COOPERATIVE FISHERY MANAGEMENT ONLY WORKS IF EVERYONE COOPERATES

Anyone who regularly reads this blog knows that I am a frequent critic of the Atlantic States Marine Fisheries Commission.

I have faulted the organization for its frequent failures to end overfishing, its chronic failure to rebuild overfished stocks, and for its tendency to elevate short-term socioeconomic considerations above the long-term health of fish populations.

So, given that record, it might surprise you to learn that I firmly believe that East Coast fish populations, as well as East Coast fishermen, are far better off having the ASMFC, even in its current flawed form, managing regional fisheries than they would be if the organization didn’t exist.  The sort of cooperative fishery management that ASMFC is empowered to provide probably represents the only long-term hope of maintaining fish populations that are not fully governed by the federal management system and the Magnuson-Stevens Fishery Conservation and Management Act.

I say that from the perspective of someone who has been fishing for a very long time, who fished through the last collapse of the striped bass stock, and who witnessed the states’ flailing and ineffective efforts to address that collapse before the passage of the Atlantic Striped Bass Conservation Act in 1984, the law that finally gave the ASMFC legal authority to compel states to adopt management measures that would actually rebuild the striped bass population.

Prior to that law’s passage, all was chaos.  The ASMFC had been around since 1942, but it served in a purely advisory capacity.  When the striped bass population fell into decline, the ASMFC went to work to study the problem, and in 1981 produced its very first striped bass management plan.  That plan was designated “Fisheries Management Report No. 1,” the first management plan, for any species, ever drafted by the Commission.

That first management plan was extremely comprehensive.  Its 200-plus pages addressed everything from striped bass biology to the various fisheries to the many problems that might have contributed to the stock collapse.  It also suggested management measures intended to halt the decline and hopefully rebuild the striped bass stock.  Such measures included

“1.  a minimum fish size of at least 14 inches [total length] to be established for all producing areas to reduce fishing mortality on smaller fish (age II and III) and increase the number of recruits that enter the coastal migratory stocks;

2.  a system of daily catch limits be implemented in the coastal areas for fish up to 24 inches [total length] to minimize exploitation of small (immature) migrant females;

existing maximum size limits and bag limits in producer areas be retained and a system of spawning area/regional closures be implemented to prevent excessive exploitation of spawning concentrations.”

The management plan justified such recommendations by noting

“On the basis of [an] analysis of Maryland catch, it is highly probable that a 14 inch [total length] minimum size limit in all producing areas will result in further increases in the yield by weight in both producing areas and coastal areas, and substantially increase the numbers of females surviving to maturity.

“Since the proposed increase in minimum size limits in producing areas would likely result in greater exploitation of immature fish by coastal fisheries, additional constraints in coastal areas are also necessary.  It is recommended, therefore, that a daily bag limit of not more than 4 fish per day less than 24 inches [total length] and greater than 14 inches [total length] for hook and line fishermen be implemented in coastal areas.”

By today’s standards, such recommendations seem almost laughingly modest, but in the context of their era, they appeared almost shockingly restrictive. 

At the time, there was a 12-inch minimum size in the Maryland section of Chesapeake Bay (there was also a 32-inch maximum size, although anglers were allowed to take one fish per day over that limit for most of the year) and a 14-inch minimum in Virginia (where anglers were allowed two fish per day over the state’s 40-inch maximum); on the coast, a 16-inch size limit (fork length) prevailed, but was not universal.  Bag limits were virtually unheard-of, although New Jersey did limit its anglers to ten bass per day.

The original striped bass management plan observed that

“those deciding among these management tools must consider much more than their potential effectiveness in a biological sense.  Equally important, perhaps more so in sum total, are the measures’ acceptability to recreational and commercial fishermen in all areas where the fish are found, their political palatability, enforceability and cost effectiveness.  Considering the very wide range of parochial interests associated with this species and the fact that much remains unknown about its population dynamics, choosing a set of management measures for the Atlantic coast stocks of striped bass that meets all these criteria is a formidable task.  Clearly, to meet even limited success in this venture will require a great deal of compromising among all interested parties…”

In other words, if there was to be any hope of rebuilding the striped bass population, everyone with an interest in the striped bass fishery was going to have to work cooperatively to achieve that goal.

Unfortunately, that sort of cooperation doesn’t come naturally to people, who are usually doing their best to one-up their neighbors in an effort to get more for themselves.  Thus, the advice provided in that first management plan was largely ignored as each state expressed concern with the state of the striped bass stock, but weren’t willing to be the first to impose management measures that would place a state’s fishermen at a competitive disadvantage compared to fishermen elsewhere on the coast.

It couldn’t really be called a “race to the bottom” because, as a practical matter, the states’ bass fisheries were already hitting rock bottom by 1981, but it could be characterized as a stalwart determination to remain a part of the least common denominator, and not take the lead in doing anything that might be in the best long-term interests of the bass, if it would cause short-term pain to local fishermen—although a handful of states, pushed largely by recreational striped bass fishermen, did slowly enact modest management reforms.

Changes big enough to rebuild the bass population didn’t happen until the Atlantic Striped Bass Conservation Act took the management decisions out of the hands of individual states, and forced the states to work together, through ASMFC, to create an effective and binding solution.  The Striped Bass Act accomplished that feat by giving ASMFC the power to find uncooperative states “out of compliance” with the terms of the striped bass management plan, a finding that would result in federal regulators shutting down the entire striped bass fishery in the noncompliant state.

