MID-ATLANTIC FISHERIES: DID REALLOCATION REALLY HAPPEN?

On December 16, the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board finalized the long-delayed Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment.

Such Amendment was initiated over two years ago.  Scoping hearings were held in early 2020, and a final round of public comment on the proposed amendment took place in February and March of 2021.  At the April Mid-Atlantic Council meeting, the Council and Board met in joint session, and decided to defer final action on the Amendment until December 2021, in order to free up Council and ASMFC staff and give them time to work on the so-called Recreational Reform Initiative.

Given that the Recreational Reform Initiative includes a proposed control rule that would largely decouple recreational management measures from the recreational catch limit, allow recreational fishermen to exceed such catch limit with relative impunity, and so render recreational quotas largely academic, the Council and Management Board apparently believed that, by prioritizing the Recreational Reform Initiative, they could contrive a way for anglers to escape the bounds of their quotas, and so be allowed to catch more fish, without having to directly address the always divisive and acrimonious issue of reallocation.

However, progress on the Recreational Reform Initiative was slower than initially expected, and it became clear to most people involved that it would not be completed until some time in 2022, at the earliest.  Thus, when the December Council meeting rolled around, it became necessary to address the Allocation Amendment, whether people wanted to do so or not.

As is always the case with allocation issues, the Amendment was controversial.  Commercial fishermen, who had been awarded the lion’s share of summer flounder landings, an even bigger share of the scup catch, and 49% of black sea bass landings were, quite naturally, overwhelmingly in favor of the status quo.  They were unwilling to give up even a single fish to the recreational sector, and made comments such as

“…Taking quota from the commercial sector and giving to the recreational sector won’t even cover the recreational discards.  Any resulting reallocation will result in real hardship on the commercial industry…”

“…For years, we have been struggling with low trip limits and quotas.  The recent increase in quotas has finally allowed for better fishing and we cannot go back.  Instead of giving quota to the recreational sector, we need to lower the minimum size for the recreational fishery so they can bring their fish in instead of creating discards.  How can you justify taking quota away from a sector that has been suffering for so long?  I hope we can find a better way to help the recreational fishery.  We need to address the recreational sector problems before giving commercial quota away.  The whole process is unfair…”

“…When we go over with commercial limits, we pay it back.  There is no one looking at logbooks or filling out a bill of landing for recreational folks.  The commercial side can be held accountable…”

And,

“New York commercial fishermen will be asking for status quo on all three species.  We feel in New York that the recreational sector is basically a runaway train.  They can continue to grow every year while the commercial sector is at a standstill due to the regulations and limited access.”

Recreational fishermen just as predictably supported a reallocation that gave them more fish, arguing

“…the recent increases in recreational catch are an artifact of changes made in the [Marine Recreational Information Program] estimation process.  We feel it’s necessary to put the recreational/commercial allocation back to its previous balance before those changes.  We support the base years used to the most recent years for determining allocation…”

“…The revised [Marine Recreational Information Program] numbers were used in assessments that create our [Total Allowable Catch] and quotas, and if we use it for that then we have to use it for allocation distribution so that they are appropriate and fair…”

And,

“The recreational industry is dying a slow death.  So many anglers tell me they’re not fishing anymore due to regulations…With the pandemic, the bait and tackle shops and the for-hire fleet are hurting.  Liberalizations should be used as a tool to help rebuild the industry.”

Allocation is never about conservation.  From a conservation standpoint, what matters is how many fish are killed; who does the killing is completely irrelevant.  So long as overfishing doesn’t occur, the harvest, whether commercial or recreational, will be sustainable. 

Thus, the debate over the Amendment revolved around philosophy and self-interest.

Should quotas remain status quo, just because they’ve been that way for, in the case of summer flounder, the past thirty years, and somewhat less for scup and black sea bass?

Should quotas be changed to reflect managers recent, changed understanding of commercial and recreational catch during the “base years” used to set such quotas?

Or, should quotas be updated to reflect current patterns of resource use, instead of the patterns that existed three decades ago?

However one answered those questions, the Allocation Amendment included at least one appropriate scenario.

Having said that, there were some overriding concerns.

