Of all the fisheries on the East Coast, the mid-Atlantic black sea bass stock may present the most challenging management issues.
The fish aren’t in
immediate peril; the most recent stock assessment update indicated that
spawning stock biomass was more than twice the target level. Overfishing is not
taking place, and young fish continue to be recruited into the stock in
adequate numbers.
At the same
time, recreational catch regularly exceeds the recreational harvest limit (RHL).
The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States
Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass
Management Board (Board) seem neither willing nor able to take the actions
needed to prevent such overages.
In some ways, black
sea bass have become victims of their own success. The stock was badly overfished during the late 1980s and
early 1990s. Overfishing continued until 2007. But once the Council and Board
managed to end overfishing, the stock began to grow; such growth was hastened
by warming winter waters at the edge of the continental shelf, which spurred the recruitment of juvenile fish into the stock.
Because recreational
fishing effort is closely tied to abundance, as the black sea bass population
expanded, more and more anglers began targeting the species. Off New England,
fishery managers saw angler trips primarily targeting black sea bass increase
from 31,400 in 2000 to 190,100 in 2010 to 621,600 in 2020.
Recreational harvest in New England waters also
increased, growing from 294,000 fish in 2000 to 1,601,000 in 2020, even though
recreational fishing regulations grew much more restrictive over that time. A
similar pattern was seen in New York, where black sea bass harvest increased
from 460,000 fish in 2000 to 1,274,000 two decades later, while directed black
sea bass trips jumped from 141,000 to 562,000 over the same period.
As a result of such
increased fishing effort, anglers exceeded the RHL in eight of the eleven years
between 2010 and 2020, with such overages ranging from a nominal 4% in 2018 to
a striking 141% in 2012; in six of the eight years, the RHL was exceeded by
over 50%. Based on the landings during the first eight months of 2021, managers
expect anglers to exceed this year’s RHL.
A History of Inaction
Yet, despite such
repeated overages, the Council and Board have, since 2019, made no effort to
keep recreational catch at or below the RHL.
2019 was a critical
year, for it was the year that the Marine Recreational Information Program
(MRIP) which both the Council and Board use to estimate recreational effort,
catch, and landings, replaced its venerable Coastal Households Telephone Survey,
used to estimate angling effort, with a new, mail-based Fishing Effort Survey. The new survey revealed that angling
effort, and so recreational catch and landings, were much higher than
previously believed.
An operational stock assessment, released in 2019, included
MRIP’s higher landing estimate among the data that it used to calculate the
spawning stock biomass; as a result, such assessment estimated black sea bass
spawning stock biomass at 33,407 metric tons at the end of 2018, which was much
higher than the 22,176 metric tons estimated for 2015 in the last benchmark stock assessment—even though the spawning stock
biomass has been declining since 2014.
The higher biomass
estimate in the operational assessment led the Council and Board to increase the RHL from 3.66 million pounds in 2019 to 5.48
million pounds in 2020 and 2021. Yet recreational landings remained
substantially higher; Council staff predicted that the coastwide black sea
bass landings for 2019 would be about 7.33 million pounds, well in
excess of the 2020 RHL. Such overage would normally mean that the recreational
black sea bass regulations for 2020 would be made more restrictive, to prevent
anglers from again exceeding the RHL.
Overages were not
unusual in the recreational black sea bass fishery. The average of
recreational landings for the years 2016-2018 substantially exceeded
not only the average RHLs for those years, but the recreational sector’s annual
catch limits (ACLs), too. When average landings exceed the average ACLs in any
three-year period, while spawning stock biomass remains above the target
level, accountability measures in the black sea bass management plan require “consideration of adjustments to the
recreational bag, size, and/or season limits in response to the ACL overage,
taking into account the performance of the measures and conditions that
precipitated the overage.”
Such adjustments were
never discussed by either the Council or Board.
Council staff recognized that “there may be a
consideration that the 2020 recreational management measures in state and
federal waters remain unchanged from 2019 to allow the Council and Board time
to transition to a management system that accounts for the new MRIP estimates
in a more gradual fashion,” but warned that “status quo recreational
management measures in 2020 could pose an unacceptably high risk of exceeding
the [Overfishing Limit]. [emphasis in the original]”
Yet, despite that
warning, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee
(Monitoring Committee), which is composed of individuals representing the
Council, the National Marine Fisheries Service (NMFS), the Board, and affected
states, recommended that the Council and Board make no changes to
the recreational black sea bass regulations, despite the likelihood that
anglers would exceed the 2020 RHL.
