The
relationship between the Mid-Atlantic Fishery Management Council (Council) and
overfishing goes back a long way. In 1999, the Council adopted a summer
flounder quota that had just an 18 percent probability of preventing
overfishing, an action that led to the landmark court decision in Natural Resources Defense Council v. Daley, which
established the principal that, to pass legal muster, a fishery management
measure must have at least a 50 percent probability of achieving its
conservation goals.
Immediately after the court handed down that decision, the Council
divorced itself from any management measure that might condone overfishing, and
spent nearly two decades successfully rebuilding and conserving once-overfished
stocks. At one point in the early 2010s, it was the only one of the eight
regional fishery management councils that had completely ended overfishing, and
didn’t preside over any overfished stocks.
Yet, overfishing remained seductive. The Atlantic States Marine
Fisheries Commission, which manages some fish stocks in conjunction with the
Council, has long been under its spell, and many recreational and commercial
fishermen have also fallen for its charms. All have been willing to ignore the
long-term consequences that inevitably flow from a few reckless years of
excess. Only the Council, chaperoned by the marine conservation community and
scrutinized by the courts, resisted overfishing’s blandishments in recent
decades.
And yet, the Council was never free from overfishing’s
temptations. And when temptation hovers charmingly within reach, it’s hard not
to give in.
Thus, the Council dallies with a “control rule” approach to
recreational fisheries management, which would set management measures for
overfished stocks at “the most restrictive measures which could be tolerated
without major loss of businesses such as bait and tackle shops and
party/charter businesses,” without regard to whether such measures would permit
overfishing or prevent the rebuilding of overfished stocks.
Council staff has acknowledged that key aspects of the proposed
control rule approach are “not feasible,” given the standards for conservation
and management imposed by the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens). Staff also
admits that the remaining aspects of the proposal “are conceptual…and have not
been fully developed or analyzed.” Yet many Council members remain infatuated
with the idea, and have refused to leave it behind.
But the Council’s faithfulness to the principles of
Magnuson-Stevens was far more sorely tested when it set recreational harvest
limits for the 2020 and 2021 seasons; its first serious fling with possible
overfishing occurred at its December 2019 meeting, when it addressed
recreational management measures for black sea bass.
At that meeting, Council members were confronted by a 2019 operational stock
assessment (operational assessment) which, based on updated
recreational catch, landings, and effort data, revealed that recreational
landings were much higher than previously believed. It also revealed that the
black sea bass spawning stock biomass was considerably larger than managers had
realized, which would allow managers to substantially increase the recreational
harvest limit (RHL). But the increased RHL was not large enough to completely
offset the revised recreational landings estimates.
After evaluating all of the new information, Council staff recommended that
the Council, along with the Atlantic States Marine Fisheries Commission’s
Summer Flounder, Scup and Black Sea Bass Management Board (Sea Bass Board),
adopt regulations that would reduce recreational landings by 20%, in order to
keep such landings at or below the 2020 RHL.
The Council’s Summer Flounder, Scup and Black Sea Bass
Monitoring Committee (Sea Bass Monitoring Committee) disagreed. It recommended that
2019 regulations carry over, unchanged, into the 2020 season, even though doing
so would probably cause anglers to exceed the RHL by 26 percent and the
recreational annual catch limit (ACL) by 23 percent. Maintaining status
quo regulations in 2020 was also likely to cause the combined
recreational and commercial landings to exceed the acceptable biological catch
(ABC), set by the Council’s Scientific and Statistical Committee (SSC), by 12
percent.
However, such combined landings were expected to fall about 13
percent below the overfishing limit (OFL), so no overfishing was expected to
occur.
Still, avoiding overfishing was far from guaranteed. Scientists
can easily adopt an OFL that is too high and allows overfishing to occur,
simply because they don’t understand every factor that might affect the health
of a fish stock. Such incomplete understanding is deemed “scientific
uncertainty,” and is addressed in guidelines published by the
National Marine Fisheries Service (NMFS), which state that “Acceptable
biological catch (ABC) is a level of a stock or stock
complex’s annual catch, which is based on an ABC control rule that accounts for
the scientific uncertainty in the estimate of OFL, any other scientific
uncertainty, and the Council’s risk policy.”
