Marine fisheries management differs from most forms of
wildlife management simply because it is the only form of management where non-professionals—typically non-professionals without formal scientific training, but with a direct financial
interest in the resources being managed—can tell professional managers what to
do.
If I go hunting for ducks, I’m subject to rules developed by
biologists employed by the United States Fish and Wildlife Service. If I’m fishing for trout, pickerel, or
freshwater bass here in New York, my conduct is governed by decisions made by
the Department of Environmental Conservation, which also determines what
I can do while pursuing squirrels, pheasant, or bear.
In all of those cases, the professional managers might ask sportsmen for input, perhaps as to whether they’d prefer a longer season
or higher bag limit. And if regulations need to be altered, the proposed changes will be released for public comment
before they go into effect. But in all cases, professional managers make the final call, rather than individuals with an economic
or other interest in the outcome.
But in marine fisheries, thingsdon’t work that
way. Instead, the regulated community—members
of the commercial and recreational fishing industry, as well as recreational
fishermen—can and do directly decide regulatory outcomes.
The other day, New York’s Marine
Resources Advisory Council met to discuss, among other things, the 2023
recreational rules for black sea bass.
Black sea bass regulation is always a touchy subject,
because the fish are currently very abundant; a recent stock assessment update
found that current spawning stock biomass was twice the target level. Because they're more abundant
than anything else, except possibly scup, people are catching a lot of
them in a lot of places. Anglers
tend to concentrate effort on whatever is easiest to catch at the time, so many have focused their effort on sea bass, leading to ever high landings which in recent years, have exceeded the
recreational harvest limits and required more restrictive regulations to keep anglers' landings a a sustainable level.
Anglers don’t understand why a seemingly abundant resource
should be subject to increasingly restrictive regulations, and the angling
industry is angered by rules that they consider both unnecessary and bad for business. There are a lot of folks who don't believe that black sea bass regulations should change at all.
However, even when managers used a new approach to setting
recreational regulations for black sea bass, which was recently
adopted by the Mid-Atlantic Fishery Management Council and Atlantic States Marine
Fisheries Commission and designed to allow higher landings, they found that
they had to reduce black sea bass landings by 10%, compared to what they had
been in 2022.
New York offered three ways to do that. The size limit could be increased from 16 to
16 ½ inches, the season start could be pushed back from June 23 to July 1, or
the season start could be pushed back from June 23 to June 28 and the
bag limit could be reduced from 3 fish 2 for the period June 28 through August
31.
The last alternative had little support, so vote came down
to a choice between increasing the size limit or shortening the season. Arguments could be made for and against both
proposals; a questionnaire distributed by the state regulators found that
private boat anglers preferred the shorter season, while the for-hire industry preferred the higher size limit; a representative of the fishing tackle
retailers seemed to prefer the higher size limit, too.
That preference for the higher limit seemed somewhat
surprising, since the previous increase from 15 ½ to 16 inches caused a lot of
industry ire, and plenty of people from the for-hire fleet seemed opposed to
the new increase when it had first been proposed.
But then, as the meeting went on, a speaker from the
audience cast a little more light on the issue.
I’m not sure whether he was a commercial fisherman, or belonged
to the for-hire fleet, although his comments suggested the latter. He came up to the dais and told the Council that the recreational fishing industry would always prefer seeing
the size limit go up a half-inch, rather than losing any days of the season,
because on a boat where no one is watching, or on a party boat, fishermen
aren’t going to pay attention to that extra half-inch anyway.
In other words, he supported changing the regulations to increase
the size limit because, in the world as he viewed it, such increase didn’t
represent any real change at all, because people would merely ignore it.
The Advisory Council, which is overwhelmingly composed of
folks in the recreational and commercial fishing industries, recommended that
New York adopt the 16 ½-inch size limit in a nearly unanimous vote.
While the Department of Environmental Conservation isn’t
compelled to accept the Council’s advice, such a lopsided vote will be nearly
impossible to ignore, even if everyone recognizes that compliance with the new
limit may be dismayingly low. Because of industry dominance of the Advisory Council, there was never much
doubt about how the vote—and almost certainly the regulations—would turn out,
despite the compliance questions that such regulations raise
That’s true even though New
York’s Environmental Conservation Law gives the DEC quite a bit of latitude to
adopt management measures that are contrary to Advisory Council advice. Section 13-010 5(c)(3) of that law only requires
that
“In making the final decision on such regulations, the department
shall be guided by the recommendations of the marine resources advisory council
and, consistent with the marine fisheries conservation and management policy
set forth in subdivision one of this section and the requirements of
subparagraph three of paragraph (b) of subdivision one of this section, shall
endeavor to incorporate such recommendations in the final rulemaking. The department’s assessment of public comment
published in the state register shall set forth the council’s recommendations
and an explanation of the department’s final decision in regard to such
recommendations and the requirements of this section.”
