WHAT WOULD A TRULY MODERN FISH ACT LOOK LIKE?

Since early in 2017, anglers have been bombarded with propaganda, produced by a very well-funded, very sophisticated public relations campaign, intended to gain their support for legislation that its proponents call the “Modern Fish Act.”

Depending upon just which bit of PR you happen to read, the “Modern Fish Act” rhetoric might be applied to H.R. 2023, S. 1520 (both of which are true “Modern Fish Act” bills, formally titled the “Modernizing Recreational Fisheries Management Act of 2017”), or even H.R. 200, which isn’t really a “Modern Fish Act” bill at all, but a much more comprehensive, and much more dangerous, piece of legislation actually titled the “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, that has been bouncing around in, and regularly rejected by, Congress for at least the last five or six years.

Whichever bill is being discussed at the time, the goal of the Modern Fish Act is to increase recreational landings, generally at the expense of the commercial fishing sector and always by weakening the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act, a bill that has slashed the number of overfished stocks, and the number subject to overfishing, over the past twenty years.

Despite the folks who call such bills “modern,” they represent a step backwards; depending on the particular bill involved, instead of truly modernizing the federal fishery management process, by weakening critical provisions of Magnuson-Stevens, they would actually move the process backwards, to where it was ten or even twenty years ago. 

As one writer observed, “There’s nothing modern about the Modern Fish Act.”

But it’s always easy to complain, or to critique someone else’s efforts.  As a conservation-minded angler and writer, I have an obligation to go beyond just knocking the badly flawed bills that are being called the “Modern Fish Act” today.

I need to ask the question, “What if someone actually had the foresight and courage to draft a truly Modern Fish Act, a bill that would make a real effort to address the issues that recreational fishermen, and the fish that they target, will face in the future, rather than a bill just designed to increase today’s kill?” 

What would a bill like that look like?

Well, here are some ideas…

The first thing that such a bill would do is assure the health and abundance of fish stocks, because—despite the protestations of the last surviving troglodytes on the coast, who keep focused on recreational kill (but never quite explain how you can kill what’s not there)—even most of the Modern Fish act supporters will admit that a quality angling experience, and the future of our angling-related businesses, depends on the average angler being able to reliably expect to be able to encounter reasonable numbers of fish when they venture out on the water, and be able to find an occasional larger fish, too.

The first step to achieving such abundance is preventing today’s healthy stocks from being overfished.  Current law already does that very well.

The next step is to promptly rebuild stocks that remain overfished, as well as those that have not yet been fully rebuilt.  Current law requires that to happen, and has a fairly good record of success, but it also has notable failures, such as Atlantic cod and various other New England groundfish stocks.  Thus, a real modern amendment to the law would adopt one of the few beneficial previsions in the Senate version of the Modern Fish Act, S. 1520.  Such provision requires that

“A [regional fishery management] Council shall not approve a fishery management plan, plan amendment, or proposed regulation…for any fishery that has previously been under such a plan that did not rebuild such fishery to the biomass necessary to achieve maximum sustainable yield as determined by the Council’s scientific and statistical committee unless the new plan, amendment, or proposed regulation has at least a 75 percent chance of rebuilding the fishery within the time proposed by the Council, as calculated by the Council’s scientific and statistical committee…”

Such a requirement would prevent risk-prone regional fishery management councils, such as New England, from adopting the riskiest management measures allowed by law—a mere 50-50 chance of success—time and time again, piling failure upon failure, and instead require more risk-averse measures if the first effort to rebuild a stock doesn’t succeed.

The second provision that would help secure and maintain abundance comes, surprisingly, from H.R. 200, and it would change the definition of “bycatch.”

Magnuson-Stevens’ National Standard Nine mandates that

“Conservation and management measures shall, to the extent practicable, (A) minimize bycatch, and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.”

That sounds fine on its face, but things get a little muddled when one reads the definition of “bycatch” and learns that it is

“fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards.  Such term does not include fish released alive under a recreational catch and release fishery management program.  [emphasis added]”

That definition leaves fish voluntarily released by anglers in a sort of legal limbo.  

They are not “harvested,” but presuming that they are of legal size and that the angler has not yet retained a limit of fish, neither are they “economic discards [or] regulatory discards.”  

And “released alive under a recreational fishery catch and release program” has been interpreted to mean fish for which release is part of the formal management plan (i.e., protected species of shark that are caught and tagged by NMFS Cooperative Shark Tagging Program), and not other releases.

In fact, there is no formal concept of “release” in Magnuson-Stevens, which is in turn reflected in the language of fishery management documents such as the pending Bluefish Allocation Amendment to the Bluefish Fishery Management Plan, which refers to the released fish as “discards” and proposes reallocating such “discarded” fish to the commercial sector for harvest, as the recreational sector typically fails to harvest its full quota.

H.R. 200 would strike the words “management program” and thus make it clear that voluntarily released fish were not bycatch, but rather a useful contribution to the success of the fishery management process.

