“Those
who cannot remember the past are condemned to repeat it.” George
Santayana’s words have been repeated so often that they’ve
become a cliché.
Yet, repeated or not,
they’re undoubtedly true. But when it comes to fisheries matters, merely
remembering the past isn’t enough; in order to prevent making the same mistakes
over and over again, fisheries managers must not only remember the past, but
also learn from it.
Today,
we can look to the federal fisheries management system with pride, and rightly
call the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens),
which governs all fishing in federal waters, as the most effective, and most
comprehensive, fishery management law in the world. Yet things were not always
that way.
When
Magnuson-Stevens’ forerunner, the Fishery Conservation and Management Act of 1976 (1976
Act), was signed into law, Congress’ primary intent was to force most foreign
vessels to fish 200 miles or more from the United States’ shores, so that
domestic fish stocks were not threatened by foreign fleets. Protecting such
stocks from the United States’ fishermen was, at best, a secondary
consideration.
The 1976 Act
established the regional fishery management council system, creating eight such
councils that were, and still are, peopled largely by representatives of the
fishing industry. The councils were charged with conserving and managing the
nation’s living marine resources, but during the two decades that followed the
passage of the 1976 Act, they spent most of the time protecting the fishermen’s
interests, and not those of the fish.
The 1976 Act required
that stocks be managed for “optimum yield,” which it defined, in part, as “the
maximum sustainable yield from such fishery, as modified by any relevant
economic, social, or ecological factor.” The “as modified” language in that
definition sounded a death knell for the health of many fish stocks, as
councils routinely established optimum yields that began with maximum
sustainable yield (MSY)—the most fish that could be removed from the stock
without causing long-term harm—and then “modified” that figure upwards due to
the most basic economic factor of all: Fishermen wanted to maximize profits in
the short term.
A
1995 article, “Twilight of the Cod,” which appeared in Discover magazine, described how that worked out
in New England, which once hosted some of the most productive fisheries in the
world.
“During the 1980s the
New England [Fishery Management] council proved itself unwilling to control
fishing. Indeed, one of its early actions, in 1982, was to eliminate catch
quotas. Its goal, it said, was a simpler system that allowed the fishery to
operate in response to its own internal forces. As the decade progressed, the
fishery did just that—and as [National Marine Fisheries Service] scientists
warned of declining stocks of cod, haddock, and yellowtail flounder, the
council dithered.”
As
a result, stocks of most New England groundfish quickly declined. Some
collapsed. Many have yet to recover.
It
was clear that the fishermen and fishing industry representatives on the
regional fishery management councils were unwilling to regulate themselves and,
given the choice, would always opt for maximizing their income in the short
term, rather than assuring the long-term sustainability of the nation’s fish
stocks. In response, Congress amended the 1976 Act by passing the Sustainable Fisheries Act of 1996 (SFA). The
result created a Magnuson-Stevens that was very similar to the law that exists
today.
The
old definition of “optimum yield” was changed under the SFA, to read “the
maximum sustainable yield from such fishery, as reduced by any relevant economic, social, or
ecological factor. [emphasis added]” Optimum yield could no longer be set above
MSY; the prospect of greater economic gain could no longer be used to justify
overfishing any fish stock.
Under the SFA,
overfishing wasn’t tolerated at all. And for the first time, regional fishery
management councils were required to rebuild overfished stocks within a
ten-year period if it was biologically possible to do so, unless such stock was
subject to an international fisheries agreement that established a different
rebuilding timeline. Fishery management measures had to be based on the best
scientific information available.
If
the National Marine Fisheries Service (NMFS) failed to uphold the standards
that the SFA established for federal fisheries managers, its decisions could be
challenged in federal court. That’s exactly what happened after NMFS ratified a
Mid-Atlantic Fishery Management Council amendment to the summer flounder
management plan that was unlikely to prevent overfishing. The Natural Resources
Defense Council sought judicial review of the amendment and, in the landmark
decision Natural Resources Defense
Council v. Daley, a federal appellate court established the
principal that any federal fishery management action must have at least a 50
percent probability of achieving its goals. Any management action that fell
short of that standard was deemed to be legally flawed.
New
management actions that met the court’s standard were put into place, and fish
stocks began to increase, but overfishing still plagued many others. In
response, Magnuson-Stevens was amended again in 2006. The new
amendment required regional fishery management councils to establish annual
catch limits for all managed stocks, required such councils to hold fishermen
accountable when they exceeded such limits, and prohibited the councils from
setting catch limits higher than the “allowable biological catch” for each
stock established by the scientists on the councils’ Scientific and Statistical
Committees.
As
a result of the SFA and the 2006 amendments to Magnuson-Stevens, federal
fisheries managers have had substantial success in rebuilding fish
stocks. 46 once-overfished stocks have been fully rebuilt,
while many others are no longer overfished, and well on their way to recovery.
