A LIVING LABORATORY FOR FISHERIES MANAGEMENT

Congress is once again debating how to manage our fish in federal waters.

It has done that every ten years or so since the late 1970s, and it seems that every time, somebody pops up with an impassioned plea that we all repeat the mistakes of the past or engage in some expensive effort to reinvent the wheel.

Maybe in the ‘70s, when marine fisheries management was new, there was a reason to engage in such efforts.  Today, that’s not the case.

We already know how to get management right, and we have enough mistakes to learn from when it comes to getting it wrong.

As regular readers have probably figured out by now, I live on the South Shore of Long Island, and although I’ve fished on every coast in this country, most of the time you’ll find me within 100 miles of Fire Island Inlet, New York.  You might also have picked up on the fact that I’m an old-time New England groundfisherman, having cut my codfishing teeth at the age of six up in Provincetown, Mass., and taken my first cod, haddock, pollock and cusk (not to mention flounder, windowpane, ocean pout and various hakes)  well before I got out of high school.  I still fish for them today, when given a chance.

On any given day, anglers on my part of the coast—which we can generously define as anyone fishing between central New Jersey and Massachusetts’ Elizabeth Islands, may encounter fish managed by two different federal fisheries management councils—New England and the Mid-Atlantic—and also by the Atlantic States Marine Fisheries Commission.

And if they have fished in those waters for any significant amount of time, they have a pretty good idea about how successful those three bodies have been at conserving healthy stocks, addressing overfishing and nursing depleted stocks back to health.

There three management bodies had strikingly different success rates.  They also managed fisheries in strikingly different ways.

Policymakers, particularly the Senators and Representatives who will reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, which governs fishing in federal waters, would do well to look long and hard at those bodies’ successes and styles, figure out what worked, and then keep it a part of federal law—while making it harder to follow unproductive paths in the future.

The actions of federal fisheries management councils are strictly controlled.  The law requires them to end overfishing and rebuild overfished stocks within a time certain.  Management plans must have at least a 50-50 chance of achieving their goals, and all plans must be based on the best available science.  Management plans are subject to review by the federal courts, and there are many cases in which those courts, upon reviewing a plan, have told the National marine Fisheries Service to go back to the councils and come up with something that better complies with the law.

ASMFC, on the other hand, is an interstate compact comprised of every coastal state between Maine and Florida (including Pennsylvania and Washington, D.C.), plus the Potomac River Fisheries Commission, the United States Fish and Wildlife Service and the National Marine Fisheries Service.  Its fisheries management plans do not have to meet any legal standard; ASMFC need not—and often does not—end overfishing or rebuild overfished stocks.  It may ignore its scientific advisors with impunity, and, just a few years ago, a federal appellate court determined that its management plans are not subject to judicial review pursuant to the federal Administrative Procedures Act.

Despite that, prior to the year 2000, ASMFC probably had the most successful management record of the three.  It had one big success—recovering the collapsed Atlantic striped bass stock—which was one more than either the New England or the Mid-Atlantic Council could claim, although a few other species, such as tautog, American shad and river herring, were looking a little shaky. 

Up in New England, groundfish were as big a disaster as they ever had been, with even formerly abundant species such as winter flounder beginning to go into sharp decline.  In the Mid-Atlantic, summer flounder were showing some sign of recovery after bottoming out in ’89, but still had a long way to go, and other important recreational species, such as scup and black sea bass, weren’t looking all that good.

But there were changes in the air that were about to turn that around.

At ASMFC, fisheries management decisions, including those that led to the striped bass recovery, had historically been made mostly by fisheries professionals from the member states, with non-professionals—in the form of the governors’ appointees and legislative appointees—representing only a minority of the vote on any species management board.  However, shortly after striped bass were declared “recovered,” a change to ASMFC’s governing documents ushered in “caucus voting,” in which the votes belonged not to the individual commissioners, but rather to each state, which would first hold a “caucus” among its three representatives—its fisheries professional and the non-professional governor’s and legislative appointees—and then vote in the manner that the majority of such caucus desired.

Such change gave the non-professionals representing each state, who generally have some connection with the commercial or recreational fishing industries and thus often have a direct financial interest the outcome of a vote, the ability to override the state’s fisheries professional.  Although it is impossible to conclude that there was a direct cause-and-effect relationship, after the voting rules changed, ASMFC never restored another overfished stock, relatively healthy stocks slid into decline and some stocks slipped over the brink of collapse.  Even striped bass, ASMFC’s singular success story, will probably become overfished within the next year.