After that, though, neither the two Modern Fish Act bills nor H.R. 200 have much of worth to contribute.

Yet there are still a number of improvements that need to be made to Magnuson-Stevens, if angling is to thrive in the future.

One of those is to recognize that fish have to eat, and that single-species management, which merely addresses the rate of harvest and its impact on biomass, doesn’t directly address that issue.

Magnuson-Stevens must be amended to recognize the special role that forage fish play in the ocean, and that management measures that may be appropriate for larger predator species—setting targets and thresholds for both biomass and fishing mortality, based on the concept of maximum sustainable yield—don’t work so well in the cases of species for which serve their highest and best use as prey.

Instead, it would be preferable to manage such species primarily for their ecosystem value, instead of sweeping tens of thousands of tons of them out of the sea with huge midwater trawls, in high-volume, low-value fisheries that might yield (in the case of Atlantic herring) perhaps 20 cents per pound.

And forage fish aren’t the only ecosystem consideration that needs to be made.  A truly modern Magnuson-Stevens Act would aggressively protect essential fish habitat, including important spawning, nursery and feeding areas, and migration routes, wherever they may be located.  That would include protecting such areas from the damage done by non-fishery-related activities, such as offshore energy exploration and development, agricultural runoff leading to “dead zones,” and inshore development and other activities that threaten salt marshes, mangrove shorelines, turtle grass flats and other spawning and nursery areas critical to healthy stocks of federally-managed species.

While many of those issues extend well beyond NMFS jurisdiction, a modern Fish Act could very well create a comprehensive National Ocean Policy, similar to the one in effect prior to July 19 of this year, along with an Ocean Policy Board composed of state and federal agency members empowered to cross jurisdictional lines in order to coordinate ocean uses and assure water quality and the health of fish stocks.  It would be a worthwhile improvement on the current Administration’s recently announced Ocean Policy, which seems intended to encourage short-term exploitation while risking serious long-term harm to the health of marine ecosystems.

At the same time, a truly “modern” fish act would consolidate management authority by recognizing that the Articles of Confederation were replaced by the United States Constitution more than 200 years ago, and that  Article I, Section 8, Clause 3 of the United States Constitution, states that

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

It would further recognize that such language has been interpreted by the United States Supreme Court to mean that Congress has the right to regulate commerce

“may be exercised in individual cases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.  Only that general practice need bear on interstate commerce in a substantial way.  [citations, internal quotation marks deleted]”

Since current supporters of H.R. 200, H.R. 2023 and S. 1520 argue that those bills would benefit companies throughout the country due to their impact on commerce, they would have a hard time arguing that managing fisheries, even in state waters, isn’t something that the federal government has the Constitutional authority to do.

Yet, today, Section 306(a) of Magnuson-Stevens provides that

“Except as provided in subsection (b), nothing in this Act shall be construed as extending or diminishing the jurisdiction or authorities of any State within its boundaries…”

which boundaries include that state’s territorial sea.  The exception in the referenced subsection (b) states

“If the Secretary finds…that the fishing in a fishery, which is covered by a fishery management plan implemented under this Act, is engaged in predominantly within the exclusive economic zone and beyond such zone; and any State has taken any action, or omitted to take any action, the results of which would substantially and adversely affect the carrying out of such fishery management plan; the Secretary shall promptly notify such State and appropriate Council of such finding and of such intention to regulate the applicable fishery within the boundaries of such State (other than its internal waters), pursuant to such fishery management plan and the regulations promulgated to implement such plan.  [internal numbering deleted]”

That sounds good on paper, but in the real world, such federal preemption is too politically fraught to actually be used.  

Even in the case of Gulf of Mexico red snapper, where overly-liberal state regulations forced federal regulators to impose a 3-day recreational fishing season in 2017, the Secretary of Commerce refused to intercede and preempt the state rules (in fact, when he did intercede, it was to take patently illegal action to allow recreational fishermen to exceed their annual catch limit).

Thus, if legislators were to take a truly modern view of fishery management, rather than try to perpetuate the same sort of obsolescent “states’ rights” mentality that precipitated the Civil War, they would amend the section to employ the Commerce Clause and give NMFS the right to effect its management measures throughout the U.S. range of any federally-managed species, and so preempt any efforts of the states to frustrate federal fishery management plans.

Under such arrangements, states could still be free to set their own seasons and other regulations, allocate the resource between sectors and between the states, etc., so long as their measures did not conflict with the federal management plan, and assured that federal rebuilding times and prohibitions against overfishing would be maintained.

That, then, would be my concept of a truly modern Fish Act—an act which ensured that an abundance of fish would remain available to anglers, an act that would maintain adequate supplies of forage species and maintain healthy ecosystems, and an act that would better assure that state politics couldn’t undermine science-based federal management plans.

That’s the sort of modern Fish Act that looks toward the future, and doesn’t try to slink back to the past.