UNLESS IT PUTS MORE DEAD FISH ON THE DOCK, NMFS DATA IS FATALLY FLAWED

Many recreational fishermen, and many members of the recreational fishing industry, are very quick to criticize catch, landings, and effort data produced by the National Marine Fisheries Service’s Marine Recreational Information Program.  The criticism always follows the same basic path:  MRIP data is wrong, anglers aren’t catching as many fish as NMFS says, and so recreational management measures are more restrictive than they really need to be.

The fact that NMFS discovered, last August, that the Fishing Effort Survey underpinning such data might be inflating effort, and so catch and landings estimates, by as much as 30 or 40 percent only added fuel to the flames.

Yet, as I have noted in the past, MRIP data isn’t always disdained by its recreational critics.  On those occasions when it finds recreational landings to have been lower than expected, and leads to more relaxed regulations, the same people and organizations that might have damned it in the past embrace MRIP findings without and qualms or concerns that the data might be underestimating the number of fish removed from the ocean.

Yet error cuts both ways, and the uncertainty surrounding recreational data makes it just as likely that an estimate understates, rather than overstates, angling’s impact on a fish stock.

MRIP estimates are also incorporated into stock assessments, where a high level of landings often imply a larger population, since a smaller stock could not support such removals without falling into decline.  Thus, here in the northeast, we have seen members of the recreational fishing community condemn MRIP data that leads to more restrictive black sea bass regulations while, in the same breath, arguing that the black sea bass stock assessment, which includes the same MRIP data, found that the spawning stock biomass stood at 240 percent of its target level, and justifies more liberal management measures.

It seems like Schrödinger’s cat, which might be both dead and alive at the same time, its state depending on when an observer makes their observation, MRIP estimates may simultaneously represent the best available data or be fatally flawed, depending on whether they provide more fish to, or take fish away from, the recreational sector.

One of the more outrageous examples of such behavior is now playing out in the Gulf of Mexico, where one anglers’ rights group, the Coastal Conservation Association, is both praising NMFS’ use of the Fishing Effort Survey to increase the recreational allocation of Gulf red grouper and condemning NMFS’ use of the very same survey to constrain anglers’ red snapper landings.

The timeline goes something like this:

On May 2, 2022, NMFS adopted Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which changed the allocation of Gulf of Mexico red grouper from 76 percent commercial/24 percent recreational to 59.3 percent commercial/40.7 percent recreational.  The basis for such reallocation was data derived from NMFS’ Fishing Effort Survey, which led managers to conclude that the original allocation resulted from an underestimate of recreational red grouper landings between 1986 and 2005, the base years used to determine the proportion of landings attributable to each sector.  When the base year data was reanalyzed using the Fishing Effort Survey methodology, it appeared that anglers had caught far more red grouper than originally thought.

The Amendment 53 reallocation, then, was less a true reallocation than it was a correction, which merely adjusted the sector allocations to what they should have been all along, if accurate data had been available when the allocation was first set.

Still, the allocation was controversial, with four members of the Gulf Council filing a minority report which argued that its adoption violated two provisions of the Magnuson-Stevens Fishery Conservation and Management Act, including National Standard 4, which deals with the fair allocation of fishery resources, and National Standard 9, which requires that bycatch in fisheries be prevented “to the extent practicable.”

Similar, related arguments were made by stakeholders during the comment period that preceded Amendment 53’s adoption, but they were rejected by NMFS, which argued that the Fishing Effort Survey represented the best available scientific information, and provided adequate grounds for changing the sectors’ allocations.  Most of the Gulf’s red grouper are caught off the Florida coast, and the Gulf Council had the opportunity to include catch and landings estimates from Florida’s Gulf Reef Fish Survey, which were far lower than those produced by MRIP, in its calculation of the new allocation.  However, it chose not to do so, as such data was not included in the most recent stock assessment.  Texas and Louisiana also have state recreational data programs which collect information on red grouper landings, which information was also not used to calculate the new allocation.

A group of commercial fishermen sued NMFS, seeking judicial review of Amendment 53.  They lost at the trial court level, but have since appealed that decision to the United States Court of Appeals for the District of Columbia Circuit, which has a lot of experience reviewing federal regulations. 

