WOULD MENHADEN HAVE DONE BETTER UNDER MAGNUSON-STEVENS?

Regular readers of this blog know that I am an enthusiastic supporter of the Magnuson-Stevens Fishery Conservation and Management Act, and more particularly, of the conservation and management provisions of that act which prohibit overfishing and require the timely rebuilding of overfished stocks.

Those regular readers also know that I am a frequent critic of the Atlantic States Marine Fisheries Commission, and other state management systems, largely because they don’t have such legally-enforceable requirements, and often make decisions in which economic, political and social considerations are elevated above the need to maintain and restore healthy fish populations. 

To that end, it’s probably worth noting that ASMFC’s former vision statement

“Healthy, self-sustaining populations for all Atlantic coast fish species or successful restoration well in progress by the year 2015”

has been abandoned, and has been replaced by

“Sustainably Managing Atlantic Coastal Fisheries.”

All mention of “healthy”populations and “successful restoration”, much less “by the year 2015”, has been deleted, which probably makes sense from ASMFC’s standpoint, as the aspirations expressed its previous vision statement, while certainly noble and worthwhile, were never matched by the organization’s real-world accomplishments, largely because the lack of legally-enforceable standards made it easy for ASMFC’s various species management boards to avoid making the kind of hard, but always unpopular, decisions that are often needed to successfully restore badly depleted fish stocks

ASMFC’s management process was criticized once again last November. 

Prior to that meeting, the Management Board had been deluged with comments from the public, which overwhelmingly supported the adoption of interim biological reference points, which would have required managers to consider menhaden’s role as a forage fish, and not just fishing’s impact on the sustainability of the stock, and opposed any increase in menhaden harvest.  However, in the end, the Management Board voted the other way, rejecting the interim reference points and increasing the annual catch limit.

Such votes came as a surprise to many in the conservation community, including both the professionals at various non-governmental organizations and the many concerned individuals who thought that Management Board failed to properly represent the public’s interest in a healthy menhaden stock, and instead bent over backward to accommodate the demands of both the Commonwealth of Virginia, which had previously been granted about 85% of the overall menhaden harvest, and Omega Protein Corporation, which harvests an overwhelming majority of the Virginia allocation.

During the many post-mortems that took place after the Management Board met and made its decisions, some folks blamed the outcome on ASMFC’s legally unfettered approach to fisheries management, and argued that the outcome would have been quite different had menhaden been managed under Magnuson-Stevens.

It’s an interesting argument, and one worth a bit of thought.

Although Magnuson-Stevens is a long and complicated law, its strength and effectiveness as a conservation tool can be boiled down to a few key provisions.

One is the concept of “optimum” yield, which for purposes of this discussion can be defined as

“…the amount of fish which will provide the greatest overall benefit to the nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems [and] is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor…”

Such key provisions also include National Standards One and Two, which require that

“Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry,”

and

“Conservation and management measures shall be based on the best scientific information available.”

Finally, to assure that healthy stocks are maintained at sustainable levels and that depleted stocks are returned to health, Magnuson-Stevens requires that each regional fishery management council

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process…”

and that

“for a fishery that is overfished, any fishery management plan, amendment, or proposed regulations…shall specify a time period for rebuilding the fishery that shall be as short as possible…and not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise…  [internal numbering omitted]”

ASMFC isn’t legally bound by any of those guidelines, so the question to be asked is, had menhaden been federally managed rather than managed by the states through ASMFC, would the outcome have been any different?

The most recent benchmark menhaden stock assessment, accepted for management use in 2015, found that

“Based on the current adopted benchmarks, the Atlantic menhaden stock status is not overfished and overfishing is not occurring.  In addition, the stock is currently below the current fishing mortality target and above the current [fecundity] target [an estimate of the eggs produced by the stock, used in place of a biomass reference point].  The fishing mortality rate is currently at F_65% which is the lowest [fishing mortality rate] in the time series.”

That being the case, even if the menhaden stock was federally managed, or if ASMFC was bound by the language of Magnuson-Stevens, neither the overfishing prohibition in National Standard One nor the 10-year rebuilding requirement would have prevented managers from making the same decisions that were made in November.

However, that still leaves open the question of whether the annual catch limit adopted by the Management Board would constitute “optimum” yield as defined in federal fisheries law.  Arguments can easily be made that it would not.  But those arguments would not reflect a consensus on what the optimum yield ought to be; factions supporting either a higher or a lower annual catch limit would each be able to cite language and data that justifies their positions.

