter flounder, since the stripers love those fish as much as humans do, and maybe even more so.

Morici lays all this on me and then slams his fist into the bar: “Instead, blame the fucking commercial fisherman?!”

Morici himself has a novel solution. He believes there should be a mechanism in the Northeast that would allow, if not compel, fishermen to keep all the edible but off-­season fish they capture and deliver those fish to Veterans Administration hospitals, area food banks, or other charitable concerns in exchange for some kind of subsidy or tax write-off that, rather than encouraging the targeting of off-season fish, would instead acknowledge that this is part of the deal when you drop the net. Lee Benaka, national coordinator of the NOAA Fisheries Services Bycatch Reduction Engineering Program, points to successful fish-donation programs in Alaska and says this is an “idea worth supporting” in the Northeast. Good faith would appear to be the first and only major impediment to such a program, but that’s in short supply.

It’s an early spring morning as Don Ball casts off and eases the Jen-Lissa from its slip at the town dock in Montauk. His 57-foot dragger is one of the roughly two dozen commercial trawlers, scallop dredges, long-liners, gillnetters, and lobster boats that comprise the commercial fleet here.

Don Ball is at the mom-and-pop end of the commercial-fishing spectrum that runs all the way to the huge factory trawlers that ply the Bering Sea for the pollock that goes into fast-food fish sandwiches. He has piercing hazel eyes to go with an ironic mien and an uncanny resemblance to Robert Duvall, and he shares the actor’s affable conservatism and skepticism of government regulations, a skepticism that rises to the level of outright hostility in these parts. For fishermen up and down the East Coast, this hostility has reached a breaking point. From Gloucester, Massachusetts, to Montauk, the dock areas are filled with pickup trucks brimming with gear and sporting a bumper sticker reading NATIONAL MARINE FISHERIES SERVICE: DESTROYING FISHERMEN AND THEIR COMMUNITIES SINCE 1976.

“Stop treating us like criminals,” says Morici, and maybe the fishermen will start scraping off those bumper stickers.

“I think ­fisheries are saved through the efforts of a variety of partners,” says the ­NOAA’s Benaka, “the most important of which are fishers and government regulators and scientists.” He adds that “there are numerous instances where difficult decisions by the fishing industry and NMFS to close areas to fishing, require more selective fishing gear, and/or set conservative quotas have saved fisheries from collapse, including the Atlantic swordfish fishery, the Atlantic sea-scallop fishery, and the groundfish fisheries off Alaska.”

Benaka is the first to admit that sometimes the government does not get it right, but he vigorously defends his agency’s motives. “We base our management on the best available science,” he says, “and it’s also hard to know what’s in the ocean at any given time. At some point, you have to make some assumptions and extrapolations — it is always going to have some level of uncertainty.”

As Don Ball sees it, fisheries management is “in its infancy,” and the time has come for it to be brought into a responsible adulthood. He’s not optimistic that it will and has already “majorly encouraged” his son to not get involved in the industry. He’s frustrated by an ever-shifting regulatory framework where “you’re a criminal one day, and the next day you’re not” and is convinced that the government is engaged in a “divide and conquer” strategy when it comes to the long-term fate of the industry. Closer to home, he’d just as soon keep all the yellowtail flounder he catches, but when I fished with him, he was working with a 250-pound-a-day quota. “Low quotas, recreationally or commercially, increase discard,” he says.

A lot of effort is being undertaken by NMFS to limit commercial bycatch of all varieties, and the effort to date has put an emphasis on creative ways to tweak the technologies, incentivizing entrepreneurial fishermen and administering grants for especially clever inventions and adjustments to the gear. These include improvements to escape hatches for sea turtles in shrimp trawls, now deployed by shrimpers in the Gulf of Mexico (shrimping has one of the largest bycatch problems in American fisheries), hook guards on long-liners so that seabirds aiming for a quick free meal don’t get hooked, and other similar bycatch-­reduction devices. According to the 2010 bycatch-reduction report from NMFS, two areas of special concern for the mid-Atlantic fleet are mitigating against bycatch in the Loligo squid fishery and minimizing the incidence of Atlantic sturgeon and porpoise fatalities in monkfish gillnets.

