Over the past two decades, federal fisheries managers have met
with real success. Since 2000, the number of fish stocks subject to overfishing
has fallen from 72 to 30. During the same
period, the number of overfished stocks has declined from 92 to 38, with 41 of
them now fully rebuilt.
The key to that success has been the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens), and its
requirements that fishery managers employ the best available science, halt
overfishing and rebuild overfished stocks in the shortest possible time.
Should the National Marine Fisheries Service (NMFS) issue a
regulation that fails to adhere to such standards, that regulation may be
successfully challenged in the federal courts. While some complain that
Magnuson-Stevens’ mandates are unduly strict, they help assure that
fishery managers will take necessary, but politically unpopular, actions to
conserve and rebuild fish stocks.
Unfortunately, a series of
recent administrative actions have whittled away at the effectiveness of
federal fisheries laws, including Magnuson-Stevens, and have threatened the
health and continued recovery of saltwater fish stocks.
The first of such actions occurred in June 2017, when the Secretary
of Commerce (Secretary) decided that the National Marine Fisheries Service
should reopen the private-boat
recreational red snapper season in the Gulf of Mexico, even though
such reopening would lead to substantial overfishing.
An email from Earl Comstock,
the Director of the Commerce Department’s Office of Policy and Strategic
Planning, to Secretary Wilbur Ross explicitly acknowledges that such reopening
“would result in overfishing of the stock by six million pounds (40%), which
will draw criticism from environmental groups and commercial fishermen.”
Although allowing such
overfishing would clearly violate Magnuson-Stevens’ National Standard 1, which
states that “Conservation and management measures shall prevent overfishing,”
Comstock cynically noted that, despite such opposition, “Under the Magnuson
Stevens Act a court can’t issue a temporary restraining order, so your action
would remain in effect for at least 45 days before a court could act.”
Thus, one of the bedrock
provisions of Magnuson-Stevens, its unequivocal ban overfishing, was knowingly
and intentionally sidestepped by the agency that is charged with conserving and
rebuilding the nation’s fishery resources.
Red snapper were also at the heart of another NMFS action that
violated the spirit, and probably also the letter, of Magnuson-Stevens. In that
case, NMFS approved an “Emergency
Action Request” by the South Atlantic Fishery Management
Council (SAFMC) to allow limited commercial and recreational red snapper
fisheries in 2017.
South Atlantic red snapper had become badly overfished. After 2014, landings were
prohibited because the mortality of snapper that were released,
after being caught accidentally by fishermen seeking other species, exceeded
the acceptable biological catch (ABC). However, after a new benchmark stock
assessment was completed in 2017, NMFS told the SAFMC that basing the ABC on dead discard
estimates of uncertain accuracy wasn’t a sound practice. That led to
a situation where, although an ABC for red snapper could not be established,
the SAFMC could still set an annual catch limit. The SAFMC, taking advantage of
that situation, asked NMFS to open a red snapper season in 2017.
There was no data suggesting that opening such a season would,
like reopening the recreational season in the Gulf of Mexico, lead to
significant overfishing. However, there was also no data suggesting that
opening the South Atlantic season wouldn’t cause
overfishing. There just was no reliable data at all.
Magnuson-Stevens requires that “Conservation and management
measures shall be based on the best available science,” and further requires
that councils “develop annual catch limits…that may not exceed the fishing
level recommendations of its science and statistical committee.” Yet instead of
basing the South Atlantic red snapper season on “the best scientific
information available,” NMFS actually based it on scientific
information that was not available; that is, NMFS believed that the season
could be opened “based on the uncertainty in the assessment” associated
with various factors relevant to the snapper fishery, including the magnitude
or the recreational discards, rather than on any quantifiable data.
It also allowed landings in 2017 equal
to those that occurred in 2014, even though overfishing occurred in that
year.
It’s possible that NMFS could allow fishing for red snapper
without harming the stock’s recovery. There is no question that the stock has been steadily
rebuilding. Roy Crabtree, administrator of NMFS’ Southeast Region, has reportedly said that
“When I look at the…data and see the upward trajectory, yeah, I have a hard
time continuing justifying the closure.”
Thus, the mere fact that the
season was opened didn’t generate criticism. Criticism arose because the SAFMC,
wanting to open a season in what remained of 2017, placed an undue emphasis on
speed. In its haste to act, the SAFMC failed to solicit its science and
statistical committee’s views on whether the season should be opened, and also
failed to seek the committee’s input on proposed regulations that would govern
the reopened fishery.
Holly Binns, of the Pew
Charitable Trust’s fishery conservation program, noted that “speed
may come at the price of science, because the council doesn’t plan to have its
science advisers review its decision. The advisers’ job is to provide guidance
on the number of fish that can be caught while still preventing
overfishing…Fishing for red snapper should resume only if scientists determine
it can be done without jeopardizing a healthy future for this popular fish.”
That’s a reasonable comment,
given that good fishery management is entirely dependent upon the use of good
science. Unfortunately, the decision to open a South Atlantic red snapper
season wasn’t the only Commerce Department action that ignored the importance
of fisheries science. A decision that the agency made last July, affecting the
summer flounder fishery, may have much graver and longer-lasting consequences.