On December 20, 2017, Virginia did, in fact, appeal the Management Board’s decision, arguing in part that the annual catch limit was set too low.  Virginia noted that

“the [Management] Board was presented with information indicating that raising the [total allowable catch] to 220,000 metric tons would result in absolutely no risk of the fishing mortality target being exceeded and raising the [total allowable catch] even higher would result in only a small risk of exceeding the target…The Board raised the [total allowable catch]  by 8%, setting it at 216,000  metric tons…

“In sum, the Board’s decisions on the [total allowable catch and other, related matters]…are excessively restrictive and unnecessary for the conservation of the menhaden fishery, should not be allowed to persist.  Virginia believes that the Interstate Fisheries Management Board should instead order that the total allowable catch be set at 220,000 metric tons…”

A letter from ASMFC’s Chairman, James Gilmore of New York, made it clear that ASMFC will not accommodate that request, although it is willing to hear an appeal on the related, reduced cap on menhaden harvest in Chesapeake Bay.  Would the catch limit have been any higher if menhaden were federally managed?

Maybe.

The question is whether a higher catch limit would provide “the greatest overall benefit to the nation,” and that’s a debatable question.  

Certainly, a larger harvest would, at least in the short term, provide a greater economic benefit to menhaden fishermen and the menhaden industry, so in that respect, a 220,000 metric ton annual catch limit would provide a greater economic benefit than one of 216,000 metric tons.

However, setting optimum yield requires that factors other than just economic gains be considered.  

In determining “the greatest overall benefit to the nation,” managers are directed to give particular consideration to “food production and recreational opportunities.”  Neither such factor is directly relevant here, although the argument could be made that abundant menhaden and other forage fish sustain and concentrate important food and recreational fish species, and in that way enhances both food production and recreation.

But ecological factors also come into play.  In determining optimum yield, managers are directed to “[take] into account the protection of marine ecosystems” and are authorized to set optimum yield at some level below maximum sustainable yield if justified by any “ecological factor.”

The conservation community and the vast majority of those who submitted public comments made just those points:  That interim ecological reference points were needed, and no harvest increase should have been considered, because of menhaden’s importance to the marine ecosystem as a forage fish.

Based on those arguments, had menhaden been federally managed, there is good reason to believe that interim ecological reference points would have been adopted, and the annual catch limit would not have been increased—provided that the requirements of National Standard Two were met:  Such interim reference points, and such lower catch limit, would have to be justified by the best available science.

And that’s exactly where things fell apart at the Management Board.

While few fisheries managers seriously doubt the important ecological role played by menhaden, and the effort to calculate menhaden-specific environmental reference points received wide support, the interim reference points preferred by most of the public, including me, turned out to be badly flawed, in a way that we all originally missed.

The preferred interim points, designated “Option E” in a draft document released by ASMFC, would have set a target menhaden biomass at 75% of the biomass of an unfished stock, and set a threshold biomass at 40% of a virgin population.  Remedial management action would only be required if biomass fell below the threshold level.

The problem with those reference points is that biomass includes all individuals in the population, immature fish as well as spawning-age adults.  And in the case of relatively short-lived forage fish such as menhaden, which are eaten by just about every larger predator that swims in or flies above the coastal sea, a lot of the biomass is made up of individuals that are too young to reproduce, while most of the fishing effort targets the sexually mature fish.  As a result, as explained at the November meeting,

“if you were to ramp up fishing mortality to the level that would allow you to achieve that threshold level, the vast majority of the biomass exists in [zero year old fish] and [one year old fish]  and then as you enter the [two year old fish] the population really starts to decay for fishing and natural mortality and all of those reasons.

“That is why the foible of that particular part of the [environmental reference points] exists, and that is you can really whack those older ages and drive them down to near zero; but you still have enough biomass in the zeros and ones and twos to meet that metric.  But if you were to then compare it to your fecundity metrics that you had been using that is where you would see the big difference.”

Thus, had menhaden been federally managed, it’s possible—but by no means certain or perhaps even probable—that the annual catch limit would not have been increased. 

On the other hand, the preferred interim ecological reference points would still have been doomed.  National Standard One prohibits overfishing, and overfishing occurs when

“[the] level of fishing mortality…jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.”

And since, as explained at the November meeting, the level of fishing mortality proposed in the favored interim reference point would have sharply reduced the fecundity of the stock, to a point where the spawning stock biomass would be “driven down to near zero,” such interim reference points would not meet the minimum standard established by Magnuson-Stevens.

Thus, the fate of such interim reference points would have been no different had menhaden been federally managed.

However, as this discussion demonstrates, what Magnuson-Stevens would have brought to the table is an orderly set of standards that could have been used to evaluate the various management options, a sort of structured analysis that is often absent at ASMFC.

While, with respect to menhaden, the result would probably have been the same regardless of the management body, that is often not the case, and it is difficult to argue that the ASMFC process would not be improved and made more effective if the Atlantic States Marine Fisheries Commission was bound by the same sort of objective legal standards that bind federal managers.