At the federal level, two things occurred a few years apart that changed the face of federal fisheries management.

The first was the passage of the Sustainable Fisheries Act of 1996 which, for the first time, required federal managers to end overfishing, recover overfished stocks within a time certain and conform their management actions to the best available science.  Such measures, which seem so obviously necessary today, were controversial and, at least among council members, widely resented at the time that the law was passed.  In fact, councils didn’t even take the law’s mandates seriously, and continued to turn out fisheries management plans that had little chance of successfully rebuilding and conserving fish stocks.

That’s when the other shoe dropped, in the form of a federal appellate court decision in Natural Resources Defense Council v. Daley.  In that decision, the court found—to fishermen’s and fisheries managers’ great surprise—that Congress actually intended to rebuild America’s fish stocks.  Thus, any fisheries management plan created pursuant to the law had to actually have a realistic chance of success, which the court defined as at least 50-50.  Plans more likely to fail than succeed were no longer legally acceptable.

NRDC v. Daley was inspired by a summer flounder management plan put together by the Mid-Atlantic Fishery Management Council, which had only a 17% chance of actually working.  Maybe that council’s members were embarrassed by the court’s decision, or maybe they just took their responsibilities as fisheries managers seriously, but at any rate, once that decision was handed down, the folks at the Mid-Atlantic got to work.  Although fishermen, the broader fishing industry (recreational and commercial) and various fishing organizations and fishing publications were extremely critical of its efforts, engaging in hyperbole that often reached out beyond the realm of either civility or reason, the Mid-Atlantic Council established strict annual catch limits, based on the poundage of fish killed, for the stocks that it managed, and was not afraid to shut down fisheries when it appeared that harvest would exceed the limits that it established.

As a result, today the Mid-Atlantic Fishery Management Council is the only fishery management council in the country that has completely eliminated overfishing, and does not preside over a single overfished stock.

Up in New England, things are a little different.

Although bound by the same federal law to end overfishing and rebuild stocks, the New England Fishery Management Council did not follow the same course that the Mid-Atlantic did.  Until the law changed in 2007, it never adopted fisheries management plans that included hard poundage quotas.  Instead, it attempted to constrain harvest by means of so-called “input controls,” such as a limitation on the number of days at sea that a permitted boat could fish, that reduced effort, but not necessarily the amount of fish that enterprising fishermen could land.

And since New England’s commercial fishermen are nothing if not enterprising and creative when it comes to their fishing, it’s probably predictable that such input controls failed to reduce harvest enough to successfully rebuild stocks and, in fact, saw some stocks such as Georges Bank cod continue to decline.

The 2006 reauthorization of the Magnuson Act finally forced the New England Council to adopt hard quotas for every species that it manages, but by that point, many stocks were very badly depressed and rebuilding will be a much greater challenge.  As of the end of last year, out of the 32 species managed by the New England Council, 8 are still subject to overfishing, and 10 remain overfished. 

Thus, southern New England and the upper Mid-Atlantic, along with ASMFC, provide a living, fisheries management laboratory for Congress and other policymakers. 

They can see and evaluate the relative success of a fishery management council that is required to end overfishing and rebuild overfished stocks, and has imposed firm annual catch limits on every species that it manages to do so.  They can compare that to a second federal management council that is under the same rebuilding and conservation requirements, but chose to pursue such goals—until the law changed in 2007, at least—not through the use of hard poundage quotas, but by more “flexible,” alternate means such as days at sea limitations, and avoided mid-season closures.

And they can examine the success—or the lack thereof—of an interstate compact that enjoys the ultimate management “flexibility,” and is not legally required to end overfishing or rebuild stocks, appears immune to judicial review and can choose to elevate social and economic concerns above scientific recommendations and the health of fish stocks.

The results pretty much speak for themselves, with only the Mid-Atlantic Fishery Management Council, with its mandatory rebuilding deadlines, its commitment to science and its imposition of hard poundage quotas managing to eliminate overfishing and rebuild overfished stocks on a consistent basis.

That’s not a result that should be taken lightly, and should tell lawmakers all they need to know about what the Magnuson Act should look like when the current reauthorization is done.