Thursday, April 19, 2018

HOPE AND HYPE AT THE RECREATIONAL SUMMIT


On March 28 and 29, the National Marine Fisheries Service (NMFS), with the cooperation of the Atlantic States Marine Fisheries Service (ASMFC), held the 2018 Recreational Fishing Summit in Alexandria, Virginia.

Such summits have been held every four years or so. I’ve attended the last few, and in previous years was underwhelmed, as the programs have too often been used by various organizations to coopt anglers’ voices, and to promote their own agendas.

That was a particular problem in 2014, when various organizations affiliated with what is now known as the Center for Sportfishing Policy (Center) used the Summit to spotlight their recently-issued manifesto, “A Vision for Managing America’s Saltwater Recreational Fisheries,” (Vision Report) to kick off their campaign to weaken the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), and promote the legislation that they call the “Modern Fish Act.”

I’m happy to report that the 2018 summit was quite a bit different. Diverse viewpoints were represented, and no one agenda dominated the discussions.
At first, it didn’t look like that was going to happen. The agenda seemed freighted with Modern Fish Act talking points, and the keynote speaker was Bill Shedd, Vice Chairman of the Center, who immediately began urging anglers to support that legislation.
Fortunately, and contrary to at least one industry report that claimed otherwise, that was the last time that the Modern fish Act was mentioned by any of the presenters. Instead, attendees had the opportunity to hear from panels of experts that were drawn from everywhere between the Atlantic Coast and American Samoa, who brought a wide range of perspectives to all of the issues addressed.

We were scheduled to address four general topics over the four days; the first was “Innovative Management Alternatives and Approaches,” a concept seemingly similar to the “alternative management measures” that were extensively discussed in the Vision Report and are a regular talking point for Modern Fish Act supporters. However, when the conversation began, it was refreshingly objective.

Kenneth Haddad, an advisor to the American Sportfishing Association, clearly wanted to move fishery managers away from poundage-based annual catch limits, but failed to propose any clearly viable alternatives.

He admitted that two proposed approaches, using annual catch (removal) rates instead of hard-poundage limits, and restricting anglers to fishing inside a designated depth contour or distance from shore, were “not extensively researched,” and that the former would require managers to expend substantial resources to develop the annual recruitment indices and abundance estimates needed to make a rate-based management program work.
He mentioned other possible approaches, virtually all beset by problems, although one idea—setting optimum yield well below maximum sustainable yield to increase fish abundance and better support fisheries for species that are often released, such as king mackerel—seemed to be both a practical and a desirable management option.
However, Mr. Haddad clearly misspoke when he said that Magnuson-Stevens placed a “stifling pall” on such innovative management measures because of its “prescriptive nature,” and suggested that managers “needed to push the envelope or push change to test and allow new management approaches.” As made clear in the published guidelines to Magnuson-Stevens’ National Standard One, the law already allows the use of many so-called “alternative” management measures, specifically including managing by catch rate, and no changes to current law are needed to put such approaches in place.

That point was driven home by Alan Risenhoover, the Director of the Office of Sustainable Fisheries at the National Marine Fisheries Service. He emphasized the considerable flexibility already allowed in the National Standard One guidelines, and also emphasized one point that, although obvious, often gets lost in the alternative management debate: “Preventing overfishing keeps everybody in business.”
Other speakers addressed issues such as the need to develop data that would allow fishery management decisions to be made more quickly, so that managers could make timely adjustments in response to changes in fish abundance, and developing innovative ways to purchase quota from the commercial fishing industry, in order to assure a sufficient supply of fish for the for-hire fleet and its customers.
After the initial panel discussion, we moved to a more general discussion of items that were particularly relevant to each section of coast. Not surprisingly, improving the timeliness and accuracy of fisheries data was an overarching concern; although it was not really an alternate management approach, everyone recognized that good data was the key to good fishery decisions. Attendees also generally recognized that obtaining good data required adequate funding of data-collection efforts.
Beyond that, anglers suggested a wide range of “alternative” management measures. Ecosystem-based fishery management and the preservation of forage fish populations were mentioned, as was the need to recognize catch-and-release as a legitimate use of recreational allocations, and not merely a reason to reallocate unharvested recreational quota to the commercial sector.
Eliminating annual catch limits from some or all recreational fisheries, as proposed in some versions of the Modern Fish Act, generated very little enthusiasm at all.
Anglers also seemed to have little enthusiasm for the second discussion topic, Socioeconomics in Recreational Fisheries Management. Only 60% of attendees responding to a pre-meeting survey thought that the topic deserved “high” or the “highest” priority, placing it last among the four topics discussed. Still, the panel presentation was comprehensive, and competently addressed a number of socioeconomic issues.
In the general discussion that followed the panel presentation, some of those present, who had served on regional fishery management councils, observed that biology, and the need to avoid overfishing and rebuild overfished stocks, drives most management decisions; socioeconomics, while considered, is rarely if ever a decisive factor. Thus, anglers pay socioeconomics relatively little heed.
But if attendees were generally indifferent to socioeconomics, they were deeply interested in helping NMFS improve its data collection. Fully 80% of the attendees listed it among their top priorities; no other topic got a higher rating. Even when the other topics were being discussed, data issues always managed to wriggle into the conversations, and rise to the top of anglers’ concerns.
We were asked to consider how anglers could contribute to the data-gathering process; it’s not as simple a question as it might seem, since the key is getting a statistically-valid sample. Anglers seem loath to report their catches; even in the case of Atlantic bluefin tuna, where reporting is required by law, only about 20% of the anglers comply. In Alabama, where anglers are required to report their red snapper catch, overall compliance has never climbed much above 30%, and for some periods, was as low as 7%.

