EIGHTEEN MONTHS AFTER PASSAGE, "MODERN FISH ACT" UNDERWHELMS

A couple of years ago, and for three or four years before that, it was just about impossible to pick up an angling publication and not hear about the so-called “Modern Fish Act,” legislation more properly titled the “Modernizing Recreational Fishery Management Act of 2018.”

According to the bill’s proponents in the anglers’ rights, fishing tackle and boating industries, the Modern Fish Act would make major changes to the federal fishery management system.  In a somewhat breathless press release issued by the American Sportfishing Association shortly after the bill was signed into law, various representatives of those industries stated that the Modern Fish Act

“finally recognizes in federal law the differences between recreational and commercial fishing and adds more appropriate management tools for policymakers to use in managing federal recreational fisheries.”

The Act was called an

“important milestone for federal fisheries management and marine conservation,”

with one industry spokesman saying that

“The Modern Fish Act is a critical first-step solution towards establishing a framework for expanding access to recreational saltwater fishing, while ensuring conservation and sustainability remain top priorities in fisheries management.”

In a particularly frothy bit of hyperbole, the president of a large conservation organization, which has a solid track record on terrestrial and fresh water issues, but probably should have stayed away from the ocean until it was better informed, said that

“This bill becoming law is the most significant step forward in federal recreational saltwater fishing management in the forty-plus years of the Magnuson-Stevens Act,”

a statement that seemingly ignores passage of the Sustainable Fisheries Act of 1996, which was the law that, for the first time, legally obligated federal fisheries managers to end overfishing and rebuild overfished stocks, and led to the restoration of many recreationally-important fish populations.

After all, there is nothing more significant for recreational fishermen than having enough fish in the water to make it worth making the effort to go wet a line.

A year and a half has passed since that press release went out, and over that time, the impacts of the Modern Fish Act on fisheries management has been close to nil; in retrospect, all of the posturing after the bill’s passage, only some of which is quoted above, should probably embarrass the people involved. 

Last Wednesday, the Center for Sportfishing Policy, which spearheaded the drive to pass the Act, issued a press release that more-or-less admitted the law’s impotence.  The release quoted Jeff Angers, the Center’s president, who said

“While there has been some forward progress in implementing the Modern Fish Act, there is still a long way to go.  We knew this ship wouldn’t turn on a dime, and we will continue working with NOAA Fisheries, the regional management councils and the states to enforce the law the way Congress intended it.”

Given that the effort to pass the Modern Fish Act, even in the very watered-down form that was finally signed into law, involved extensive, and undoubtedly expensive, lobbying and public relations efforts, Angers is likely using that “we knew this ship wouldn’t turn on a dime” line a lot these days, as he talks to the Center’s various members and supporters, and explains to them, for one more time, why the money they spent on passing the law couldn’t have been better used for research and development, advertising their own products, or paying bigger year-end bonusses to their CEOs.

Given that such money was spent, the Center probably can’t afford to stop beating the Modern Fish Act drum now.  And while Congress is busy with COVID-19 and other issues at the moment, at some point it will get around to addressing other things, including the arguably overdue reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act.  

When that happens, we can expect to see the Center try to revive some of the old Modern Fish Act provisions that were removed from the final version of the 2018 bill, and try to push them through in the reauthorization.

Thus, it’s not surprising that the recent Center press release also referred to an update of its “Modern Fish Act Progress Report,” which purports to show how the Modern Fish Act is changing recreational fisheries management.

Such Progress Report is an interesting document.  It looks at the five major sections of the Modern Fish Act, and rates the alleged progress that the government is making in addressing each one.  Progress is rated on a “traffic light” scale that assigns a color—green, yellow, or red—to each section, with green denoting that significant progress is being made, and red suggesting that little or no progress is being made at all.

The most recent version of the Progress Report, which was last modified on May 31, assigns one green, three yellow, and one red rating to the five sections.

The progress ratings for each section are, in turn, based on three criteria:  timeliness, stakeholder input, and substance.

The way those criteria are applied are arguably somewhat self-serving, and seem to overstate the actual progress being made.  

For example, if one looks at the analysis for Section 101 of the law, which requires the General Accounting Office to complete a study on reviewing recreational/commercial harvest allocations, one finds that top marks were handed out for all three criteria.  But the writeup describing where the matter stands makes it clear that very little was actually achieved.

