Managing federal fisheries is a relatively simple process,
thanks to the Magnuson-Stevens Fishery Conservation and Management Act(Magnuson-Stevens).
Pursuant to Magnuson-Stevens, “Conservation and management
measures shall be based on the best scientific information available.” Such
“Conservation and management measures shall prevent overfishing.” To better
assure that overfishing doesn’t occur, each regional fishery management council
must “develop annual catch limits for each of its managed fisheries that may
not exceed the fishing level recommendations of its science and statistical
committee…”
Thus, while there is often squabbling about the details—such
things as the level of recreational harvest, allocations and the specific
measures used to manage a particular stock of fish—the framework used to
conserve and manage fish populations is largely cast in stone.
On the state level, things tend to be much more fluid. With a
few very limited exceptions, Magnuson-Stevens doesn’t apply within state waters
and, to date, no court has found that any state’s fishery statutes require
managers to employ similarly rigorous conservation and management measures.
Intermediate between the
state and federal level of management lie three interstate commissions, the Atlantic States Marine Fisheries Commission (ASMFC), Gulf States Marine Fisheries Commission and Pacific States Marine Fisheries
Commission, which are interstate compacts, ratified by Congress,
organized to promote cooperative fisheries management between the states.
All three commissions, as initially established, served in a
solely advisory capacity; each could recommend fishery management measures, but
could not compel such measures’ adoption by the states.
That is no longer the case for ASMFC.
In 1993, Congress passed
the Atlantic Coastal Fisheries Cooperative Management Act (Cooperative Management Act), which
required member states to comply with fishery management measures adopted by
ASMFC.
Should ASMFC find that any state was not in compliance with a
mandated management measure, the Cooperative Management Act requires that
notice of such finding be sent to the Secretary of Commerce (Secretary). The
Secretary then has up to 30 days to make an independent determination that such
state is out of compliance and that “the measures that the State has failed to
implement and enforce are necessary for the conservation of the fishery in
question.”
Before making any determination, “the Secretary shall give
careful consideration to the State that the Commission has determined…is not in
compliance…and provide such State, upon request, with the opportunity to meet
with and present its comments directly to the Secretary.”
If the Secretary ultimately imposes a moratorium, such
moratorium must go into effect within six months after that determination is
made.
Since 1993, ASMFC’s management decisions went largely
unchallenged. From time to time, states went out of compliance and, once in a
great while, a moratorium was imposed, but states normally backed down in the
face of a threat to their fisheries, and any moratorium imposed lasted for only
a very short time.
This year, ASMFC faces a more serious challenge.
In August 2016, the Mid-Atlantic Fishery Management Council (MAFMC)
learned that six years
of poor reproductive success had caused the summer flounder population to
decline so far that it would soon become overfished if harvest wasn’t reduced.
In response,MAFMC adopted annual catch limits intended to reduce fishing mortality by
30%.
In December, MAFMC decided
that states, acting through ASMFC, might set their own summer flounder regulations, so long as
such regulations yielded the same coastwide conservation benefits as a 4-fish
bag limit, 19-inch minimum size and a season that ran from June 1 through
September 15.
MAFMC’s actions drew a
strong reaction from some members of the angling community, but nowhere was the
reaction as strong, or as frenetic, as it was in New Jersey. An article published in The Fisherman, a New
Jersey-based magazine and website, began “I’m about to really tick you off.
Seriously, reading any farther is just going to make you incredibly angry.” It
warned anglers about a purported 2-fish bag limit, 19-inch minimum size and a
three-month season “at best,” a suite of measures far more restrictive than
anything that was being seriously considered by either MAFMC or ASMFC.
The reality was far more
benign. On February 1, 2017, ASMFC’s Summer Flounder, Scup and Black Sea Bass
Management Board (Management Board) established summer flounder regulations for Connecticut, New York and New
Jersey. While the Management Board did increase the minimum size to 19 inches,
it allowed anglers to retain three fish, not two, and left the entire 128-day
season intact.
Connecticut and New York
adopted such regulations, but New Jersey refused to abide by the Management
Board’s decision. Bob Martin, Commissioner of the New Jersey Department of
Environmental Protection, announced that “We
will use every legal and administrative tool available to stop these unfair
cuts that will devastate our state’s fishing industry and have far-reaching
impacts on the shore economy.”
He went on to question
whether the fluke population was in decline, saying that “Our data has consistently
shown that our fluke population has been stable since 1992,” although such
observation could hardly help New Jersey’s case, since, in 1992, the summer flounder population was badly overfished.
New Jersey then appealed the Management Board’s decision to ASMFC’s Interstate Fishery
Management Policy Board (Policy Board). Such protest claimed that the
Management Board based its decision on flawed science, that it failed to
consider public comment, that it failed to consider the economic impacts that
harvest restrictions would have on New Jersey and that the draft Addendum
proposing such reductions contained printing errors when released to the public
for comment. All but one of those grounds were summarily rejected; an
appeal based on the printing errors remains pending.