The Monitoring Committee justified its recommendation by
saying, “it is very hard to justify a reduction when the RHL is increasing by
59% compared to 2019, spawning stock biomass was 2.4 times the target level in
2018, and availability to anglers remains very high…it is challenging to
constrain the recreational fishery under current high levels of availability
and further restrictions on harvest would likely increase discards…spawning
stock biomass has remained very high despite multiple years of [Acceptable
Biological Catch] overages going back at least to 2015…”
The Monitoring
Committee recommended status quo measures, rather than the 29% reduction
suggested by Council staff, even though it fully recognized that such measures
were likely to cause recreational harvest to exceed the RHL by
26%, the recreational ACL by 23%, and the Acceptable Biological Catch (ABC) by
12%. Such recommendation would appear to be a clear violation of NMFS policy,
as well as a violation of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens), which governs all
fishing in federal waters.
Section 302(h)(6) of
Magnuson-Stevens requires each regional fishery management council to “develop
annual catch limits for each of its managed fisheries that may not exceed the
fishing level recommendations of its scientific and statistical committee…”
Such fishing level recommendations take the form of the ABC. By recommending
2020 recreational black sea bass regulations that it knew would probably result
in the 2020 black sea bass ABC being exceeded by 12%, the Monitoring Committee
rendered the ABC and recreational ACL meaningless, an action clearly
inconsistent with the relevant section of Magnuson-Stevens.
Moreover, NMFS’ published guidelines for establishing ACLs and
related accountability measures state that “If catch exceeds the ACL for a
given stock or stock complex more than once in the last four years, the system
of ACLs and [accountability measures] should be reevaluated, and modified if
necessary, to improve its performance and effectiveness.” The Monitoring Committee
admits that there were “multiple years…going back to at least 2015” when black
sea bass overages exceeded not only the ACL, but the ABC as well. Yet, instead
of recommending a reevaluation of the ACLs and accountability measures, it
recommended status quo.
Both the Council and
Board concurred.
Events were little
different a year later, when 2021 management measures were discussed.
Thanks to a new Council risk policy, the 2021 black sea bass RHL was 6.34 million pounds, the highest
RHL ever set for the species. But, because COVID-19 had affected the MRIP catch
surveys, no estimates of 2020 landings were available; 2019 data would have to
be used. 2019 recreational black sea bass landings totaled 8.61
million pounds, more than 2 million pounds more than the 2021 RHL. Once again,
more restrictive regulations were called for, and once again, the Council and
Board maintained the status quo.
This time, even Council staff advised against change, saying “Given challenges
associated with transition to management based on the new MRIP data, high availability
of black sea bass to anglers, and a very healthy stock status, the Council and
Board agreed to leave recreational management measures remain [sic] unchanged
in 2020 compared to 2019 to allow more time to gradually transition to a
management system that accounts for the new MRIP data. These conditions remain
relevant for 2021 recreational management measures.”
The supposed
“challenges” posed by the new MRIP data were used to justify maintaining status
quo regulations for both 2020 and 2021. However, given that the same new MRIP
data was used to calculate the higher RHLs adopted for both 2020 and 2021, it’s
not clear why data that was acceptable for use in an operational stock
assessment, and so presumably represented the best available scientific information,
was not also suitable for determining when anglers might have exceeded their
new, higher harvest limits. Neither Council staff nor the Monitoring Committee
chose to explain that seeming contradiction.
Will 2022 Be Different?
Because of the status quo
regulations, anglers substantially exceeded the RHL again in 2021. Although
final figures have yet to be compiled, Council staff projects that 2021 recreational black sea bass landings will be about
11.98 million pounds, 89% above the RHL, even before dead discards, which
typically add between three and four million additional pounds to the total,
are considered.
Because of the
uncertainty inherent in MRIP estimates, Council staff recommended that, instead of basing 2022
management measures solely on 2021 recreational harvest, the average harvest
for the years 2018-2021, when recreational measures remain unchanged, be used.
Even taking that approach, recreational landings would have to be reduced by
about 28% in order to keep recreational landings at or below the RHL.