Granted such new management authority, ASMFC successfully rebuilt the striped bass stock.  Compelled compliance was such an effective fishery management tool that, in 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act, which gave ASMFC similar legal authority to compel compliance with fishery management plans for all species subject to its jurisdiction.

It all worked pretty well for 25 years.  While ASMFC didn’t have much success rebuilding fisheries after bass were restored in 1995, it still did a pretty good job of keeping everyone moving in the same general direction.  States went out of compliance a few times, but on the first 19 occasions, the threat of a fishery shutdown pushed them back into line pretty quickly.

In 2017, all of that changed.

That year, the State of New Jersey decided that it wouldn’t comply with ASMFC’s management plan for summer flounder.  It claimed that a smaller minimum size could be coupled with a slightly shorter season (in September, when fishing effort is tapering off from the summer vacation period) and some other, less-measurable factors into a set of management measures and education efforts that would be “conservationally equivalent” to the management plan.

ASMFC just didn’t buy New Jersey’s arguments.  Its Summer Flounder, Scup and Black Sea Bass Technical Committee did not find conservation equivalency, and when New Jersey moved to have its management proposals approved, not a single non-New Jersey member of the Summer Flounder, Scup and Black Sea Bass Management Board believed the proposal to have enough merit to justify seconding the state’s motion.

It was pretty clear that the New Jersey proposal didn’t meet the standards created by ASMFC’s management plan, but New Jersey went ahead with it anyway.  It was a gamble on New Jersey’s part, but perhaps not a very big one.  A new presidential administration had recently moved into Washington, and the new Commerce Secretary, Wilbur Ross, had already made it clear that he favored high harvest levels over good fisheries conservation.

In addition, the then-New Jersey governor had ties to the new administration.  So instead of making a management decision based on science and good stewardship, New Jersey decided to spin the wheel and see whether it could gain a political win, which would see Secretary Ross overturn ASMFC’s noncompliance finding.

For New Jersey, if not for the flounder, things turned out pretty well.  As it hoped, the Secretary of Commerce took the political route.  His office never even bothered to consult the regional administrator of the Greater Atlantic Regional Fisheries Office about the merits of New Jersey’s position, even though the regional office would have the most knowledge about how New Jersey’s proposed regulations could impact the fishery. 

ASMFC’s noncompliance finding was overturned.  New Jersey could keep on killing smaller fish.

John Bullard, who was the regional administrator at the time, objected to such ill-advised action, noting

“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 is a cost to that.

“There’s a reason we have regional administrators, because their experience and knowledge is valuable in making decisions like this one.  This is an unfortunate precedent…

“This is a system that keeps all states accountable to each other.  We’re now going to have to figure out how to repair that system.”

The ASMFC, echoing such comments, stated that

“We are very much concerned about the short and long-term implications of the Secretary’s decision on interstate fisheries management.  Our focus moving forward will be to preserve the integrity of the Commission’s process, as established by the Atlantic Coastal Act, whereby, the states comply with the management measures we collectively agree upon.”

For when the Secretary of Commerce condoned New Jersey’s noncompliant actions, he opened the door on a past that at least the responsible East Coast fishery managers had thought they had forever left behind, the days when states managed coastal fish stocks without regard for their neighbors, and everyone tried to scoop up the biggest share, regardless of its impact on the long-term health of the stock.

Once a door like that opens, it is very, very difficult to close.

Already, we have seen the ASMFC’s Atlantic Menhaden Management Board decide not to find Virginia out of compliance for its failure to adhere to every provision of the menhaden management plan, knowing full well that the Secretary of Commerce would overturn that finding as well, and so further weaken the management authority of the ASMFC.

Now, here in New York, we’re hearing calls—from a member of Congress, no less—for New York to go out of compliance with ASMFC’s black sea bass management plan, because it forced to New York to adopt recreational regulations that are more stringent than those in New Jersey (but which are very much in line with the state’s New England neighbors).  And he’s getting some support from people who are usually very level-headed about fishery management issues.

Given the attitudes of the current Secretary of Commerce, New York could very possibly get away with it, too.

But fisheries management, and particularly East Coast inshore fisheries management, isn’t about seeing how much you might be able to get away with.  

It is about an interstate compact, backed by federal law, which has held together a fragile coalition of states, and allowed them to manage shared fish stocks in a rational and uniform manner.  If a few more states choose to put their own parochial interests ahead of the shared interest in healthy fish stocks, and go out of compliance with rules they see as unfair, that coalition could easily fall apart, and take us back dangerously close to the days when each state did what was best for them, and not for the overall health of our fisheries.

As the first striped bass management plan noted, “to meet even limited success in [managing a fishery] will require a great deal of compromising among all interested parties.”  States that threaten to go out of compliance every time a management decision doesn’t go their way aren’t acting in the spirit of compromise at all.

ASMFC, for all of its flaws, has used compromise and a cooperative fishery management approach to benefit our East Coast fisheries.  States repeatedly going out of compliance would threaten whatever progress has been made.

I will continue to argue that ASMFC’s management process needs an overhaul.

I believe that ASMFC’s overall management record has been, at best, a “limited success.”

Even so, I will forever maintain that “limited success” is better than no success at all, and insist that whatever course ASMFC eventually takes, cooperation—and full compliance—must always be a part of its future.