Only 28 out of 321 stocks—just 9 percent—are experiencing
overfishing.
Federal fishery
managers can be proud of such success. Unfortunately, the inshore fisheries of
the Atlantic Coast have yet to enjoy the same sort of effective, science-based
management.
Many
of those fisheries are managed by the Atlantic States Marine Fisheries Commission (ASMFC),
an organization established by interstate compact in 1942, for the purpose of
cooperatively managing Atlantic Coast fisheries.
For
many years, the ASMFC was merely an advisory body, which had no real authority
to manage fish stocks. That changed after the coastal migratory striped bass
stock crashed in the late 1970s and showed no sign of rebuilding. It became
clear that the states, acting on their own, would not set aside their parochial
squabbles and adopt an effective rebuilding plan, so Congress passed the Atlantic Striped Bass Conservation Act (Striped
Bass Act) in 1984, giving the ASMFC the authority to impose its striped bass
management plan on all member states.
The
striped bass recovered as a result, and Congress passed the Atlantic
Coastal Fisheries Cooperative Management Act (Coastal Fisheries
Act) in 1993, which gave the ASMFC management authority over all species under
its jurisdiction. It seemed like a promising move.
At
the ASMFC, each species is managed by a separate species management board. Like the regional
fishery management councils, the various species management boards are
dominated by fishermen or representatives of fishing-related industries, who
have an economic interest in the fisheries they manage. But unlike the regional
fishery management councils—or, perhaps more to the point, like the regional
fishery management councils prior to passage of the SFA—there are no legal
limits on the exercise of the ASMFC’s discretion.
Thus, the ASMFC’s
management boards are free to ignore the best scientific information available,
and to allow short-term economic considerations to shape management actions.
They are not required to end overfishing, not required to rebuild overfished
stocks, not required to set annual harvest limits, and not required to hold
fishermen responsible when they overfish. They are not even required to enforce
the provisions of their own fishery management plans.
Even
if a management action is completely arbitrary and capricious, and a clear
abuse of management board discretion, stakeholders have no recourse to the
courts, as a 2010 court decision found that the ASMFC’s
management actions are not subject to review under the federal Administrative Procedure Act.
Given
how closely today’s ASMFC management boards resemble the regional fishery
management councils of twenty-five years ago, it should hardly be surprising
that they yield similar results: Fish populations that are, for the most part,
depleted or in decline. Out of the 22 stocks managed solely by the ASMFC, 10 are
overfished/depleted, only 4 are not, and the status of the other stocks is
unknown.
Stocks that are
jointly managed by the ASMFC and NMFS are faring much better, with only 3 out
of 9 overfished. That success is hardly surprising, as the management plans for
such stocks are governed by Magnuson-Stevens, which sharply curtails the
discretion of the ASMFC’s management boards.
Whether a person
measures from 1942, when the ASMFC was created, from 1984, when the Striped
Bass Act was passed, or from 1993, when the Coastal Fisheries Act was became
law, one sobering fact remains true: the ASMFC has never in its history rebuilt
an overfished stock and then maintained that stock at sustainable levels.
The
ASMFC came close to doing so with striped bass, a stock that it
successfully rebuilt after the stock collapsed in the late
1970s and early 1980s. But when a period of below-average spawning success
caused that stock to begin to decline over a decade ago, the ASMFC failed to
respond in time to prevent the striped bass stock from experiencing overfishing, and becoming overfished once
again. We can only hope that, this time, the rebuilding effort will again be
successful.
But there is no
guarantee that will occur.
The only thing that
almost certainly is guaranteed is that, so long as the ASMFC’s species
management boards are able to craft management measures that elevate the wants
of the fishermen above the needs of the fish, the stocks that they manage are
unlikely to thrive.
It is time to learn
from the past, when a similar situation plagued the regional fishery management
councils. That past teaches that the fishermen who sit on a management body
will consistently favor policies that benefit themselves in the short term,
regardless of how such measures affect the long-term health of fish stocks. The
past teaches that the only way to ensure the sustainability of fish populations
is to limit such fishermen’s discretion, by imposing legal requirements that
force them to follow the science, end overfishing and promptly rebuild
overfished stocks.
If the ASMFC’s
management boards fail to comply with such legal requirements, the federal
courts must have jurisdiction to review ASMFC management actions, and overturn
those which fail to protect the long-term health of fish stocks.
Thus, it is time to
consider legislation which amends either Magnuson-Stevens or, more likely, the
Coastal Fisheries Act, legislation that might be deemed the “Sustainable
Atlantic States Fisheries Act,” which will compel those who sit on ASMFC’s management
boards to accept their responsibility to manage fish for the good of the
public, instead of themselves.
If the past teaches
us anything about fisheries management, it teaches us that.
-----
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/
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