Sunday, January 19, 2014


Almost fourteen years ago, a federal judge writing for the District of Columbia circuit handed down what was arguably the most important fisheries management decision ever written.  The case was Natural Resources Defense Council v. Daley, and the decision contained the following, unforgettable words:

The disputed 1999 TAL had at most an 18% likelihood of achieving the target F. Viewed differently, it had at least an 82% chance of resulting in an F greater than the target F.  Only in Superman Comics' Bizarro world, where reality is turned upside down, could the Service 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." [emphasis added]
Natural Resources Defense Council v. Daley was the turning point for not only summer flounder, but for fisheries management in the United States.  Compelled by the court to draft a truly effective fisheries management plan, the National Marine Fisheries Service engineered a spectacular recovery of the stock. Today, anglers along the eastern seaboard are seeing—and catching—more and larger fish than they have in decades.  Because NRDC v. Daley was handed down by the influential D.C. circuit, it has since informed fisheries management decisions throughout the United States.

Now, it seems that the Recreational Fishing Alliance, a New Jersey-based “anglers’ rights” group, wants to take fisheries management out of the 21st Century and banish it back to Bizarro world.

That revelation emerged from an RFA press release issued last Thursday, entitled “Summer Flounder Regionalization a Shared Recipe for Disaster”.   I touched on ASMFC’s efforts to manage summer flounder on a regional basis in a previous blog (, which noted the New Jersey angling community’s rejection of the concept.  So at first glance, I assumed that the RFA release was merely one more expression of Garden State anglers’ refusal to share with their neighbors.

But after I read it, I realized that the release was less a comment on regional management and more an RFA lament over its loss of the pre-NRDC v. Daley world.  Jim Donofrio, RFA’s Executive Director, observed

"In 1998 when the summer flounder stock was rebuilding and not yet as fully robust as it is today, New Jersey had 2.7 million fluke while the state of New York had 1.2 million fish, yet here we are with a healthy, rebuilt fluke stock and we're looking at 75% of that 1998 fishery allocation under a status quo, do nothing management approach."

Summer flounder were badly overfished in 1998, and overfishing was still occurring, which is why anglers in New York and New Jersey killed so many fish that year.  Back then, summer flounder management still took place in Bizarro world.  Suggesting that 1998 harvest levels should inform the quota-setting process today is at least as bizarre. 

Managers had to reduce that kill to recover the stock.  Today, we take fewer fish to keep the stock at a sustainable level. 

That seems like a rational policy, and not too difficult to understand, but apparently Donofrio remains confused.  He claimed that

"Anyone with common sense, perhaps not a PHD in science or high-level marketing position at an environmental society, would be dumfounded to think that we were assigned more fish when the stock was rebuilding and 75% less once the fishery was declared rebuilt," Donofrio said, adding "and therein lays the fatal flaw in the management system."

If you read the whole press release, you’ll find that Donofrio rails against a lot of things and not just that one “fatal flaw.”  He also condemns a “status quo do nothing management approach,” “erroneous landings estimates produced by a still broken recreational data collection system,” “dangerous and arbitrary” provisions of the Magnuson Act,” and “a totally inadequate and scientifically untenable [summer flounder] quota amount.”

Nick Cicero, a member of RFA’s board of directors, also chimes in to complain about unspecified “ills of a broken management system” and “the repeated failures at NMFS during their 20 years of irresponsible stewardship.”  With respect to the latter point, it’s not clear whether Cicero used the phrase “20 years” loosely, in reference to the period since the courts evicted NMFS from Bizarro world, or whether he truly meant the period since 1994, which encompasses just about all of the summer flounder’s recovery.  It is also unclear whether he approved of NMFS management more than 20 years ago, back when the agency permitted not only the summer flounder stock, but just about every other important groundfish stock in the northeast to decline to—or beyond—the brink of collapse.
Either way, neither Cicero nor Donofrio offers a concrete solution to their perceived problems.  They talk about “efforts to fix federal fisheries law,” and request people “to get on the same page and call for Magnuson reform,” but offer no clear answers.
But if you know anything about the RFA, you know that for many years, it has dedicated itself to weakening the conservation provisions of the Magnuson Act.  It has taken public positions against “rebuilding provisions and rigid overfishing language hardcoded into the federal fishing law”, and staged rallies to weaken such provisions.   
In other words, it wants to do away with the strong legal requirements that allowed managers to rebuild the summer flounder, and so many other once-depleted stocks.  

It wants to go back to 1998, when an 82% chance of failure was good enough, and fisheries managers lived in Bizarro world.

If RFA ever succeeds in gutting the conservation provisions of the Magnuson Act, anglers might well get larger annual quotas.  However, without changes at ASMFC, they way such quota is distributed will not change.  New Jersey will still get 39%--more than twice the fish given to any other state—and it will not have to share with its neighbors.  Its fishing-related businesses will enjoy exactly the same competitive advantages that they enjoy today.

RFA’s press release calls ASMFC’s proposed regional management plan “a recipe for disaster” and “another ‘train wreck’ in the making.”  People who want more information about the release are directed to call Jim Hutchinson, Jr., RFA’s Managing Director.  I suspect that if anyone did, he would strongly support the RFA position and oppose the “train wreck.”

However, Hutchinson also wears a different hat.  He is President of the New York Sportfishing Federation, where he has served New York’s summer flounder anglers well.  Hutchinson sat in the chair directly in front of mine at a recent ASMFC hearing on Addendum XXV, and I couldn’t help but hear him discussing the best way to support the regionalization proposal with his Federation colleagues.

Hutchinson has also been a strong and consistent supporter of Senator Charles Schumer’s “Fluke Fairness Act,” which was introduced in the Senate last year (  If signed into law, that bill would achieve the laudable goal of voiding the current state-by-state allocation.  As part of that support, Hutchinson stood behind Sen. Schumer at a “fluke fairness” event held at Captree State Park a week ago (  Last fall, he even took a place at the podium next to the Senator, and spoke in favor of his bill (

Thus, one must wonder whether RFA’s opposition to regional management is really as strong as the press release suggests.  Hutchinson wasn’t wearing his RFA hat when he appeared at Sen. Schumer’s events, but he was still RFA’s Managing Director, with all of the duties that title entails. 

Representing one organization that supports regionalization and one that’s against it, at exactly the same time, would be a very difficult thing to do.  

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