Managers also realize that a universal, mandatory reporting requirement is impractical. Not only would the data from millions of anglers overwhelm the processing system, but requiring anglers to report every family fishing trip, no matter how casual, would take a lot of fun out of the fishing experience just when NMFS and the states are trying to get more people out on the water.
Yet if angler reporting is voluntary, how will managers be able to keep bias out of the system? Bias can come from a lot of sources. Will all anglers, of all experience and interest levels, choose to report at the same rate? Or will some very engaged anglers report on all of their trips, others report only those trips where they were very successful, and others not report at all, because they don’t want fishery managers to know what they’re catching? Or will some of those mistrustful anglers actually make false reports, hoping to manipulate the management process, and produce a result they desire?
It quickly became clear that the data-gathering process was a lot more complicated than anyone believed, yet at the same time everyone offered suggestions ranging from smart-phone apps, to government-sponsored “brag boards” where anglers could show off their catch to the creation of rewards-based reporting systems, trying to make things better.
Like data, using conservation measures to improve angling was a high-priority issue, at the top of 75% of the attendees’ lists. And like data, it engendered a wide-ranging conversation that revealed how complicated the topic really is. Some of the issues, such as ecosystem and forage fish management, that were discussed in the initial, innovative management section, arose again. The related need for stable, intact habitats was also mentioned, coupled with the need for government agencies to cross jurisdictional boundaries and address such things as clean water issues that arise inland, but can have a marked effect on the coast.
Other suggestions were also made, such as crafting fishing seasons to minimize barotrauma problems, keeping them closed during those times of the year when fish reside in deep waters. But the most important thing probably wasn’t the suggestions themselves, although NMFS will hopefully find some of them useful. It was the fact that anglers from every coast, with different opinions and outlooks, were willing to come together to spend two days poking and prodding the management process, putting their egos and their special interests aside in the hope of making that process work better for everyone.
The only discordant notes, when they came, came not from the anglers, but from what was said, and not said, by some high-level government officials.
Rear Admiral Tim Gallaudet, the acting head of the National Oceanic and Atmospheric Administration (NOAA), was clearly proud of his agency’s record of repealing what he called “burdensome fishing regulations”; he bragged that NOAA’s 50 deregulatory actions “were an order of magnitude larger than at other agencies.” He didn’t mention conservation at all.
Commerce Secretary Wilbur Ross struck a similar tone when he addressed the assembled anglers and fishery managers. He assured us that “The Trump Administration is working hard to support your right to fish,” and that he “intends to cut billions of dollars in burdensome regulations” affecting our fisheries. He said that he was committed to “maximizing sustainable yield.”
He proudly listed what he viewed as his list of accomplishments for recreational fishermen: Allowing New Jersey to remain out of compliance with the Atlantic States Marine Fisheries Commission’s summer flounder management plan (which injected turmoil and uncertainty into what had been a successful interstate management system), reopening the private boat red snapper season in the Gulf of Mexico (despite knowing that it would lead to overfishing, and was contrary to explicit provisions of Magnuson-Stevens) and opening a short “emergency” red snapper season in the South Atlantic (even though the Science and Statistical Committee of the South Atlantic Fishery Management Council didn’t have a sufficient opportunity to evaluate the impacts of such action).

