CONGRESS PASSES WEAK RED SNAPPER BILL (AND CALLS IT THE "MODERN FISH ACT")

The long fight over the so-called “Modern Fish Act” is over; on Wednesday, December 19, the House followed the Senate’s lead and, by unanimous consent, passed an effectively toothless piece of legislation that will have no meaningful impact on U.S. fisheries, and was a very, very different bill from what was first introduced in Congress more than a year and a half ago.

Thanks to the efforts of conservation-minded fishermen and the broader conservation community, a bill that would have substantially weakened the Magnuson-Stevens Fishery Conservation and Management Act, and threatened the health of U.S. fish stocks, was whittled down into something that might best be described as a “participation trophy” given to those who tried very hard, but ultimately failed, to significantly damage the federal fishery management process.

Of course, that’s not what the folks who have long supported the Modern Fish Act are saying.  A release issued by the Center for Sportfishing Policy, the group that coordinated efforts to pass the bill, gushes with praise for the bill’s passage.

It quotes Johnny Morris, founder of Bass Pro Shops, as saying

“The Modern Fish Act is the most significant update to America’s saltwater fisheries regulations in more than 40 years…”

The fact that it’s a change to the law, and won’t have any immediate impact on regulations, seems to have escaped him.

Jeff Angers, the president of the Center for Sportfishing Policy, called the bill’s passage

“a historic day for America’s 11 million saltwater anglers,”

although that’s not really saying too much, as the evening when Abraham Lincoln and John Wilkes Booth both met, for a critical moment, in Ford’s Theater was a “historic day,” too.  But the passage of the Modern Fish Act will have far less dire results for America’s fish stocks than the shot fromBooth’s derringer had for the nation.

In the end, the whole thing ended not with a bang, but with a whimper.

Saying that, let’s take a look at what really happened.

The original Modern Fish Act, H.R. 2023, was introduced in the House of Representatives on April 6, 2017.  It would have serious weakened some of Magnuson-Stevens’ most important provisions, limited the actions of regional fishery management councils, and compromised the integrity of federal fisheries data. 

Such bill would have relieved fishery managers of the need to adopt annual catch limits for many recreational fisheries, and thus made them far more vulnerable to overfishing.  The list of fisheries that would have been exempt from annual catch limits included those that had not been subject to a stock assessment within five years, leading to an untenable situation in which data-deficient stocks, which are the stocks most in need of precautionary management, would have lost their best safeguard against overfishing.  H.R. 2023 would also have abolished the annual catch limit requirement for all recreational fisheries where overfishing is not occurring, even if such fisheries were very badly overfished, and at extremely low levels of abundance.

In addition, H.R. 2023 would have allowed annual catch limits to be set for “stock complexes.”  While that might seem to make sense on the surface, particularly in the case of southern reef fish, where thirty or more species might be included in a single fishery management plan, it ignores the fact that some components of a stock complex will inevitably be healthier than others, and that not all are subject to the same fishing pressure. 

Along with eroding the annual catch limit requirement, H.R. 2023 would have also eroded regional fishery management councils’ ability to adopt innovative and effective fishery management measures.  It would have placed a moratorium on commercial catch share programs for any species that also supports a recreational fishery, despite the fact that imposing such programs have often proven to be the only reliable way to end commercial overharvest.  It would also have made it very difficult to issue exempted fishing permits, which allow managers to try out new ideas and approaches on a small scale, before adopting them for the entire fishery.  Ironically, many of the same people and organizations who supported H.R. 2023 later resorted to exempted fishing permits to address long-standing issues in the Gulf of Mexico red snapper fishery, and so illustrated a real flaw in the bill.

Finally, H.R. 2023’s language threatened to degrade the quality of the science used to conduct stock assessments and make other fisheries studies, by seeking to include information collected or otherwise provided by untrained fishermen, among others, into what should be data-driven scientific reports.  At the same time, the bill would have diverted the energies of fishery managers at the South Atlantic and Gulf of Mexico fishery management councils from their primary duty of managing and conserving fish stocks, and forced them to revisit the commercial and recreational allocations of all managed species every five years, whether or not conditions had changed and whether or not there was any data supporting the need for reallocation.

In the end, H.R. 2023 never made it out of committee as a stand-alone bill.  Instead, its provisions were incorporated into a much broader Magnuson-Stevens reauthorization bill, H.R. 200, formally titled the “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.”  H.R. 200 would have done even more harm to the conservation provisions of Magnuon-Stevens than H.R. 2023, causing some in the environmental community to label it the “Empty Oceans Act;” even so, Modern Fish Act proponents claimed H.R. 200 as their own, and proclaimed a victory when the House passed it in July 2018.

H.R. 200 had virtually no chance of being passed in the Senate, where the Modern Fish Act took the form of S. 1520.  While S. 1520 took a somewhat less radical approach to annual catch limits, it included far more language restricting the use of catch shares.  Over all, H.R. 2023 and S. 1520 were substantially similar in intent and effect.