One was that a recalibration of recreational catch and landings data, based on recent revisions to the Marine Recreational Information Program, revealed that recreational catch and landings during the base years for summer flounder, scup, and black sea bass were higher than previously believed; because of that, the current allocation understated the recreational share of the fishery.

The Magnuson-Stevens Fishery Conservation and Management Act includes a provision, known as National Standard 2, which requires that

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

It could be easily argued that the then-current allocation, based on recreational data from the 1980s (in the case of summer flounder) or other earlier period, and not on the recalibrated recreational information, did not meet that standard.

There was also a 2017 federal court decision, in the matter of Guindon v. Pritzker, which found that a reallocation of red snapper in the Gulf of Mexico which favored the recreational sector because it considered a past recreational landings history in which

“actual recreational harvest in pounds of red snapper exceeded the [recreational] quota in 9 out of 16 years, including 5 of the last 6 years,”

could not be deemed “fair and equitable,” when the commercial sector was strictly held to its quota during that time.  That decision had to be taken into account, as a number of the reallocation options would adopt new base years when the recreational fishery had exceeded its quota of the relevant species, an issue that was finally addressed by removing such overages from the reallocation calculation.

The final, December 16 debate took up several hours.

It began with Eric Reid, Legislative Proxy for Rhode Island, moving that the Management Board maintain the status quo, and make no changes to existing allocations.  His motion was seconded by Shanna Madsen, of the Virginia Marine Resources Commission.  Council Member Earl Gwin of Maryland made an identical motion on behalf of that management body, which was seconded by Dewey Hemilright of North Carolina.

In support of his motion, Mr. Reid repeated some of the arguments made by commercial fishermen during the comment period, saying that reallocation would harm fishing communities and threaten food production.  He also opined that moving quota from the limited-access commercial fishery to the open-access recreational community would not solve any problems that might exist in the fishery.

However, it was clear that the no-action option was unpopular with most of those who sat on the Council and Board.  Adam Nowalsky, a Council member who also serves on the Management Board as the Legislative Proxy from New Jersey, moved to replace Mr. Reid’s motion with a substitute that would reallocate summer flounder, scup, and black sea bass between the sectors, using a formula that combined the sectors’ respective landings during the existing base years with more recent landings.

That motion was seconded by Joseph Cimino, a New Jersey fishery manager, for the Council, and by Nicola Meserve, a Massachusetts fishery manager, for the Management Board.

In explaining why they seconded the motion, Mr. Cimino noted that using historical landings over a broader period of time would be “beneficial” to the management effort.  Ms. Meserve made a similar argument, saying that balancing historical landings and recent fishery performance was the most appropriate way to address the issue.  She also observed that the Council must articulate a rationale for reallocation, and choose an allocation approach that was in the best overall interest to the nation.

While the substitute motion seemed to garner more support than the motion to maintain the status quo, a number of Council and Management Board members were clearly not comfortable with a major reallocation that would give each sector 50% of the fluke catch (instead of allowing the commercial sector 60% of landings), change the scup allocation to 63.5% commercial, 36.5% recreational (from 78% commercial, 22% recreational), and amend the black sea bass catch allocation to 40.5% commercial, 59.5% recreational (from a landings allocation of 49% commercial, 51% recreational).

Both Council and Management Board members noted that, while status quo wasn’t a viable option, Mr. Nowalsky’s substitute motion take too many fish away from the commercial sector.  But if many of the people sitting around the management table were conflicted about how to move forward, the public was far more polarized, expressing views that were no different from those presented during the earlier public comment periods.

Those representing recreational interests favored Mr. Nowalsky’s motion.

Paul Haertel, representing the Jersey Coast Anglers Association, alleged that, during the 1970s, the recreational sector had larger landings than the commercial sector did, and that the base years later adopted to allocate fish between the two sectors favored the commercial side, which had, in his words, “devastated” fish stocks and so drove down recreational landings.

Michael Waine, representing the American Sportfishing Association, and John DePersenaire, representing the Recreational Fishing Alliance, stole an argument from the commercial fishermen when they observed that summer flounder, scup, and black sea bass were all food fish; thus, anglers who sought them were seeking fish not just for sport, but to take home and eat, something that became more important during the COVID pandemic.

Representatives of the commercial industry tried to counter such claims.