As was the case with Rear Admiral Gallaudet’s talk, the need to maintain the health and abundance of U.S. fish stocks was not mentioned in his presentation.
Despite that, we left on a good note. The last non-agency speaker to address the event was New York charter boat captain John McMurray, whose closing statement offered a stirring counterpoint to Bill Shedd’s opening statement.
Where Shedd aggressively promoted industry and anglers’ rights organizations such as the American Sportfishing Association and Coastal Conservation Association, holding them out as catalysts of change, Capt. McMurray talked about the legion of conservation-minded anglers who had no public representation at all, since the big national organizations have abandoned their conservation heritage, and now seek to weaken federal fisheries laws.
Where Shedd called for open-ocean aquaculture, and was willing to accept whatever risks that entails, to “grow the marine resource pie,” Capt. McMurray talked about growing the pie the old-fashioned way, through conservative management measures that create the sort of abundant fish stocks that anglers, and charter fishing businesses like his, need to survive.

Some of the fishermen present clearly agreed; others most likely did not. But speaking to anglers after the meeting, I got the impression that many took Capt. McMurray’s message to heart.
That’s good. We can only hope that NMFS took his message to heart as well.
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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/


Sunday, April 15, 2018

JUMPING THE GUN


Canadian cod are on the decline.

Again.

And that decline was completely predictable.


“A recent Department of Fisheries, Oceans and Coast Guard (DFO) report revealed cod stocks in the Labrador to Avalon Peninsula [Newfoundland] dropped 30 percent in 2017 over estimates on the 2015 population.”
The decline apparently caught some people by surprise, because cod in that region of Canada had been staging a comeback in recent years.  Overfishing throughout the late 1900s had led to a sharp decline in abundance, but after more than twenty years of scarcity the population finally began to grow larger.  And as often happens when a stock begins to rebuild, fishermen began asking the government to relax restrictions on harvest.

There was no question that a few relatively good year classes of cod had entered the population, and that the population had grown.  At the same time, it was equally clear that, after such year classes were produced, cod reproduction had again slowed, and because of that, biologists inside and outside of government advised against increasing cod harvest.

Canadian fishery managers ignored the scientific advice, and heeded the fishermen’s pleas.  As a result, the number of cod removed from the population in 2017 was triple the removals just two years before.   

Thus, when the cod stock again began to decline, the scientific community wasn’t surprised at all.  Seafood Source quoted one biologist, Sherrylynn Rowe of the Centre for Fisheries Ecosystems Research, who said

“Last year, when it became evident that the recent burst of cod productivity had started to slow, my colleague George Rose and I wrote a paper in the journal Nature where we urged the Canadian government not to act on proposals for increased fishery access because we were of the opinion that ramping up the fishery in the face of declining productivity stood to derail the come back that we have seen of late.  Unfortunately, shortly after that article was published, policymakers opted for a management plan that essentially ignored our pleas, and those by DFO’s own scientists which encouraged keeping removals to the lowest possible levels.  Instead, they went ahead and changed the management plan in such a way that allowed removals in 2017 to amount to about three times what they were in 2015.
“That’s a big jump, and I’ve been of the opinion that ramping up the fishery at that rate was too much too soon.  The stock, although it has made this remarkable comeback, it’s still below what we call the limit reference point.  It’s well below historical normal levels of abundance…When a stock is at that stage, we really need to put conservation front and center and do everything in our ability to help encourage continued stock growth.  But with pressure from the industry…and with these encouraging signs around cod, I think that there was a lot of pressure to start rebuilding a groundfish fishery in the province that I think may have been premature.”
United States fishermen, and fishery managers, will immediately see parallels with situations that they’ve faced in local waters.  Here in the northeast, cod also provide some of the best examples.

For many years, cod formed the backbone of an active winter recreational fishery in southern New England and the upper Mid-Atlantic, but by the late 1980s, dwindling cod populations had largely relegated that fishery to the past, particularly off New York and New Jersey.  But around 2010, a spike in winter cod abundance between Block Island and Rhode Island’s Cox’s Ledge led a lot of folks in the angling community to believe that the good times were back.


“For many of the scores of party and charter boat captains who make their livelihood in Montauk, the East Coast’s premier fishing harbor, the cod fishery this winter is an unexpected bright spot.  Atlantic cod landings from charter and party boats along the Northeast coastline more than doubled from 2005 to 2010, to a record 6.8 million pounds last year.
“Carl Forsberg, captain and one of the owners of the Montauk-based Viking Fleet, said the 1990s and early 2000s were tough years for cod fishing.  But that began to change four years ago, and the Viking Fleet was quick to capitalize.  ‘Now, it’s like a blessing for us in the winter,’ he said.
“He attributes the increased activity to fishing regulations that protect not only cod, but the baitfish such as herring that they feed on.
“For Montauk, the increase means more than just a welcomed winter fishery.  The cod fishing has also brought boats and their crews to the harbor from  New Jersey, Hyannis, Mass., and western Long Island…
“While most party boats are enforcing a 10-fish limit per person (and a 22-inch minimum size), there’s a regulatory loophole this year that has made cod fishing even more attractive.  Recreational boats fishing in federal waters like those around Block Island east of Montauk Point have no limit on the number of cod that can be taken…”
And so, a lot of cod were taken in those years of abundance. 

