ASMFC: A MATTER OF PRIORITIES

No man can serve two masters: for either he
will hate the one, and love the other, or else
he will hold to the one, and despise the other.
Ye cannot serve God and Mammon.
                                              Matthew 6:24

The Atlantic States Marine Fisheries Commission (ASMFC) has been maddeningly ineffective when it comes to rebuilding fish stocks and maintaining such stocks at sustainable levels.

While federal fishery managers, guided by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), have already rebuilt at least 45 once-overfished stocks, ASMFC has only rebuilt a single stock, Atlantic striped bass, since it was created in 1942. A recent stock assessment has revealed that even striped bass are once again overfished and subject to continued overfishing.

ASMFC manages 27 different species (or, in some cases such as coastal sharks, species complexes) of fish and crustaceans, which can be further broken down into 33 separate fish stocks. Nine of those species, and ten of the stocks, are also federally-managed, and so benefit from the conservation and management measures required by Magnuson-Stevens. Of the other 23 stocks, only five, or 22%, are completely healthy, neither overfished nor subject to overfishing. On the other hand, at least eleven of those stocks, nearly half of all stocks managed solely by ASMFC, are currently overfished.

It’s hard not to wonder why federal fishery managers have been so successful in rebuilding and maintaining fish stocks, while ASMFC has had such dismal results. ASMFC has a dedicated staff of fishery professionals, both at its administrative and at its staff levels. The scientific advice that such staff provides is equal to that provided to the federal fishery management councils, and every ASMFC stock assessment goes through the same rigorous peer review as do the assessments of federally-managed species, a process overseen by the Northeast and/or South Atlantic fishery science centers.

In the end, it all comes down to priorities.

Federal fishery managers’ priorities are clear. Magnuson-Stevens includes ten “national standards for fishery management and conservation.” The first of those states 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.” National Standard 1, when read in conjunction with other provisions of Magnuson-Stevens, makes it clear that conserving fish stocks shall be the first priority of federal fisheries managers.

If there was any doubts about that, or any thoughts about buffering such conservation concerns to address economic considerations, they were dispelled by the federal appellate court’s decision in Natural Resources Defense Council v. Daley. It stated that “under [Magnuson-Stevens], the [National Marine Fisheries] Service must give priority to conservation measures. It is only when two different plans achieve similar conservation measures that the Service takes into consideration adverse economic consequences. That is confirmed by both the statute’s plain language and the regulations issued pursuant to the statute.”

Thus, National Standard 8 can require that any conservation and management measures adopted “take into account the importance of fishery resources to fishing communities,” and “minimize…adverse economic impacts on such communities,” but only to the extent that can be done “consistent with the conservation requirements” of Magnuson-Stevens.

When economic and conservation considerations conflict, conservation must always come first.

That’s just not how it works at ASMFC, where the Interstate Fisheries Management Program Charter (ASMFC Charter) creates a web of contradictory management standards, that make it practically impossible to effectively conserve and manage fish stocks.

That charter begins by stating, “It is the policy of the Commission that its [Interstate Fisheries Management Program] promote the conservation of Atlantic coastal fishery resources, be based on the best scientific information available, and provide adequate opportunity for public participation.” It later establishes standards for all of the ASMFC’s fishery management plans (FMPs), and in doing so provides that “Above all, an FMP must include conservation and management measures that ensure the long-term biological health and productivity of fishery resources under management. [emphasis added]”

The ASMFC’s FMP standards even contain a very Magnuson-Stevens-like requirement that “Conservation programs and management measures shall be designed to prevent overfishing and maintain over time, abundant, self-sustaining stocks of coastal fishery resources. In cases where stocks have become depleted as a result of overfishing and/or other causes, such programs shall be designed to rebuild, restore and subsequently maintain such stocks so as to assure their sustained availability in fishable abundance on a long-term basis.”

Based on such language, it would appear that the ASMFC, like federal fishery managers, lends conservation their highest priority. But that doesn’t turn out to be true.

Despite the standard that clearly states that “management measures shall be designed to prevent overfishing,” the ASMFC adopted Amendment 1 to the Interstate Fishery Management Plan for Tautog in 2017, which has only a 50-50 chance of ending overfishing on the Long Island Sound population by 2029, and does nothing to prevent overfishing before then. And despite that standard’s clear requirement to “maintain…abundant, self-sustaining stocks” of coastal fish, the ASMFC’s Atlantic Striped Bass Management Board failed to take action to prevent that stock from becoming overfished, even though scientists had given clear warning that the spawning stock biomass was in decline.

That’s probably because the ASMFC Charter does not clearly set out just what an FMP must do.

The same paragraph that requires an FMP to “include conservation and management measures that ensure the long-term biological health” of fish stocks also states that “Social and economic impacts and benefits must be taken into account” and, in what may be the ASMFC Charter’s most confounding statement, declares that “an effective fishery management program must be carefully designed in order to fully reflect the varying values and other considerations that are important to the various interest groups involved in coastal fisheries.”

Thus, in a single FMP, the ASMFC is expected to prevent overfishing, rebuild overfished stocks, and account for social and economic impacts, while at the same time fully reflecting the values of interest groups ranging from the conservation community to industrial fishing fleets and everyone else in-between. Resolving such conflicting considerations is an impossible task, which is made even more difficult by the fact that the courts, which act as a final arbiter of federal fishery conflicts, have no authority to review ASMFC FMPs pursuant to the federal Administrative Procedure Act.

The ASMFC has perpetuated that no-win situation in “Goal 1” of its new Five-Year Strategic Plan (Strategic Plan), which states that “Commission members will advocate decisions to achieve the long-term benefits of conservation, while balancing the socio-economic interests and needs of coastal communities.” By seeking an illusory “balance” between conservation and socio-economic concerns, rather than prioritizing the needs of fishery resources, the Strategic Plan will help ensure that ASMFC will continue to produce weak, ineffective FMPs that fail to rebuild overfished stocks, and place even the few currently healthy stocks at risk of following the striped bass into decline.

A recent study has demonstrated that such FMPs, which take an incremental approach to harvest reductions in an attempt to minimize socio-economic impacts, create a culture of overfishing that helps assure the FMP’s failure, while FMPs that decisively act to end overfishing and rebuild overfished stocks tend to spawn cultures of conservation that lead to healthy, sustainable fisheries.

Viewed in that light, the ASMFC’s management failures are not only understandable, but predictable.

The federal fishery management system fell victim to the same sort of conflicts between conservation and socio-economic concerns, and engaged in the same sort of ineffective management, after Magnuson-Stevens first became law. That didn’t change until Congress passed the Sustainable Fisheries Act of 1996 (SFA), which compelled federal fisheries managers to make conservation their top priority.

That experience suggests that the only way to transform the ASMFC into an effective fishery management body is to pass what would amount to a new SFA, which would require the ASMFC to adhere to the same legal mandates to end overfishing and rebuild overfished stocks that now apply only to federal fishery managers.

By doing so, Congress would make the ASMFC’s mission clear, and allow it to focus its talent and energy on conserving and rebuilding Atlantic fish stock, and free it from the impossible task that it faces today, for the ASMFC cannot expect to effectively manage fish stocks so long as it tries to serve both the conservation needs of fish stocks and the socio-economic interests of various stakeholder groups.

The fish must come first, for it’s impossible to have a fishing industry, or any socio-economic benefits, without them.

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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/