Striped bass and
bluefish just go together.
They’re both premier
inshore gamefish of the New England and mid-Atlantic coasts. They frequently
prey on the same schools of bait, with the bluefish slashing through the
harried forage, while the bass follow beneath, feeding on the dead and the
wounded.
And they’re both
overfished.
But that’s where the
similarities end, because the primary responsibility for managing striped bass
and bluefish belong to two different fishery management bodies, that operate
under different laws, take different approaches to fishery management, and have
very different records of success.
Striped bass are
managed by the states, through the Atlantic States Marine Fisheries
Commission’s (ASMFC) Atlantic Striped Bass Management Board (Bass Board). Every
coastal state between Maine and North Carolina, including Pennsylvania and the
District of Columbia, along with the Potomac River Fisheries Commission,
National Marine Fisheries Service (NMFS), and United States Fish and Wildlife
Service, have one vote on the Bass Board. Each of the states has three representatives
on that board, which must include a state fisheries manager, who serves as the
administrative appointee, a legislative appointee, who often appears by proxy,
and a governor’s appointee. Although there are some exceptions, the legislative
appointee’s proxy and governor’s appointee are typically not professional
fisheries managers, but instead fishermen or people connected in some way to
the fishing industry.
When any matter comes
before the Bass Board for a vote, the members of each state delegation first
caucus, with each member taking a position on the issue in question. The
position taken by a majority of members in each state’s caucus decides how that
state will vote on the issue (in the event that no majority position emerges,
the state will cast a “null vote” that has no effect on the final decision).
The ASMFC’s Interstate Fisheries Management Program Charter (Charter)
states that fishery management plans “must include conservation and management
measures that ensure the long-term biological health and productivity of
fishery resources under management,” that such plans “shall be designed to
prevent overfishing,” and that in the case of overfished stocks, “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.” It also states that “Conservation programs and management measures
shall be based on the best scientific information available.”
However, there is no statute that legally obligates the ASMFC to
adhere to the mandates set forth in the Charter, and in 2010, a federal appellate
court found that ASMFC’s fishery management actions were not
subject to judicial review. As a result, the ASMFC’s various species management
boards have very broad discretion to act as they choose, even if such actions
are completely arbitrary, contrary to the Charter, or ignore the clear
requirements of a fishery management plan.
Thus, in 2011, the Bass Board took no
management action after being warned in a stock assessment
update that striped bass would become overfished by 2017. In 2014, it failed to comply
with an explicit provision of the management plan that required the Bass Board to
initiate a 10-year rebuilding program to restore the female
spawning stock biomass, which had declined well below the target level in the
face of rising fishing mortality.
The Bass Board received formal notification that the striped
bass stock was both overfished and experiencing overfishing when the final version of a
benchmark stock assessment was presented at its April 2019
meeting, although it became aware of those problems when the initial
version of the assessment became public six months earlier. The assessment’s
findings triggered additional provisions of the management plan that required
the Bass Board to end overfishing within one year, and rebuild the spawning
stock biomass in no more than ten years.
In October 2019, the Bass Board adopted management measures intended to
end overfishing by reducing fishing mortality by 18 percent,
but it has yet to take any action to rebuild the stock within the next 10
years. Even the measures adopted at the October meeting, a one-fish bag and 28
to 35-inch slot limit on the coast, and a one-fish bag and 18-inch minimum size
in Chesapeake Bay, will probably not be implemented by many states; as a result
the planned 18 percent fishing mortality reduction will probably not be achieved.
That’s because the ASMFC embraces the concept of “conservation
equivalency,” which allows states to adopt regulations other
than those proposed by the Bass Board (or other species-specific management
board), so long as those regulations have the same conservation impact on the
stock as those preferred by the Bass Board. It makes sense in theory, but runs
into problems in practice, as conservation equivalency can result in
neighboring states adopting regulations which work at cross-purposes. And
because the Bass Board-approved rules will have a different impact on each
state, depending on the characteristics of its particular fishery,
conservation-equivalent rules can frustrate the goals of the management plan.
Current striped bass
management efforts provide examples of both problems.
The Bass Board decided to adopt a slot limit rather than a fixed
minimum size. The virtue of such slot is that it protects the older, larger
females that produce more and more viable
eggs than do smaller fish; the virtue of the rejected 35-inch
minimum size is that it would protect females that were just recruiting into
the spawning stock for a couple of years, and allow them to spawn for a couple
of years before recruiting into the coastal fishery. But conservation
equivalency allows some states to adopt slots, protecting the big females while
catching the smaller ones just entering the spawning population, while allowing
other states to adopt regulations that result in big females being killed while
protecting the younger fish. In such situation, both the smaller, younger
members of the spawning stock and the larger, older fish would be vulnerable to
harvest at some point during their migration, and the effectiveness of the
states’ regulations would be compromised.