There have been multiple occasions when the agency has not
followed the Advisory Council’s recommendations, when it determined that it
would not be prudent to do so, although that probably won't be the case with 2023 black sea bass rules.
Otherwise, the agency’s role is limited to approving a fishery
management plan drafted by a regional fishery management council, disapproving
such plan, or approving such plan in part while also disapproving one or more
of its provisions.
As the regional fishery management councils are also
dominated by representatives of the commercial and recreational fishing
industries, industry concerns typically drive fishery management
decisions. While the provisions of
Magnuson-Stevens, which require fishery management plans to prevent
overfishing, rebuild overfished stocks within a time certain, and base
management decisions on the best available scientific information, the regional
fishery management councils have demonstrated real creativity in finding ways around
the statutory requirements.
The New England Fishery Management Council, which for many
years eschewed annual commercial quotas in favor of input controls such as limitations on
days at sea, permitted cod and other northeastern groundfish to be overfished
for many years, until a 2006
amendment to Magnuson-Stevens, largely inspired by the New England Council’s
failures, required annual catch limits for all managed stocks.
Even so, Magnuson-Stevens provides at least some limits on
council members’ discretion. The same
can’t be said for the Atlantic States Marine Fisheries Commission’s various
management boards, which don't need comply with any legally-enforceable standards
governing management actions.
Because such management boards may exercise unbridled
discretion when adopting management measures, they have a history of questionable
decisions. In
2014, the ASMFC’s Atlantic Striped Bass Management Board failed to comply with
a provision of its own management plan, which required it to initiate a 10-year
rebuilding plan after a benchmark stock assessment found that fishing mortality
was well above its target, and spawning stock biomass below its target,
tripping a management trigger.
While it would probably wrong to argue that such decision
led to the striped bass stock becoming overfished—a
later assessment revealed that it was probably already overfished at the time—it’s
difficult to argue that the failure to initiate the rebuilding plan didn’t lead
to a further decline in the stock, leading to a more difficult rebuilding
process.
At the same time, the ASMFC management boards have also made
their share of good decisions; Amendment
7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, adopted last May, is a case in point.
The problem is that, because the ASMFC is not governed by
any legally-enforceable standards, the quality of its decisions can vary
depending on factors that might include sympathy for the regulated fishermen
(no one wants to put people out of work, even if a collapsing stock might do
the same thing), a fear of adopting measures that might be more restrictive
than necessary (although the possibility that rules might be inadequately restrictive
doesn’t seem to raise similar concerns), and a sense of interstate comity that
can, at times, stay managers’ hands when action is needed, or lead to actions
being taken even though they may not be in the best long-term interests of either
the fish or the fishery.
The biggest determinant of management board actions tends to
be the composition of the board itself, and the philosophy that each board
member brings to the table. We have seen
board members who live in the past and reject scientific advice, and we have
seen board members who work very hard to convince their colleagues to adopt
conservative, science-based measures. Some
steadfastly look out for their own industry’s interests, while others take a
more expansive view. A change in only a
handful of members can have a disproportionately large impact on board
decisions.
Yet, whether talking about management at the state level, at
regional fishery management councils, or at the ASMFC, the question
remains: Why shouldn’t marine fish be
managed by professionals, more likely to base their decisions on the best
available science and the health of fish stocks, rather than by fishermen and members
of the fishing industry, who will inevitably be placed in positions where they
will have to choose between the public’s interests and their own?
Why shouldn’t fishermen and the fishing industry be limited
to advisory roles, where their concerns and experience can inform, but not
dictate, management decisions?
In some ways, such questions are academic, for laws at both
the federal and state levels have been in place for so long, and are so well
established, that there is no realistic chance that the current system will be
abandoned for one more closely resembling that used to manage other living natural
resources.
At the same time, it is not impossible to hope that NMFS
will place more people on regional fishery management councils who, if not
disinterested, will still represent a more diverse array of interests than the
industry members who currently dominate such panels. It is not an impossible hope that states will
make a better effort to appoint people who do not have vested economic interests
in the fisheries that they help to manage to both state panels and to the
ASMFC.
If that is not done, private interests will continue to dominate the management process, as they dominate the
process today.
And the public interest will suffer.
Spot on. In North Carolina, currently six of the nine commissioners on the NC Marine Fisheries Commission, the regulatory body responsible for setting fisheries policy management in NC, have a direct financial interest in the outcome of their decisions on how a fishery should be managed. Hard to expect the results to be in the best interests of the resource.
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