 But perhaps fishermen should have showed some restraint.  

A 2014 paper, “Stock identification of Atlantic cod (Gadus morhua) in US waters; an interdisciplinary approach,” published in the ICES Journal of Marine Science, observes that cod off southern New England, on Cox’s Ledge and in the Mid-Atlantic spawn from December to April, which is exactly when the resurgent fishery, reported in Newsday, was taking place.

More importantly, the paper noted that

“Several studies indicate that cod exhibit spawning-site fidelity and return to the same places to spawn each season…
“One a spawning site has lost its resident population, it may remain barren even when spawning cod are present on neighboring grounds…”
Thus, both Montauk and the region’s recreational cod fishery might, in the long term, have been better served if fishermen hadn’t swarmed to the area and taken as many fish as the sea, the boats and the regulations allowed, but gave the newly resurgent body of fish an opportunity to spawn and reestablish a larger breeding population.

Because these days, in Montauk as up in Canada, landings are, once again, down.  The same Viking Fleet that called winter cod fishing “a blessing” when quoted by Newsday seven years ago is telling a very different story today.  

Outside of one week in January, when the fishing again seems to have been good, the fleet’s reports for the winter of 2018 were filled with comments such as

and

which was a big difference from just a few years before, when many of the boats voluntarily limited their anglers to no more than 10 cod, because it was so easy to catch many more.  

Perhaps the entire fishing community should have paid more attention to some federal fishery managers, one of whom, as reported in Newsday, warned that

“Increased landings numbers aren’t the same as actual fish population surveys, the most recently available of which showed declines in cod numbers to 2005.”
The problem is that fishing, by its very nature, is about catching fish, and when fishermen see a lot of fish in front of them, most are going to want to go out and catch at least as many as the law allows, regardless of what fishery managers say.  If anything, they are likely to discount the advice of professional biologists, and rely on the evidence presented by their own eyes, without worrying about whether such current local abundance reflects the actual health of the overall stock.

That very natural reaction makes managing recovering stocks, even stocks in early stages of recovery, one of the most challenging jobs in fishery management.  Fishermen always want to jump the gun and cash in on current abundance, regardless of what that might mean for the future.

Such behavior isn’t limited to cod fishermen.

Mid-Atlantic anglers will recall the rhetoric that accompanied federal fishery managers’ efforts to rebuild the summer flounder population; year after year, there were calls to allow higher landings than the scientists recommended, based largely on the argument that the summer flounder population was bigger than it had been for years.  This excerpt from a Jersey Coast Anglers Association newsletter was typical.

“NMFS is suggesting that we reduce the proposed 33 million pounds to 23.9.  What is truly amazing is that the quota for 2002, 2003 and 2004 was 26 million pounds.  With these quotas the stock continued to rebuild.  The spawning stock biomass and total biomass is larger than it has been in over 25 years.  Even with a 30 million pound quota recruitment in the last four years.  The recruitment has been at average or just below average for the last four years and the stock has continued to rebuild…”
Fortunately, fishery managers held the line and kept harvests low enough to let the stock rebuild, because over the past six or seven years, summer flounder have seen a “drastic decline in recruitment” for reasons that have yet to be determined.  If such low recruitment had occurred before the stock had been rebuilt, the population would almost certainly be in far worse shape today.  Instead, at least up until now, managers have been able to maintain it at a reduced, but still relatively sound, level.

Southern fishery managers are facing the same sort of issues as they work to restore red snapper stocks.

In the Gulf of Mexico, the red snapper stock had lost 98% of its spawning potential; the spawning stock was no longer large enough to sustain the population.  Fishery managers set out to rebuild the spawning stock to a level that it considered healthy, when it would have   a spawning potential equal to about 26% of that of an unfished population.  The last time the population had been at such presumably healthy level was in 1960.

As a result, when managers began to successfully rebuild the stock, and anglers began seeing more red snapper than they had seen before, they began to demand that recreational regulations be relaxed.  Quotas were steadily increasing, but they weren’t large enough to satisfy anglers, who wanted to kill more fish than federal fisheries managers deemed prudent.  That led anglers’ rights groups to make patently false statements about the health of the stock, including one claim that

“By almost any account, red snapper are more abundant now than perhaps at any point in history.”