In that case, the relevant law wasn’t Magnuson-Stevens, but the Atlantic Coastal Fisheries
Cooperative Management Act(Cooperative Management Act), a law which
gives the Atlantic States Marine Fisheries Commission (ASMFC) the power to
impose its fishery management plans on recalcitrant states.
Pursuant to the Cooperative
Management Act, should ASMFC find that any state has failed to comply with the
provisions of any of its fishery management plans, it must notify the Secretary
of such finding. The Secretary then has 30 days to make an independent
determination of 1) whether the state is, in fact, out of compliance, and 2)
whether the provisions of the management plan are necessary for the
conservation of the species in question. If the answer to both questions is
yes, the Secretary is required to impose a moratorium on all fishing for the
relevant species in the noncompliant state, until such time as the state comes
into compliance.
Thanks to the Cooperative Management Act, which became law in
late 1993, the chaotic web of inconsistent state regulations that had
previously governed inshore fisheries was replaced by ASMFC’s cooperative
management plans. Although individual states often disagreed with ASMFC decisions,
few were willing to go out of compliance and have a moratorium imposed on their
fisheries; on the rare occasions when a state did take such action, the Secretary had always
supported ASMFC’s noncompliance finding.
That changed in July 2017, after New Jersey defied the
collective decision of ASMFC’s Summer Flounder, Scup and Black
Sea Bass Management Board and adopted regulations that fell short of those
imposed by the most recent addendum to
ASMFC’s summer flounder management plan. ASMFC found New Jersey to be
out of compliance “based on hours of [Management] Board
deliberation and rigorous Technical Committee review…[and on] Technical
Committee findings that New Jersey’s measures were not
conservationally-equivalent to those measures in” such addendum.
For the first time in the history of the Cooperative Management
Act, the Secretary overruled ASMFC’s noncompliance finding, and supported the
noncompliant state. A letter issued by NMFS,
informing ASMFC of the Secretary’s finding, stated that “New Jersey makes a
compelling argument that the measures it implemented this year, despite increasing
catch above the harvest target, will likely reduce total summer flounder
mortality in New Jersey waters to a level consistent with the overall
conservation objective.”
However, NMFS’ letter, and
the Secretary’s decision, are notable for the fact that, before overruling
ASMFC’s finding, the agency failed to consult with its own local experts on the
relative merits of New Jersey’s and ASMFC’s arguments.
John Bullard, regional administrator for NMFS’ Greater Atlantic
Region Fisheries Office, told the Boston Globe that “This is the first time that no one
asked me for a formal recommendation. The secretary’s decision goes against
long-standing protocol, and there’s a cost to that. There’s a reason to have
regional administrators, because their experience and knowledge is valuable in
making decisions like this one. This is an unfortunate precedent.”
Bullard went on to say that
the “chain of command was broken with this decision…This is a system that keeps
all states accountable to each other. We’re going to have to have to figure out
how to repair that system.”
Certainly, such repair is
badly needed, if the Cooperative Management Act is to function as Congress
intended. However, given the Secretary’s and NMFS’ recent actions, it’s not
clear that the agency is particularly concerned with carrying out the will of Congress,
with respect to federal fisheries law.
In a recent speech to Alaska fishermen, Chris Oliver, NOAA’s Assistant
Administrator for Fisheries, said that the current
administration is “looking at [regional fishery management] councils to take a
step back and look at ways not to have a tendency toward micromanagement but to
look at the big picture.” In accord with that philosophy, he has amended the
planning document that sets out NMFS’ 2018 priorities to include goals such as
“maximize fishing opportunities while ensuring the sustainability of fisheries
and fishing communities,” “responsible fishing and resource development” and
“regulatory efficiency.”
According to the seafood
industry publication Undercurrent News,
his priorities include giving regional fishery management councils additional
flexibility, streamlining the regulatory process and expanding seafood
production.
That being the case, we can
probably expect to see more administration decisions that incrementally weaken
the effectiveness of federal fisheries laws. And we can expect conservation
measures to languish.
In fact, we’ve probably already seen one of the consequences of
the administration’s policy at ASMFC when, in mid-November 2017, its Atlantic Menhaden Management
Board ignored the comments made by nearly 160,000 citizens and
failed to adopt interim ecosystem reference points, which would have imposed
limitations on harvest based not on the mere sustainability of the menhaden
stock, but also on the menhaden’s role as a forage fish for a host of
predators.
The decision was both a surprise and a disappointment for
conservation advocates, who had received many verbal commitments from
management board members, who said that they supported such interim reference
points. However, the decision was praised by
Omega Protein Corp., which harvests the lion’s share of the menhaden
on the East Coast and opposed the interim measures.
Some management board members, after the vote, noted that
implied threats by the Commonwealth of Virginia, where Omega is located, played
a role. For example, one board member
wrote “we’re bummed about the way this meeting went, and
particularly the lack of spine the Commission had because they were afraid of
VA going out of compliance. We can, for all intents and purposes, thank New
Jersey for that.”
But New Jersey’s failure to
comply with the summer flounder management plan would have had no impact on
menhaden, had it not been for a sympathetic administration in Washington, that
has condemned our federal fisheries laws to a “death of one thousand cuts,”
undercutting their provisions a small bit at a time whenever the opportunity
arises.
In doing so, they condemn our
fish stocks to the death of one thousand cuts as well.
----
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/
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