In addition, the Bass Board decided that conservation-equivalent
regulations only have to match the 18 percent coastwide mortality reduction,
and not the actual reduction that the slot limit would have achieved in a
particular state. In New Jersey, where anglers land more striped bass than
they do in any other coastal state, the Bass Board’s preferred slot probably
would have reduced fishing mortality by at least 40 percent. But, because New
Jersey is only required to reduce striped bass mortality by 18 percent, its
regulations can be far less restrictive than the slot limit would have been. As
a result, the likelihood of achieving an 18 percent coastwide reduction is
significantly reduced.
We won’t know what
each state’s conservation equivalency proposals will look like until the Bass
Board’s February 2020 meeting and, because some states are likely to propose
and obtain approval for a number of alternate sets of regulations, we won’t
know what each state’s regulations will actually look like until some time
after that.
And we won’t know what sort of action the Bass Board will take
to rebuild the spawning stock biomass for more than two years after that, as
any rebuilding measures will probably be included in a new amendment to the
management plan, which the Bass Board will just begin working on in May
2020. There is even a substantial chance that, instead of adopting
measures to rebuild the biomass to the target level within 10 years, as the
management plan requires, the Bass Board will “fix” the rebuilding problem by
reducing the biomass target and overfishing threshold, instead of increasing
the number of striped bass in the ocean. Such reduction has already been suggested by
Bass Board members, who argue that the existing biomass target is
unrealistically high.
Thus, when the entire
process is over, there is no guarantee that measures adequate to reduce fishing
mortality to the target level, or rebuild the biomass to its target, will be
adopted by the ASMFC.
Bluefish, on the other hand, are primarily managed by the NMFS,
pursuant to advice received by the Mid-Atlantic Fishery Management Council
(Council). Both management bodies have a legal obligation to comply with the
provisions of in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens). The ASMFC
manages bluefish in state waters, but generally follows the Council’s lead.
In late August, a newly-released operational stock assessment revealed
that the bluefish stock was overfished, and that recreational landings were
higher than previously believed.
In October, the Council, along with the ASMFC’s Bluefish
Management Board (Bluefish Board) set a 2020 catch limit that
would reduce landings for both the commercial and recreational sectors and
assure that overfishing did not occur.
In late November, NMFS provided the Council with formal notification that the
stock was overfished, so at the Council’s December meeting,
it and the Bluefish Board authorized scoping hearings for a rebuilding
amendment that must be completed in time for the 2022 season. The amendment
must contain measures likely to rebuild the bluefish spawning stock biomass to
the target level within 10 years.
At the same meeting,
the Council and Bluefish Board cut the recreational bag limit from 15 bluefish
to three for anglers fishing from shore and from private boats, and to five for
those fishing from for-hire vessels. Such bag limits will apply in all federal
waters. States may propose alternative, conservation-equivalent rules, but such
rules would not apply in federal waters, nor would they apply to for-hire
vessels with federal bluefish permits.
Thus, less than four
months after learning that bluefish were overfished, the Council and Bluefish
Board adopted commercial and recreational regulations intended to constrain
recreational landings to the target level, and began work on a 10-year
rebuilding plan. Thanks to the clear requirements of Magnuson-Stevens, the
Council and Bluefish Board were able to quickly address the problems besetting
the bluefish stock.
On the other hand,
more than a year after learning the results of the benchmark striped bass stock
assessment, and more than seven months after such assessment was officially
released, the Bass Board has taken no action to initiate the 10-year rebuilding
process required by its own striped bass management plan. The Bass Board has
adopted a plan to return fishing mortality to the target level, but because of
loopholes attributable to conservation equivalency, that plan will probably
fall short of its goal.
The contrast between
the Council’s prompt and decisive response to the operational assessment’s
finding that the bluefish stock had become overfished, and the ASMFC’s
lumbering and uncertain response to the benchmark assessment’s finding that the
striped bass stock is both overfished and experiencing overfishing, is stark.
It illustrates why the NMFS’ record of ending overfishing and
rebuilding overfished stocks is so much better than the record of the
ASMFC, which has never in its history succeeded in rebuilding even a
single fish stock and subsequently maintaining that stock at sustainable levels.
It also illustrates
why a law such as Magnuson-Stevens, that compels fishery managers to adopt
effective conservation measures, is so critical to the success of the fishery
management process.
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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/
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