ABCs are an important part of the management process. If no ABC
was established, and the ACL was set at or near the OFL, there would be a real
risk that overfishing would occur, simply because managers didn’t account for
the scientific uncertainty that exists even in the most-studied fisheries.
Thus, Magnuson-Stevens prohibits a
regional fishery management council from setting an ACL that would “exceed the
fishing level recommendations of its scientific and statistical committee,” a
mandate echoed in the NMFS’ guidelines, which provide that “Annual
catch limit (ACL) is a limit on the total annual catch of a stock or stock
complex, which cannot exceed the ABC…”
Yet, despite the risk that overfishing might occur, and the
seeming prohibition, in both Magnuson-Stevens and NMFS’ published guidelines,
on maintaining an ACL that exceeds the ABC, both the Council and Sea Bass Board
approved status quo black sea bass regulations for
2020.
Then, early in 2020, the COVID-19 pandemic struck the United
States. As part of the effort to control the virus, NMFS suspended the
Northeast Fisheries Science Center trawl surveys, which are used to determine
the health of fish stocks. Complimentary state surveys, which sample fish in
inshore waters, were also suspended or postponed. Scientific uncertainty
increased as a result.
At the same time, state restrictions led to a temporary
suspension of the angler intercepts that form the basis of recreational catch
and landings estimates. As noted in a 2020 Sea Bass Monitoring
Committee report,
due
to a lapse in angler intercept sampling due to Covid-19 restrictions, 2020
catch estimates from the Marine Recreational Information Program (MRIP) will
not be available prior to the end of 2020…there are significant gaps in
intercept data this year…Intercept sampling resumed at different points in the
year for different states, but not all to the same level…current conditions
have led to some changes in coverage and information gathered. One notable
trend is that interviewers are getting fewer length and weight measurements
during interviews due to the reluctance of interviewers and anglers to closely
interact. Interviewers in some states are being given more discretion in
sampling protocols to ensure their safety, which could ultimately create some
bias in the data. In addition, at sea sampling for headboats has essentially
been suspended everywhere for safety reasons.
Those changes caused another sort of uncertainty—management
uncertainty—to rise to unprecedented levels. According to the NMFS guidelines,
“Management uncertainty refers to uncertainty in the ability of managers to
constrain catch so that the ACL is not exceeded, and the uncertainty in
quantifying the true catch amounts (i.e., estimation errors). The sources of
management uncertainty could include: Late catch reporting; misreporting;
underreporting of catches; lack of sufficient inseason management, including
season closure authority; or other factors.”
The guidelines also suggest how regional fishery management
councils should address management uncertainty. “[Annual catch targets], or the
functional equivalent, are recommended in the system of [accountability
measures] so that ACL is not exceeded. An [annual catch target] is an annual
amount of catch of a stock or stock complex that is the management target of
the fishery, and accounts for management uncertainty in controlling the catch
at or below the ACL.”
The guidelines further advise that “If an Annual Catch Target
(ACT), or a functional equivalent, is not used, management uncertainty should
be accounted for in the ACL.”
The Council lacked reliable recreational catch and landings data
for 2020, and so couldn’t know whether existing regulations had kept
recreational landings below the RHL, or whether overfishing might have occurred
in one or more stocks. Yet the Council failed to account for such management
uncertainty in any recreational fishery.
It set no annual catch targets that might buffer against
management uncertainty’s effects. Instead, it maintained status
quo.
That might work out for summer flounder. The RHL was scheduled
to increase in 2021, so maintaining status quo rules
provided a buffer of sorts. It might also work out for scup, as commercial
landings typically fall well below quota and offset recreational overages.
But by maintaining status quo management
measures for black sea bass and bluefish, the Council may have opened the door
to overfishing one or both stocks.