The GAO’s report was completed within the one-year deadline created by the Modern Fish Act.  However,

“NOAA Fisheries told GAO the Agency does not have the legal authority to ‘direct’ the councils.  Therefore, GAO’s final report states the Agency should ‘work with’ the Councils to take the recommended actions.”

It goes on to say that

“GAO made two recommendations: 1) NOAA Fisheries should work with the South Atlantic and Gulf of Mexico councils to develop documented processes for conducting allocation reviews, and 2) specify how they will document their allocation reviews, including the basis for their decisions, whether fishery management plan objectives are being met, and what factors were considered in the reviews.”

It is very notable that the report neither set out criteria that would require reallocation, nor set forth a set of considerations that a regional fishery management council must use when making allocation decisions.  All-in-all, although the Center gave this option a top grade for “substance,” it seems that the report will do nothing more than lead the councils to generate a little additional paper; actually reallocating harvest will still depend on convincing a majority of council members to support such action, something that has been true since the councils were first formed.

Despite giving this item high marks, the Center effectively admitted that it was puffing up claims of progress when it wrote

“…These recommendations signify that there is still work to do to make the allocation process transparent and accountable to the American public.

“Engaging with the Councils, the recreational fishing and boating community will continue working with Congress to provide oversight of this important responsibility of allocating America’s public resources.  Depending on NOAA Fisheries’ follow-up actions on GAO’s recommendations, the color may change.  [emphasis added]”

Looking at that from the outside, it’s easy to say that given the details of the situation, the item never should have been rated “green” in the first place.  But viewing it from the Center’s perspective, it’s not hard to understand that they had to have at least one top-rated item, even if that rating was qualified, to show donors who might start asking questions.

The three “yellow” rated items show a similar tendency toward overstating success.

The Center gave such a rating to progress on Section 102, Implementation of Alternative Management Measures.  The idea here was to manage fish with “soft” fishing mortality targets, extraction rates, etc.—more or less the sort of management measures that have been proven not to work at the Atlantic States Marine Fisheries Commission—rather than the “hard” annual catch limits that have helped end overfishing and aided the rebuilding of many federally managed fish stocks.

Despite all of the hype that has surrounded the issue, its proponents can’t get around two things. 

The first is that Magnuson-Stevens requires annual catch limits to be established for all managed species, so even if recreational fisheries were governed by a fishing mortality target, the annual catch limit would still be there, anglers would still be held accountable for overfishing, etc.

The second is that such alternative management measures may already be adopted—so long as the annual catch limit remains inviolate. 

Thus, the Modern Fish Act really doesn’t add anything new to the law.  Still, the Center complains that while NOAA Fisheries invited “the recreational fishing community”—which really means spokesmen for the Center and its allied organizations—to speak to the South Atlantic and Gulf of Mexico fishery management councils, and that such councils have formed a working group to investigate alternative management measures,

“The agency report to Congress on Section 102 was submitted in March 2020 and contained few examples of true alternative management measures that would more effectively manage the recreational sector, though the Mid-Atlantic and the South Atlantic have been making some progress even before the Modern Fish Act passed the Congress.”

Which means that the Modern Fish Act didn’t have any real impact on what progress has been made, although the Center can’t exactly admit that in public.  

Instead, it says that

“We have encouraged Agency leadership to be proactive, encouraging Councils’ efforts on alternative management measures.  As those efforts bear fruit, the color will change to green.”

That last sentence probably should have been worded “If those efforts bear fruit…” since Magnuson-Stevens’ requirement of annual catch limits isn’t likely to go away.  Yet because NOAA Fisheries got high marks for stakeholder input on this one—even though it got panned for timeliness, while the substance of its actions remain an unknown—the Center gave this section a middling grade.

The Center gave the same grade to Section 103, which requires a study of the impacts of limited access privilege programs—what we often hear referred to as “catch shares”—in fisheries that anglers share with another sector.  

In this case, the Center noted that

“NOAA Fisheries has contracted with the National Academy of Sciences to conduct this study,”

and so awarded a top rating for timeliness.

However, the Center also complained that

“NAS assembled a panel of individuals who largely support LAPPs.  After the panel’s initial meeting in March 2020, we expressed concerns regarding its neutrality and the potential for bias in the final report.  As a result, NAS has expressed a willingness to address concerns about the panel composition, scope of the panel’s discussions and external review of the final report.”