Yet he yielded to fishermen’s entreaties anyway.

His doing so illustrates why a strong federal fisheries law, which prohibits overfishing and requires the timely rebuilding of overfished stocks, is so important to the health of the United States’ marine resources. 


“Instead of having a fixed deadline for stocks to be rebuilt…the regional councils and fisheries managers set lower harvest rates that would allow fish stocks to recover gradually while diminishing socioeconomic impacts.”
The problem is that fishermen—and fishing-related businesses—are so adverse to such impacts that they would likely demand that managers allow fish stocks to recover so gradually that we see no improvement at all.  The Atlantic States Marine Fisheries Commission’s management of tautog is a case in point.

And they will keep asking fishery managers to jump the gun and allow larger harvests before the science and prudence can justify such action.

It’s only human to do so.

And so it’s only reasonable to keep the Magnuson-Stevens Fishery Conservation and Management Act strong, and its firm rebuilding deadlines intact, to offset such impulses, and to keep the United States’ recovering fisheries from going the way of Canada’s cod.

Thursday, April 12, 2018

1983






The problem was that, even though ASMFC thought that it new how to bring back striped bass abundance, it had no way to do so.  Striped bass were managed by the states; ASMFC served in a purely advisory role.  It had no way to enforce its recommended management measures.

And without a single, coastwide approach to striped bass restoration, the effort was probably doomed.  Some states, including Connecticut, Rhode Island, Maryland and Virginia, instituted moratoriums on harvest, while others failed to implement even the less-stringent management measures recommended by ASMFC. 

As a result of such checkerboard of state regulations, a striped bass migrating from its summer feeding grounds off New England to wintering areas off North Carolina swam through waters where it was completely protected, and waters where it had no meaningful protection at all. 

Heading north, a big female striper could safely pass through the moratorium-bound waters of Connecticut and Rhode Island (and New York, although the moratorium there was ostensibly based on PCBs contaminating bass from the Hudson River, and not on the dire state of the stock), but would be vulnerable once it reached Massachusetts, which kept its recreational and commercial fisheries open.  Heading south, the same fish—assuming that it survived the summer—would cruise safely past Maryland and Virginia, only to find itself in peril from trawls, gill nets and haul seines as soon as it crossed the North Carolina line.

As a result, conservation measures imposed in one state were merely keeping bass alive long enough for them to be killed somewhere else.  The stock as a whole showed no sign of recovery.

In order to solve the problem, Congress passed the Atlantic Striped Bass Conservation Act in 1984.  That law contained a number of different provisions, the most important of which gave ASMFC the authority to enforce its striped bass management measures; should any state fail to fall into line with ASMFC’s program, ASMFC was empowered to find that state out of compliance, and report it to the Secretary of the Interior and Secretary of Commerce.  If they agreed with the out-of-compliance finding, they were required to impose a moratorium on the offending state’s striped bass fishery, shutting down all landings until it adopted the ASMFC management plan.
                                             
The law worked as intended.

ASMFC adopted tough rebuilding measures in its Amendment 3 to the Interstate Management Plan for Atlantic Striped Bass, measures so restrictive that they effectively prohibited the harvest of all striped bass spawned in and after 1982.  Such measures were successful—as strict measures usually are—and in 1995, the striped bass stock was deemed fully recovered.

In fact, the law worked so well that, in 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act, which gave ASMFC similar authority to enforce the provisions of all of the fishery management plans for all of the species that it manages.


Unfortunately, while the enforcement provisions of the Atlantic Coastal Fisheries Cooperative Management Act were similar to those of the Atlantic Striped Bass Conservation Act, they were not identical, and last year, that caused a problem.


“Upon receiving notice from the Commission…of a negative determination regarding a coastal State, the Secretaries [of Commerce and the Interior] shall determine jointly, within 30 days, whether that coastal state is in compliance with the Plan and, if the State is not in compliance, the Secretaries shall declare jointly a moratorium for fishing for Atlantic striped bass within the coastal waters of that coastal State.  In making such a determination, the Secretaries shall carefully consider and review the comments of the Commission and that coastal state in question.  [emphasis added]”
Pursuant to the striped bass act, the Secretaries have no discretion; if a state is out of compliance, a moratorium must be declared.


