FEDERAL FISHERIES: ULTIMATELY ACCOUNTABLE

The best fisheries management ideas are essentially worthless if they aren’t enforced.

Thus, when the Magnuson-Stevens Fishery Conservation and Management Act was reauthorized a decade ago, it included the provision that

“establish a mechanism for establishing annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.  [emphasis added]”

Prior to the adoption of such provision, there was often a real incentive for fishermen to fight against the sort of restrictive fishery management measures that were sometimes needed to constrain harvest within biologically appropriate levels.  

While some commercial fisheries, managed on a hard-quota basis even before such reauthorization took place, did require paybacks of harvest overages in previous years, fisheries without hard quotas faced few consequences, other than an increasing shortage of fish, for chronically overfishing target stocks.

The groundfish stocks managed by the New England Fishery Management Council, which eschewed hard-poundage quotas for such so-called “input controls” such as limiting days at sea, probably provides the best example of unaccountable fisheries.  Overfishing such stocks was not subject to any sort of meaningful penalties.  As a result, a 2008 assessment of groundfish stocks found important fish such as cod and various flounder to be badly overfished.

Recreational fisheries, too, were historically immune to any sort of meaningful payback program; overages might result in tightened regulations, but the annual recreational catch limit was not reduced as a result.  The recreational red snapper fishery in the Gulf of Mexico was a prime example of anglers not being held accountable for overfishing; even though they chronically exceeded their annual catch limit, they did not face any sort of payback until a framework amendment to the fishery management plan was adopted in 2014.

2014 also saw a federal court order the National Marine Fisheries Service to impose accountability measures on the recreational red snapper fishery in the Gulf to address such chronic overages.

Such accountability measures help to assure that NMFS’ conservation and stock rebuilding measures remain on track, and that United States citizens can enjoy the benefits that flow from healthy, fully-restored fish stocks.

However, while it is important to hold fishermen accountable in order to properly manage fish stocks, it is even more important to keep fishery managers accountable to the public for their obligation to restore and properly manage fish stocks.  It is in this realm of accountability that Magnuson-Stevens shines particularly bright, and where it is far superior to any state’s fishery management laws.

Much of that superiority arises out of Magnuson-Stevens' clear guidelines.  Overfishing must be ended.  Stocks must be rebuilt as quickly as possible, within a time certain that is very clearly set out in the law.  Annual catch limits must be established, and the best available science must be used to establish management measures.

Those clear standards make it relatively easy for aggrieved parties to put federal fisheries managers back on their proper course should they veer astray for any reason.  

As early as 2000, a federal appellate court decided the case of Natural Resources Defense Council v. Daley, where such court found that

“’to assure’…achievement of the target [fishing mortality rate], to ‘prevent overfishing,’ and ‘to be consistent with’ the fishery management plan, the [total allowable landings] must have had at least a 50% chance of attaining a [fishing mortality rate] of 0.24 or lower…

“The disputed 1999 [total allowable landings] 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 the [National Marine Fisheries] 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.”

With those words, the court in Natural Resources Defense Council v. Daley established a legal standard for federal fisheries managers, requiring that any federal fishery management plan had to have at least a 50-50 chance of achieving its goals, including the goal of preventing overfishing.  

Such a standard could never have been established without the clear guidelines established by Magnuson-Stevens.

Recently, the United States Department of Commerce, acting through its subsidiary agency, NMFS, has taken an action that should qualify the people involved as permanent residents of Bizarro world comics.  

Magnuson-Stevens includes, in its National Standard One, a crystal-clear requirement that

“Conservation and management measures shall prevent overfishing,”

but the agency has reopened the private-boat red snapper fishery in the Gulf of Mexico, even though, by the agency’s own admission,

“The stock is still overfished,”

and

“the approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.  [emphasis added]”

And once again, the private sector is rallying to put the public-sector fisheries managers back on course, challenging the patently illegal agency action in court.  

The matter, Ocean Conservancy v. Ross, has been brought in federal district court in Washington, D.C.; the Ocean Conservancy, the Environmental Defense Fund, and Earthjustice, which provides litigators skilled in conservation advocacy, are collaborating in the effort.

A release issued by Environmental Defense Fund notes that the lawsuit was necessary because

“The Commerce Department decision puts red snapper recovery at risk, jeopardizing fishing businesses and recreational fishing for the species.  It also violates several provisions of federal law.  No scientific analysis accompanied the decision, but publicly available data and conservative assumptions show the extended season will result in private anglers catching three times their science-based limit.  The lawsuit does not seek to change the length of the 2017 season, but instead seeks to prohibit the Department of Commerce from taking future similar actions that continue to jeopardize the species.”

An Ocean Conservancy blog relates a similar message, saying

“The department has set a dangerous precedent by deliberately undercutting the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which requires science-based limits to prevent overfishing and rebuilding plans to return vulnerable fish stocks back to healthy levels.    It is ignoring the proven success of the science-based strategies that have put America at the forefront of sustainable and economically productive fisheries.  Made behind closed doors, the public was not given the usual opportunities to weigh-in on this decision.  And it benefits only one sector of a fishery used by many, turning a blind eye to years of hard sacrifices made by fishermen and coastal communities.”

One of the few public comments condemning the lawsuit came in a truculent e-mail from David Cresson, Executive Director of the Louisiana chapter of the Coastal Conservation Association, who reportedly wrote

“Of course they sued, that’s what the environmental groups do…They hate it when Americans enjoy America’s plentiful public resources.”

In that e-mail, Mr. Cresson seems to have carefully avoided the legal or biological implications of the season reopening, both of which might have proved difficult for his organization to defend. 

Mr. Cresson and the Coastal Conservation Association, which he represents, have been frequent critics of federal management of red snapper in the Gulf of Mexico.  CCA has endorsed the Commerce Department’s decision to reopen the season,  and has also long endorsed the concept of turning all authority for red snapper management over to the states.

State management appears attractive to groups such as CCA because states are not bound by Magnuson-Stevens, and thus are under no legal requirement to end overfishing or rebuild overfished stocks. 

While they are arguably subject to litigation if they act irresponsibly, state law does not contain the clear management standards included in the federal statute.  Instead, state litigation would be governed by the general principles of administrative law, in which agency decisions would stand if they are not arbitrary, capricious or contrary to existing law. 

Whether a state agency action is arbitrary or capricious is governed by a principle known as the “substantial evidence rule.”  Although its particulars differ in every jurisdiction, the rule stands for the principle that courts will not second-guess agency decisions if there is any evidence at all on the record that would support the agency action, even if such evidence is contradicted by other evidence that the court might deem far more convincing.

Thus, a substantial body of scientific data could be ignored by an agency that prefers to believe a few fishermen or tackle dealers who tell them that “there are plenty of fish out there; you just need to know where to find them.”

The fact that CCA and allied organizations are supporting H.R. 2023, and its language

“facilitating greater incorporation of data, analysis, stock assessments, and surveys from State agencies and nongovernmental sources,”

including fishermen, is another clue as to what such groups are trying to achieve and why they oppose current federal fisheries law.

And that’s why it’s so important to keep the conservation and stock rebuilding provisions of Magnuson-Stevens intact.  

They provide objective standards that managers must employ when setting regulations.  They require that the best science available be used.

And on those rare occasions when fishery managers act contrary to the public interest in maintaining healthy, fully restored fish stocks, they provide a way for the courts, acting on behalf of that public interest, to provide the ultimate accountability measure, a legal decision that compels federal fishery managers to maintain healthy and sustainable stocks.