Benaka also says that the recent implementation of a new regulatory system in the Northeast, known as a catch-shares framework, while not designed to reduce bycatch, has been shown to do just that. The reigning protocol has been “derby fishing,” where an overall quota is set for the fishery, and once it is reached, the fishery is shut down. If you haven’t caught any fish, too bad for you. If the weather conspired against you during your “days at sea” allotment, too bad. You can risk death on the high seas, or you can stay tied to the dock. Not an especially friendly protocol for fishermen looking to put some presents under the Christmas tree.

Derby fishing means that fishermen will “hit it hard, often in bad weather,” says Benaka, in order to get their share of the overall quota. Under catch-shares, “each boat has a right to catch a certain amount of fish in the season; they can fish when they want to, they can base their schedule on the weather, how safe it is, the markets — when the market might peak, when they can get a better price,” he says. “If they are fishing in that manner rather than under a tight deadline, they’ll be more careful and will try to reduce the bycatch”; i.e., they will fish in a way designed to maximize their yield and minimize the time spent sorting through the catch to get at the fish for market. His approach would seemingly be beneficial to a guy like Ball.

On a trip a couple of years ago, when we got to the fishing grounds off Block ­Island, Ball clanked out the gear, deploying a six-inch net, and set his tow at a steady three knots; after an hour, he “hauled back” the net, and the deck flopped with life. We stooped over and sorted through the catch, which was dominated by skates. Two marketable varieties of flatfish filled about six waxy cartons. A dozen or so plastic totes of skates were earmarked for local lobstermen. We’d done only one short tow, and Ball hadn’t caught his daily quota of yellowtail, so there was no regulatory bycatch that day. And he was using the six-inch net, so there weren’t a lot of wasted fish, just a few see-through windowpane flounder and a smattering of sculpins; they’re swept off the deck, back to the benthic depths, where the crabs would have at them.

The bycatch problem can be as slippery as the fish themselves, and regulators have been faced at times with the unenviable responsibility of having to shut down a healthy fishery because of the bycatch that goes along with it. In recent years, the Northeast has seen the rise of a highly profitable Lilogo squid industry. We all like our calamari, breaded and fried and dipped in tangy marinara sauce. But the growth of that small-mesh fishery, says Brad Sewell, a fisheries expert with the Natural Resources Defense Council, is “the dirtiest in the mid-Atlantic, by far.” He adds. “It’s the biggest bycatch problem that’s attracted the least attention.” Not so fast, says Bill Reed, owner of the Providence and North Sea draggers in Hampton Bays. He claims the squid fishery, at least during the spring and summer, is as “clean as corn,” with minimal bycatch.

Ask Ball, and he’ll say that he’d just as soon “keep the larger net” in the water and do his part as a responsible steward of our shared national resource. But given the intensely restrictive regulations on the flounder he’d rather be catching, and given that the bills don’t stop arriving in the mailbox just because he can’t catch the fish that would help him pay those bills, “I have to try for squid and butterfish.” That means deploying the smaller-mesh net, which in turn means more regulatory discard getting thrown back dead, which means more head-scratching anger and bewilderment at the apparently contradictory if not flat-out self-defeating aims of government regulators.

They tell me there was a time when you could come to Montauk and hear a multiplicity of cries from local fishermen selling their catch right off the back of the boat, a practice that is now all but illegal. Why not reinvigorate this tradition with the addition of a radicalized and intensively localized bycatch program that would allow, if not compel, fishermen to keep whatever they catch and work with the government to sort it out at the dock? Instead, the regulatory structure as it exists encourages fishermen to become fish “pirates,” to try to game the system where they can. At the most self-­defeating end of the piracy spectrum are the occasional bad-apple lobstermen who scrape eggs from off-limits, egg-bearing females in order to make a shortsighted buck. Now state fisheries cops have a special dye they will swab on a lobster’s underside to detect whether eggs have been scraped. Emerson writes that “[t]here will always be a government of force, where men are selfish,” but in the commercial-fishing industry, there are also corrupt regulators doing their share to guarantee a continuation of the mutual-distrust dynamic; this May the ­Department of Commerce ordered a payback of some $650,000 in fines to Northeast fishermen after an ­investigation revealed that regulators had unfairly targeted them for violations.

Meanwhile, down at the docks, I checked in with Ball, and the age-old question is asked…

“The fishing is good,” he answers. “But the regulations…”

It’s a tangle that has to be sorted out, lest we have no fish and no fisherman.

Research support for this article was provided by The Investigative Fund at The Nation Institute, now known as Type Investigations.