The operational assessment projected that, in 2020, the black
sea bass spawning stock biomass would be 22,699 metric tons; it also projected
that such spawning stock biomass would fall to 20,379 metric tons in 2021–about
a 10 percent decline. If the Sea Bass Monitoring Committee determined that, in
2020, overall landings would fall just 13 percent below the OFL, might status
quo management measures cause landings to exceed the OFL in
2021, when the spawning stock biomass was 10 percent smaller?
The Sea Bass Monitoring Committee chose not to say.
But status quo regulations would leave no margin
for error, despite the acknowledged scientific uncertainty, and the far
greater, but unacknowledged, management uncertainty regarding the stock.
Emerson Hasbrouk, a Sea Bass Board member from New York,
expressed concern about overfishing in 2021, particularly if commercial
fishermen land their full quota, something that, because of COVID-19, did not
occur in 2020. He admitted that he was “really concerned about where we’re
headed here.”
Another Sea Bass Board member, Eric Reid of Rhode Island, was
more vehement, saying, “To look the other way because we have no data…four or
five years of [anglers] going over [the RHL], saying this is temporary…that
isn’t right.”
But no one on the Council seemed too concerned. Not a single
Council member voted against the status quo.
The Sea Bass Monitoring Committee justified its status quo recommendation by saying, in part, that the
“Council/[Sea Bass] Board wished to avoid further restricting [recreational]
fishery during [MRIP] transition period considering biomass is so high.” The
same argument could not be made for status quo bluefish
management, as bluefish were already overfished.
The problem with bluefish management, as with black sea bass,
dates back to 2019, when the Council and the Atlantic States Marine Fisheries
Commission’s Bluefish Management Board (Bluefish Board) rejected the Bluefish Monitoring
Committee’s recommendation to base projected 2019 landings (and
so 2020 regulations) on an average of landings in the three previous years.
Using such three-year average would have resulted in a 2020
bluefish RHL of 3.62 million pounds, a stark drop from 2019’s 11.62 million
pound RHL, and would have led to very restrictive recreational management
measures. To avoid such result, both the Council and the Bluefish Board voted
to base 2020 regulations just on the 2018 landings, which were the lowest in a
time series that dated back to 1985. That allowed them to set a 2020 RHL of
9.48 million pounds, and adopt far less restrictive management measures than
they would have adopted otherwise.
2019 recreational bluefish
landings ended up to be about 2.3 million pounds, or about 17
percent, higher than they were in 2018, meaning that 2020 management measures,
based on an unrealistically low projection of 2019 landings, probably caused
anglers to exceed the RHL, perhaps by a significant amount.
Because there is no landings data, no one knows for sure;
management uncertainty has completely obscured the path forward.
In the face of such uncertainty, and despite the fact that the bluefish stock was overfished,
the Council’s Bluefish Monitoring Committee still recommended status
quo rules for 2021. But, perhaps harboring doubts about that
recommendation, it also noted that
To project recreational landings, the [Monitoring Committee] typically uses the most recent 3-year average of landings. The 2017-2019 average landings (20.30 M lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 M lbs. This landings projection methodology indicates a potential 73.86% overage of the 2021 RHL of 8.34 M lbs…these analyses indicate a potential range of 2021 landings projection estimates that should be reviewed by the Council and Board. [emphasis added]
But neither the Council nor the Bluefish Board chose to review
or debate the landings projections. Instead, without any meaningful discussion,
both bodies voted, by overwhelming margins, to adhere to the status
quo.
Magnuson-Stevens includes 10 National Standards for Fishery
Conservation and Management. First among those is the requirement 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. [emphasis added]”
Yet, before casting their votes, not a single Council member
asked whether status quo rules, whether for black sea bass
or bluefish, met that basic legal requirement.
Somebody ought to start asking such questions soon. Unless they
do, the Council’s recent flirtation with overfishing could bloom into a
full-fledged affair.
-----
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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