It’s hard to blame the Center for making such a stan.  After going through all the effort and expense of having the study authorized by Congress, the last thing they would want to see is such study being conducted by an independent panel of international experts who have come to understand that catch share programs work to conserve fish, experts who might take the discussion into places the Center doesn’t want to go—such as catch shares for recreational fishermen or for-hire vessels—and come out with a report which concludes that catch shares are a good idea that we ought to see more of, not less.

It’s as if the Flat Earth Society managed to convince Congress to commission a report on the shape of the planet (and quite a few members of Congress, at least on one side of the aisle, might believe that a good idea), only to find that the panel drafting the report all believed that the Earth was more or less round…

So yes, this one is “yellow” too, even though eventual stakeholder input, as well as substance, remain unknowns.

Section 202, which called for another National Academy of Science report, this one on recommending ways to improve the Marine Recreational Information Program, which estimates anglers’ landings, and make it more useful for in-season management of fisheries, is in about the same situation as Section 103:  NOAA Fisheries acted quickly to commission the report, but the rest remains unknown.

However, here the panel was apparently more to the Center’s liking, representing

“a broad diversity of thought on this topic.”

The Center is also apparently pleased that NOAA Fisheries has created a new task force that will look into the feasibility of

“the generation, delivery, and use of electronically reported data from private recreational anglers.”

Given that in the real world, anglers have generally failed miserably at supplying such data, even when it is required by law, the odds of developing a direct-from-the-angler electronic reporting program that actually works and provides meaningful data is disappearingly slim, it’s difficult to believe that the panel will come up with meaningful answers. 

Even so, this one also somehow earned a “yellow,”  The Center's donors are undoubtedly pleased.

Bu the fact that the Center felt obliged to award progress on Section 201 a failing “red” grade suggests that thigs there must be really bad.

They are.

Section 201 is all about incorporating state and other sources of data, other than those developed by NOAA Fisheries, into stock assessments, harvest estimates and other management science.  The idea, although it’s never explicitly stated, is that the use of NOAA Fisheries data has resulted in scientific decision that often prevent anglers from harvesting as many fish as they’d like—although the same data has also led to decisions that have increased the abundance of many fish stocks and kept such stocks healthy over the years.

The Center and its affiliates apparently believe that if they want more angler-friendly decisions, they need to change the data that underlies them.  They want to see data from state agencies—which may be more interested in supporting local angling businesses and keeping their license-buying constituents happy than in maintaining abundant fish stocks in the long term—or even from “nongovernmental sources,” which could include sources financed by the Center and other industry organizations, used to manage federal fisheries.

The first problem that concept runs into is language in Magnuson-Stevens requiring that

“Conservation and management measures shall be based upon the best scientific information available.”

Thus, even if industry, or some anglers’ rights group, is able to cook the books with a study that it bought and paid for, unless that study passes scientific muster, it can’t be used for fisheries management.

And, despite the Center’s claim that such

“other data sources [have] tremendous potential to improve the accuracy and timeliness of harvest estimates,”

that hasn’t worked out in the real world, either.

I recently wrote of the problem that the Gulf of Mexico Fishery Management Council is having reconciling the Gulf States’ red snapper harvest data with the annual catch limits set in the federal fishery management plan.  Because the state systems are not calibrated to report landings in equivalent terms—and because the Texas system is so obsolete and inaccurate that any sort of mathematical calibration isn’t even possible—there is a real likelihood that the recreational red snapper catch limit will be exceeded in 2020, while the Council tries to figure out how to fix things for 2021.

Again, the Center complains that it didn’t get what it wanted, noting that

“The preliminary draft report to Congress was reviewed by the councils.  Some council stakeholders noted that the draft described the status quo but did not suggest ways to greater incorporate data and analysis management decisions.”

It’s probably a pretty good bet that the “council stakeholders” who objected to the draft report were, by and large, the same council members who traditionally carry the Center’s water (the Center has a very good relationship with the current administration, and so is also very good at getting people representing its interests, as opposed to conservation-minded fishermen, appointed to council seats).

So with low marks for both timeliness and substance, Section 201 got a failing grade.

That’s all a long way to say that the folks who supported the Modern Fish Act have not gone away.

While their bill has had little impact on fisheries management so far, they will be pushing the current administration to give them what they want, knowing that if things change after the November election, the chance of the Modern Fish Act gaining more traction is somewhere between slim and none.

But before then, vigilance is advised.