New Jersey also took
another, much more consequential action. On May 18, upon the recommendation of
the New Jersey Marine Fisheries Council, the Department of Environmental
Protection adopted new regulations which
retained the state’s 18-inch minimum size, reduced the bag limit to 3 fish and
shortened the season to 104 days. New Jersey submitted such regulations to the
Management Board for approval, arguing that they had the same conservation effect as the regulations that the Management
Board had adopted in February.
ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical
Committee (Technical Committee) reviewed the New Jersey regulations, and
disagreed. So did the Management Board. The harvest reductions achieved by the
New Jersey regulations fell so far short of the target that not a single member
of the Management Board would even second New Jersey’s motion to approve its
new rules.
The Management Board then
went on to find New Jersey out of compliance with the summer flounder management
plan.
On June 1, the Policy Board also found New Jersey out of compliance, but New Jersey has kept the noncompliant regulations in place. The
matter has now been referred to the Secretary, who will determine whether a
moratorium will be imposed.
The Secretary’s decision could well decide not only the future
of the summer flounder, but also the future of the cooperative interstate
management system itself.
The current Secretary,
Wilbur Ross, has said that
“Given the enormity of our coastlines, given the enormity of our freshwater, I
would like to figure out how we can become much more self-sufficient in fishing
and perhaps even a net exporter.” He has also said that he sees a need for
“obtaining maximum sustainable yield for our fisheries.”
It’s not clear from those statements whether Secretary Ross
would favor conservative management measures which would allow fish stocks to
fully recover, produce maximum sustainable yield, and thus provide more product
for both domestic use and export, or whether he would favor more relaxed
regulations that would set all annual catch limits at maximum sustainable
yield, rather than at lower levels that would provide room for error and more
reliably conserve and rebuild pressured stocks such as summer flounder.
If the Secretary wants to rebuild fish stocks and maximize their
long term, sustainable yield, he is likely to endorse the Policy Board’s
decision, and promptly impose a moratorium on summer flounder fishing in New
Jersey waters until the state comes into compliance. In such case, both the
fish and the fishery management system can look forward to a healthy and
productive future.
If, on the other hand, the Secretary believes that fishery
regulations need to be relaxed, he is more likely to favor New Jersey’s
position. In such case, one of two things might happen.
The Secretary might find that New Jersey is out of compliance
with management measures needed to conserve the summer flounder stock, and
impose a moratorium, but make such moratorium effective after the close of New
Jersey’s summer flounder season. That would effectively defer a final decision
until next year, and provide an opportunity for biological or political events
to render the noncompliance finding moot.
Or, the Secretary could find that the measures adopted by the
Management Board are not “necessary for the conservation of the fishery in
question,” and allow New Jersey to maintain its current regulations.
Neither of those alternatives would bode well for the future of
the summer flounder or the fishery management system.
Even under the best circumstances, in which the Secretary agrees
with ASMFC’s position and promptly imposes a moratorium, New Jersey anglers
will have been able to fish under noncompliant regulations for at least four or
five weeks; after that, compliant rules could be adopted to avoid a moratorium.
That opportunity alone could tempt states to go out of compliance in other
fisheries, particularly in fisheries where relatively short seasons make the
benefits of going out of compliance disproportionately high.
Delaying the imposition of a moratorium, and so allowing anglers
to enjoy noncompliant regulations for an even longer time, would make the
noncompliance option even more tempting.
However, should the Secretary explicitly decide in New Jersey’s
favor, he might well ring the death knell for the interstate management system.
If Secretary Ross allows New Jersey to adopt regulations that
failed to gain Technical Committee approval, and were universally rejected by
every other member of the Management Board, he will be inviting every ASMFC
state to adopt inadequate regulations based on questionable data, in the hope
that even such weak rules will somehow pass secretarial muster.
If he decides in New Jersey’s favor, he will make noncompliance
a win-win strategy for every state. At worst (from a state’s viewpoint), states
will be able to let their anglers fish for weeks, perhaps even months, pursuant
to noncompliant regulations. At best, states will be able to avoid more
restrictive ASMFC management measures completely, letting their neighbors
shoulder the responsibility for rebuilding and maintaining fish stocks.
The Cooperative Management Act hasn’t been a panacea for East
Coast fisheries management. It still has many flaws. However, thanks to the
Cooperative Management Act, ASMFC’s fisheries management efforts have been far
more effective than the chaos that existed before.
But a cooperative management system only works if everyone
cooperates. Once a state is allowed to adopt regulations less restrictive than
those imposed on everyone else, it won’t be long before the other states begin
to become uncooperative, too.
And that could only cause the entire interstate management
system to come crashing down.
----
This post first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network.
It, along with posts from a number of other fishermen on the Atlantic,
Gulf and Pacific coasts, can be found at http://www.conservefish.org/blog/
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