“Within 30 days after receiving a notice from the Commission [that a state is not in compliance] and after review of the Commission’s determination of noncompliance, the Secretary [of Commerce] shall make a finding on—
(1)     whether the state in question has failed to carry out its responsibility under [the relevant fishery management plan]; and
(2)    if so, whether the measures that the State has failed to implement and enforce are necessary for he conservation of the fishery in question.
…Upon making a finding…that a State has failed to carry out its responsibility under [the relevant fishery management plan] and that the measures it failed to implement and enforce are necessary for conservation, the Secretary shall declare a moratorium on fishing in the fishery in question within the waters of the noncomplying State…  [emphasis added]”
In other words, pursuant to the Atlantic Coastal Fisheries Cooperative Management Act, mere noncompliance with an ASMFC management plan is not enough to trigger a moratorium; the law allows the Secretary of Commerce to substitute his/her own judgement for that of the fishery managers at ASMFC, and excuse a state’s noncompliance if, in the Secretary’s view, such noncompliance doesn’t threaten the health of the stock of fish in question.

Unfortunately, the Secretary isn’t required to consider whether excusing noncompliance threatens the health of the entire cooperative interstate management system.  That became apparent last July, when Commerce Secretary Wilbur Ross sided with the State of New Jersey, allowing it to maintain a recreational summer flounder fishery governed by regulations that weren’t up to the ASMFC standard by finding that the New Jersey regulations adequately conserved the summer flounder stock.


“The Commission is deeply concerned about the near-term impact on our ability to end overfishing on the summer flounder stock as well as the longer-term ability for the Commission to effectively conserve numerous other Atlantic coastal shared resources…
“We are very much concerned about the short and long-term implications of the Secretary’s decision on interstate fisheries management.  Our focus moving forward will be to preserve the integrity of the Commission’s process, as established by the Atlantic Coastal Act, whereby, the states comply with the management measures we collectively agree upon…” 
It didn’t take long for the negative consequences of Ross’ decision to appear in the management process.

In November, ASMFC debated Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden.  Going into the meeting, there was a lot of public support—it would not be an exaggeration to say overwhelming public support—for interim ecological reference points that would consider menhaden’s role as a forage species when setting annual quotas.  There was also substantial support for setting the 2018 menhaden quota at the same level set for 2017, even though a big Virginia-based industrial harvester wanted to see a substantial increase.  All indications were that ASMFC’s menhaden management board was going to vote for the interim reference points, and probably against any change in the overall quota.

To the surprise and dismay of just about everyone except Virginia and the industrial fishery, just the opposite happened.  There were a lot of reasons things didn’t go as expected, including a last-minute science update that added a lot of uncertainty into the decision.  However, Ross’ support for a noncompliant New Jersey certainly played a role.  As described by someone who sits on the management board,

“…given the most recent and ‘best’ available science—a single-species stock assessment that doesn’t account for predator needs in the slightest, and that indicates the board could increase the quota by up to 40% without ‘overfishing’—we stood little chance of achieving that goal.  Particularly in light of the fact that the state of VA was threatening to go out of compliance (i.e. disregard an ASMFC agreed-upon quota) if we didn’t increase the quota.  Whether or not VA was bluffing, who’s to say  [emphasis added].”
Even a bluff that Virginia might go out of compliance was enough to intimidate a number of management board members, because if the Secretary supported another out-of-compliance state, which very well might have happened, ASMFC would have been rendered effectively toothless, and the cooperative interstate management system that had worked for more than two decades would have lost any effectiveness that it might still retain.


Although nothing is certain, there are a lot of rumors going around that the management board, again afraid of a reversal by Commerce, is trying to avoid a confrontation with Virginia.

And that’s not the only noncompliance situation that ASMFC may be facing. 

After ASMFC made some unfortunate decisions on black sea bass allocation and management last February, decisions based largely on politics and voting power rather than on the current distribution and abundance of the black sea bass stock, the four northern states—New York, Connecticut, Rhode Island and Massachusetts—will be forced to reduce their recreational landings by nearly 12%.

No one in the four states is happy with that outcome, and the states are going to appeal the Summer Flounder, Scup and Black Sea Bass Management Board’s decision to ASMFC’s entire policy board.  However, while the three New England states seem reluctantly willing to abide by the policy board’s decision, a small but belligerent component of New York’s recreational fishing community is demanding that the state go out of compliance with ASMFC’s management plan.


“Going into non-compliance is never the first option, but it may be the only one in taking a stand for New York anglers who year after year continue to get screwed…
“Tri-state parity is so important, and New York needs to take an immediate stand against the unfair black sea bass allocation and set its own fair and equitable quota and going into what is formally known as ‘non-compliance…’” 

“The people of the marine district of NY will not accept or endorse any options with a cut to our sea bass regulations in 2018.  If nothing can be worked out with the Atlantic States Marine Fish [sic] Commission, we demand that our state goes out of compliance, and take the case all the way to the Secretary of Commerce, Wilbur Ross…”
Because based on what happened last year, there is a real expectation that Ross would again ignore ASMFC and its scientists’ findings, and endorse a state’s noncompliance.