In making its
recommendation, Council staff warned that,
The recreational ACL and the RHL are based on the best available
science, are intended to prevent overfishing, and are reflective of recent
stock status. Therefore, allowing multiple years of recreational
overages may pose a risk to the stock, even at high biomass levels. In
addition, NMFS has indicated that although status quo measures were justified
for 2020 and 2021 despite expected RHL overages, this approach may not be
justifiable for 2022. The [Monitoring Committee] should take this into
consideration when developing their recommendation for 2022 management
measures. [emphasis in original]
Despite that warning,
when the joint Council/Board Summer Flounder, Scup, and Black Sea Bass Advisory
Panel met on November 18, 2021, the Monitoring Committee again recommended
status quo management measures for the 2022 season. If NMFS insisted on
imposing accountability measures, the Monitoring Committee arbitrarily
suggested reducing landings by just 14%, half the reduction recommended by
Council staff.
Thus, the Monitoring
Committee again recommended that both Council and Board again render the RHL
meaningless, while holding commercial fishermen to their annual quotas.
Growing Discontent
Such disparate
treatment did not go over well with representatives of the commercial fishing
industry.
George Topping, a
Maryland commercial fisherman who sits on the advisory panel, complained about
the lack of recreational accountability, saying “Somebody needs to hold these
people accountable…To keep rewarding these people and giving them more fish is
never going to solve the problem.”
Yet, despite such
concerns, the Council and Board are moving forward with a so-called Recreational Reform Initiative (Initiative),
which would address recreational excesses not by crafting management measures
that more effectively constrain anglers’ harvest, but by eliminating the RHL
and, in some versions of the Initiative, by completely decoupling
recreational management measures from both the ACL and annual recreational
landings.
No one has yet
determined whether the Initiative complies with the mandates of
Magnuson-Stevens.
The Council’s
willingness to ignore the spirit, and very probably the letter, of
Magnuson-Stevens when managing black sea bass caused Meghan Lapp, Secretary of
the Center for Sustainable Fisheries and a representative of Rhode Island-based
Seafreeze Ltd., to say at the recent Advisory Panel meeting, that the continued
recreational overages were “not acceptable,” and to ask, “Is the Magnuson Act
optional?”
She went on to ask
whether, if there is “no strong conservation need” for further restrictions on
the recreational fishery, there is also no strong conservation need for
commercial restrictions.
It was a good question,
for whatever the black sea bass may or may not need, it is difficult to justify
holding one sector strictly accountable for its landings while allowing another
to shirk its obligations under the management plan.
A Legal Question
It’s not even clear
whether the Council may legally ignore chronic recreational overages in the
black sea bass fishery.
In 2014, the United
States District Court for the District of Columbia decided the case of Guindon v.
Pritzker, which addressed a
very similar issue, the Gulf of Mexico Fishery Management Council’s repeated
failure to hold anglers accountable for chronically overfishing red snapper. In
its decision, which found that NMFS had failed to meet its obligations under Magnuson-Stevens,
the court stated that
Under the MSA, NMFS has a statutory duty to: prohibit the
retention of fish after quotas are reached in the Gulf of Mexico red snapper
fishery; use the best scientific information available when making management
decisions; require whatever accountability measures are necessary to constrain
catch to the quota; avoid decisions that directly conflict with the [fishery
management plan’s] allocation of catch; and, where sectors are managed
separately, avoid penalizing one sector for overages that occur only in
another.
Admittedly, the
mid-Atlantic black sea bass fishery differs in some important respects from the
Gulf fishery for red snapper; most particularly, black sea bass abundance is
high, while red snapper were still overfished when Guindon was decided. The recreational accountability measures applicable to black
sea bass also prohibit the imposition of in-season closures to prevent
recreational overages, and only require the Council to “consider,” rather than
actually impose, accountability measures if such overages occur when spawning
stock biomass is greater than its target level. For those reasons, some might
argue that the court’s reasoning in Guindon doesn’t apply to the black sea bass
fishery.
Yet, there are enough
similarities between the actions that gave rise to Guindon and the Council’s failure to address
recreational black sea bass overages to suggest that the Guindon court’s logic would apply to black sea
bass as well. The court’s finding that “NMFS has a statutory duty to…require
whatever accountability measures are necessary to constrain catch to the quota”
is particularly relevant, as it seems to imply that merely considering accountability measures, that are never
actually required, may not be enough to
fulfill the Council’s obligations.
When the Council and
Board meet in joint session, on the afternoon of December 14, 2021, to discuss
recreational management measures for the 2022 black sea bass season, they will
have to choose between finally taking action to rein in recreational
overharvest or, once again, doing nothing at all.
The choice that they
make will answer Ms. Lapp’s question, “Is the Magnuson Act optional?” with
respect to black sea bass.
We can only hope that
their answer is “No.”
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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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