As there was no broader Magnuson-Stevens reauthorization bill introduced in the Senate, S. 1520 was reported out of committee as a stand-alone bill.  However, thanks to the efforts of conservation-minded fishermen and the greater conservation community, the bill that emerged from committee after a February 2018 mark-up was very different from the bill that was originally introduced.

Much of the most objectionable language was gone.  The new version even included a conservation measure that would have required new fishery management plans, which were adopted after the original management plan failed to rebuild the stock, to have at least a 75% chance of achieving that goal, a substantial improvement over the current, 50%-chance-of-success requirement.  However, the marked-up bill still included the severe restrictions on the use of catch share programs, and still required repeated periodic reviews of allocations at the South Atlantic and Gulf of Mexico councils.  

Because of that, it was given little chance of gaining the 60 votes needed to assure passage in the Senate.

S. 1520’s original sponsor, Sen. Roger Wicker (R-Mississippi) was nonetheless determined to see the bill passed before the 115^th Congress ended.  Since the only way he could do that so late in the year was to see the bill passed by unanimous consent in both the Senate and the House, he stripped out every piece of language that any member of Congress, in either chamber, might object to.  The result was a milquetoast bill that was passed by the Senate on December 17, and by the House two days later.

So what was in the bill that is finally making it’s way to the President’s desk, the bill that has been called “the most significant update to America’s saltwater fisheries regulations in more than 40 years,” and made December 19, when it passed in the House, “a historical day for America’s 11 million saltwater anglers”?

First of all, and most important, it makes no changes to the core conservation provisions of Magnuson-Stevens.  Instead, not once but twice, in two different parts of the bill, S. 1520 reaffirms that such provisions, which prohibit overfishing, require annual catch limits, and hold fishermen accountable when overfishing occurs, retain their full force and effect.

That, in itself, is a major win for conservation advocates.

It does call for two studies.  One would take a look at how fish are allocated between the commercial and recreational sectors, and hopefully suggest criteria that could be used when making such allocations.  Of course, such criteria are already out there, as NMFS has already developed an allocation policy that includes guidelines on when and why reallocation should be considered, but the final version of the Modern Fish Act makes the new study specific to only the South Atlantic and Gulf of Mexico fishery management councils—in other words, to red snapper country—so the big recreational spokesmen now have something to take back to their members, who have long been trying to change red snapper allocations.

The other study would look at the impacts of catch shares on stakeholders in mixed-use fisheries.  That’s long been a hot-button item for recreational red snapper fishermen down in the Gulf of Mexico, who repeatedly complain that the catch share program that has prevented commercial overfishing of red snapper in the Gulf of Mexico ever since it was introduced in 2007 is somehow an infringement on their ability to access the fish (even though such anglers have chronically overfished the red snapper resource).  Thus, such study represents just another small bone that Congress tossed to red snapper anglers when they passed the bill.

Once we get away from the studies, the Modern Fish Act, as passed, does give federal fishery managers the right to use management measures such as fishing mortality rates and control rules to manage recreational fisheries, so long as no overfishing takes place.  Of course, federal fishery managers could already do that; the Mid-Atlantic Fishery Management Council has been working on using fishing mortality rates to manage the recreational black sea bass fishery for a while.  But keeping this piece in the final bill does give the impression, even if it’s a false one, that the Modern Fish Act did something substantial, and I the end, that’s what participation trophies are all about.

About the only thing that S. 1520 might have substantively accomplished is to encourage the use of data from nongovernmental sources—such as The Center for Sportfish Science and Conservation that some of the anglers at the heart of the red snapper fight initially funded down in the Gulf—in stock assessments, and to force the Department of Commerce to take a look at whether current recreational landings data is appropriate for in-season management of fisheries.  And again, the Gulf red snapper fishery is one of the few—maybe the only—federal recreational fishery that’s managed on an in-season basis.

So the impact of the new law is pretty clear.  It grants a few very minor boons to the recreational red snapper fishermen, and gives the rest of America’s 11 million saltwater anglers, well, nothing at all.

Perhaps the best indication of how ineffective the bill really is can be seen in the reaction of the environmental and commercial fishing communities, who actively opposed the Modern Fish Act as it was originally introduced, but give the bill that passed a big yawn—and even faint praise.

Thus, while S 1520’s supporters are now trying to convince everyone, including themselves, that they have won an important victory, by any objective standard, they suffered a significant loss.  For the S. 1520 that will now become law makes no substantive changes to Magnuson-Stevens.

That is a clear win for conservation-minded fishermen and for the conservation community as a whole.

Next year, there will be a new Congress and a new battle, as a full reauthorization of Magnuson-Stevens moves forward.  It will probably feature a difficult and sometimes bitter debate.  But with enough work, that fight, too, can turn out well.