Based on Ross’ comments at last month’s Recreational Fisheries Summit, held outside of Washington, where he listed siding with a defiant New Jersey as one of the accomplishments of his administration, such expectations may very well reflect reality.

I don’t really expect New York to go out of compliance on black sea bass; its fishery management folks know better than that.  But they don’t make the ultimate call, and when fisheries issues abandon the realm of science and begin encroaching on politics, anything can happen, particularly in an election year.

Should Ross overrule ASMFC once again, whether with respect to black sea bass, menhaden or some other disputed stock, the future of cooperative interstate fishery management would be extremely bleak.  It might be more accurate to say that such cooperative management had no future at all.

That would be bad.

Unlike a lot of people walking around and complaining about interstate management today, I was alive and full-grown in 1983.  I remember what fisheries management was like when each state struck out on its own, doing what it thought best for its residents, regardless of how that affected other states, and the overall health of fish stocks.

I saw enough to know that the Atlantic Striped Bass Conservation Act and the Atlantic Coastal Fisheries Cooperative Management Act weren’t adopted at some congressman’s whim; they were signed into law to address a real and critical need to coordinate management measures across a fish stock’s entire range, in order to best conserve and manage each species.

No, ASMFC isn’t perfect.  I frequently criticize its lack of enforceable management standards, which often leads to science being subordinated to economic concerns.  But I also vehemently support ASMFC as an interstate body that brings all fishery managers onto the same page, to manage and conserve migratory fish stocks.

While its decision-making process needs to be improved, it should never be ignored.

Because when that starts happening, we’ll be right back in 1983.

I lived through that once, and don’t care to do it again.

Sunday, April 8, 2018

FISHERIES MANAGEMENT: CHECKS AND BALANCES


Somewhere back in grade school, we all learned that the United States government is composed of the Executive, Legislative and Judicial branches. All three branches have equal standing; none is superior to the others.
Article I of the Constitution of the United States vested all legislative power in the Senate and House of Representatives. Article IIdefined the powers and duties of the President and executive agencies, while Article III created the Supreme Court and gave Congress the power to create the judicial system of federal district courts and courts of appeals that we know today. Yet, while Article III authorized the federal courts to decide cases “arising under this Constitution,” it did not expressly grant the Supreme Court to make the ultimate decision as to whether an executive or legislative action passed constitutional muster; the court first asserted that power in 1803, when it decided the case of Marbury v. Madison, and has wielded it ever since.

The Constitution’s grants of exclusive authority to each branch of government created a system of checks and balances, in which every branch has unique powers that allow it to limit the actions taken by either of the other two branches.

The need for such a separation of powers is frequently raised in political debates, but many anglers don’t realize that it’s important for fisheries management, too.
It all begins with the Legislative Branch which, in 1976, first passed the law that we now know as the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). The 1976 version, known simply as the Fishery Conservation and Management Act, forced most foreign fishing vessels to stay at least 200 miles from United States shores, but was not effective at conserving fish stocks. In 1996, Congress amended the law to better address conservation concerns.

The 1996 version of Magnuson-Stevens prohibited overfishing, and required federal fishery managers to rebuild overfished stocks within 10 years, if it was biologically possible to do so.
At that point, it became the duty of the Executive Branch, in the form of the National Marine Fisheries Service (NMFS) to transform the will of Congress, as expressed in Magnuson-Stevens, into a functioning fishery management program.
At first, NMFS didn’t do that very well.
In order to end overfishing and rebuild overfished stocks, NMFS would have to compel fishermen to stop overfishing and reduce their landings to levels that fish stocks could sustain over the long term. Fishermen didn’t want that to happen, because reducing landings would also reduce their incomes, at least in the short term. Because fishermen held most of the seats on the regional fishery management councils that drafted the management plans and proposed fisheries regulations to NMFS, and most of those fishermen didn’t want to see landings reduced, the conservation provisions of Magnuson-Stevens were not immediately implemented.
Things finally came to a head in 1999, after the Mid-Atlantic Fishery Management Council (MAFMC), acting against scientific advice, established a catch limit for summer flounder that was very unlikely to prevent overfishing.
That’s where the third branch of government, the Judicial Branch, played its role.
The facts of the matter were not in dispute. The biologists on MAFMC’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee (Monitoring Committee) recommended that 1999 summer flounder landings be limited to 14.645 million pounds, but the MAFMC rejected that advice, and adopted a 20.20 million pound quota. However, NMFS refused to implement the MAFMC’s proposed quota because, if it did, there was only a 3% chance that overfishing wouldn’t occur.