Meaghan Lapp, representing the Rhode Island company Seafreeze and other commercial interests, emphasized that, while commercial fishermen were held accountable for exceeding their quotas, anglers were not, so allocating more fish to the recreational sector will merely lead to more overages and so harm commercial fishermen.  She opined that

“The recreational sector will dop what it wants regardless of [the recreational harvest limit].”

The same theme was sounded by David Aripotch, a Montauk, New York commercial fisherman, who complained about the recreational sector, saying

“They’re going hog wild.  You’re not stopping them but you’re stopping me…[The National Marine Fisheries Service] can’t rein those people in.”

But when the vote was finally taken, it appeared that Mr. Nowalsky had prevailed:  The Council approved the substitute motion by a vote of 13 to 5, with a single abstention, while the Management Board approved it 9 to 2, with both NMFS and the U.S. Fish and Wildlife Service abstaining.

However, that victory was very short-lived.

Ms. Madsen rose to make a new substitute motion, which would retain the original base years (1980-1989 in the case of summer flounder, 1988-1992 in the case of scup, and 1983-1982 in the case of black sea bass), and merely revise the allocation to reflect the recalibrated Marine Recreational Information Programs estimates of recreational catch and landings during those times.

Whether such motion represented a true reallocation of fishery resources, or merely corrected estimates of recreational effort, catch, and landings during the original base years, and so changed the allocation to what it should have been all along, is a debatable question.  However, the motion did add a new element by stating that the summer flounder and black sea bass allocation would, going forward, be based on catch, rather than on landings (the scup allocation had been catch-based all along), meaning that each sector’s dead discards of all three species would be considered as part of the allocation process.

Ms. Madsen’s motion would lead to allocations in which the summer flounder catch would be allocated 55% commercial, 45% recreational, the scup catch would be split 65% commercial, 35% recreational, and the black sea bass catch would be divided 45% commercial, 55% recreational.  In each case, the recreational sector would receive more fish than it would under the status quo measures, but less than they would receive pursuant to Mr. Nowalsky’s motion.  It was seconded by James Gilmore, the New York fishery manager, for the Management Board.  For the Council, an identical motion was made by Paul Risi, a member from New York, which was seconded by Mr. Gwin of Maryland.

The motion represented a compromise between the original, defeated motion for the status quo and Mr. Nowalsky’s substitute motion.  As such, few Council or Management Board members expressed either strong support or strong opposition.  

However, Michael Pentony, the Regional Administrator for NMFS' Greater Atlantic Regional Fisheries Office, noted that, while he had a lot of concerns about the status quo option, Ms. Madsen's motion reflected the best available scientific information, while basing allocation on catch rathern than landings represented "a good step forward."

In the end, Ms. Madsen's motion passed easily, with a Council vote of 14 in favor, 6 against and a single abstention; the Management Board voted 9 in favor, 1 opposed, and the two federal agencies abstaining, while one state’s delegation cast a “null vote” indicating that its members could not agree on what to do.

Did that vote actually represent a reallocation, or a desire to keep the allocation—meaning the base years—unchanged, while correcting an earlier underestimate of recreational catch and landings?

I’d argue that a reallocation did really take place, at least in the summer flounder and black sea bass fisheries, because the decision to base allocation on catch, rather than on landings, provides both sectors with an incentive to rein in dead discards and, depending on how well such discards are controlled, could have a real impact on what is brought back to the dock.

In the scup fishery, I’d argue that we just saw a correction that merely adjusts the existing recreational allocation to what it should have been for the past thirty years.

Given how futile allocation fights usually turn out to be, it was probably a reasonably good outcome for the recreational sector.  At the same time, the decision to retain the existing base years exposes an ongoing problem with the entire allocation process.

It always looks backwards.

In setting allocations, fishery managers still can’t break out of the box that has them planning for the future by looking at how things were in the past, instead of looking forward, and asking whether a break from the past might offer the best future opportunities for the nation.

Yet in an ocean that is beset by a changing and steadily warming climate, by increased pressure on many fisheries resources, and by new and competing uses of marine resources, it is pretty sure that whatever the future may hold, it will be very different from what went before.

In such circumstances, the past presents a poor template for what waits ahead.