Instead, NMFS decided to implement an 18.52 million pound quota, which was still significantly higher than the Monitoring Committee’s recommendation, and had only an 18% chance of preventing overfishing.
In response to what seemed to be a clear violation of both the letter and the spirit of the recent amendments to Magnuson-Stevens, a conservation group, the Natural Resources Defense Council, brought a legal action against the Secretary of Commerce, who had the ultimate responsibility for NMFS’ actions, and against other related parties.
The matter, Natural Resources Defense Council v. Daley, eventually ended up in the United States Court of Appeals for the District of Columbia Circuit, where the court decided that the Executive Branch, in the form of NMFS, failed to properly carry out its duties as defined in the relevant legislation, which was Magnuson-Stevens.

The court, interpreting the language of Magnuson-Stevens, decided that NMFS must prioritize effective conservation measures above economic concerns. Most importantly, it found that, in order to meet the requirements of federal law, measures adopted by NMFS, including annual catch quotas, must have at least a 50% chance of achieving their stated goals.
In a scathing rejection of NMFS’ proposed quota, the court observed that “The disputed 1999 [landings quota] had at most an 18% likelihood of achieving the target [fishing mortality rate]. Viewed differently, it had at least an 82% chance of resulting in [a fishing mortality rate] greater than the target [fishing mortality rate]. Only in Superman Comics’ Bizarro World, where reality is turned upside-down, could [NMFS] reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence’ [in its success].”
Thus, the system of checks and balances worked just as intended, with the Legislative Branch passing Magnuson-Stevens, the Executive Branch failing to properly comply with the law, and the Judicial Branch interpreting the Legislative Branch’s actions and, in so doing, requiring the Executive Branch to correct and improve its management system.
We need to think about that this year, as Congress considers new amendments to Magnuson-Stevens, because effective fishery management that rebuilds and conserves the nation’s fish stocks begins with a strong and effective federal fisheries law. Without a good legislative base on which the judiciary can build, fish stocks are left vulnerable to executive agency actions.
We saw an example of that last year.
Upon taking office, Commerce Secretary Wilbur Ross expressed his desire to obtain “maximum sustainable yield from our fisheries,” and at the same time, he spoke of the need to “relieve the current burden of regulation that has shifted American economic growth overseas and made us uncompetitive on the world stage.”

In 2017, Secretary Ross turned his beliefs into action when he authorized the reopening of the 2017 red snapper season for private-boat anglers in the Gulf of Mexico, largely for economic reasons, even though staff had clearly informed him that such action would cause anglers to exceed their annual catch limit by forty percent.

Once again, an executive agency’s action violated Magnuson-Stevens’ prohibition against overfishing, and once again, conservation advocates asked the judiciary to intervene. In this instance, the season ended too soon to allow the court to take any action; however, the court ultimately retained jurisdiction over the matter, to prevent the agency from ignoring the law, with respect to red snapper, in 2018.

Yet the possibility that NMFS will violate the law again, with respect to another fishery, remains.
In March 2018, NMFS’ head Chris Oliver addressed the Seafood Expo North America, a commercial fishing industry event held in Boston where, according to the industry publication Undercurrent News, “he made it clear that he was using his leadership role to both follow the administration’s charge to combat excessive regulation and also looking out for harvesters.”

Mr. Oliver reportedly reaffirmed his support for science-based management, but also said that “I also believe that there is room for flexibility and a greater role for common sense frankly in our approach to fishery management. And I want to bring a more business-minded approach to that process.”
Over all, the tone of Mr. Oliver’s comments was far too reminiscent of NMFS’s tone in 1999, when it set the summer flounder quota, and the comments that accompanied the reopening of the 2017 red snapper season. Such an agency outlook can easily lead to agency actions that don’t comply with the law.

Thus, to keep the system of checks and balances intact, it is important to have strong fisheries laws that can be readily enforced by the courts. Pending legislation, such as H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, along with H.R. 2023 and S. 1520, the Modernizing Recreational Fisheries Management Act, chip away at such laws by granting the executive agency too much discretion to allow overfishing and delay the rebuilding of overfished stocks.

Both H.R. 200 and Mr. Oliver call that “flexibility,” but what it is, in fact, is the sort of legal uncertainty that makes it much more difficult for the courts to protect the public’s interest in healthy fish stocks.
Without the checks and balances provided by clear legislation, which the judiciary can easily enforce, we could easily revert to the days when an executive agency such as NMFS again believed that a management plan with a mere 18% chance of success came close enough for government work, although it never really came close at all.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/