Although the Secretary of Commerce, the National Oceanographic and Atmospheric Administration, and NMFS were the only named defendants-appelees in the suit, the Coastal Conservation Association petitioned the court, successfully seeking permission to intervene as an additional appellee.  In its appellate brief, filed in May 2023, the CCA noted that

“The Fishing Effort Survey underwent ‘rigorous peer review’ and was certified as a ‘scientifically sound and suitable replacement’ for the [survey used to set the original 78 percent commercial/24 percent recreational allocation].”

 It went onto argue that

“Alternative 3 [of the draft Amendment 53, which supported the 59.3 percent commercial/40.7 percent recreational allocation] was deemed an appropriate allocation because it uses and reflects ‘the best scientific information available’ and ‘best reflects the landings from each sector from 1986-2005.’  Alternative 3 updates the historical data based on the best available evidence of what was actually caught…  [emphasis added, footnote omitted]”

It's important to note that CCA argued that the Fishing Effort Survey was “the best available evidence of what was actually caught,” even though state survey data was apparently available, at least for the states of Louisiana, Texas and, most importantly, Florida, where the lion’s share of the red grouper are caught.

It’s probably also important to note that Amendment 53 includes a table of data from both the Fishing Effort Survey and from Florida’s Gulf Reef Fish Survey for the years 2016 through 2019, and that such data indicates that, according to the former survey, the recreational catch of red grouper varied between 1,377,751 and 3,273,809 pounds during those years, while the latter survey records landings for the same years that range between 497,239 and 907,291 pounds—a far smaller amount.  Yet CCA is adamant that the Fishing Effort Survey data remains “the best available evidence.”

And that’s probably not surprising, given that using the Fishing Effort Survey data would yield a much higher recreational allocation.

But when it comes to the Fishing Effort Survey’s role in estimating Gulf red snapper landings, which results in recreational snapper landings being constrained, CCA suddenly begins singing a much different tune.

CCA’s Texas chapter posted a piece on its website that quoted Ted Venker, CCA’s so-called “conservation director,” who said

“Yet another major revision to the federal data collection system is upon us, and it should bring a realization that NOAA is just not capable of doing this job.  At best we are looking at several more years of questionable revisions, recalculations, and recalibrations based on a suspect data system that has never proven it can produce accurate information.  This is no way to manage a public resource.  It would be irresponsible to continue down this road rather than exploring and supporting state-based options to better manage the recreational sector wherever feasible.  [emphasis added]”

Thus, over the course of just a few months, we see the CCA arguing in its legal brief that the Fishing Effort Survey data represents “the best available evidence of what was actually caught,” while arguing on a chapter web page that other recreational data was generated by “a suspect data system that has never proven that it can produce accurate information.”

Those aren’t easy positions to reconcile.  It would seem that one would have to be knowingly false.

As early as September 2020, three years before NMFS discovered that the Fishing Effort Survey was  probably overstating the number of trips taken by recreational fishermen, Venker was already calling the federal landings data “flawed,” even though CCA claimed that MRIP data represented the “best available evidence” of recreational catch at the time it filed the brief in the red grouper lawsuit.

Another official CCA statement, published on the website of its Alabama chapter in February 2021, stated that

“managers and anglers alike lost faith in NOAA’s Marine Recreational Information Program (MRIP),”

a statement that is completely inconsistent with CCA’s unqualified support for MRIP in the brief that it filed in the red grouper matter.  Furthering the inconsistency, in the same piece Venker argued that

“As long as NOAA insists on tying future management to a history of mistakes and bad data in [the red snapper] fishery,”

even though CCA certainly encouraged the court to support NMFS’ decision to tie the red grouper allocation—which would grant anglers a greater share of red grouper landings—to the same “history of mistakes and bad data” that it condemns when applied to red snapper.

One of the interesting artifacts of CCA’s anti-MRIP ravings, and its recent harping on NMFS’ announcement that the Fishing Effort Survey might have overestimated angler effort by 30 to 40 percent is that, if you assume that recreational landings really have been overstated by 30 to 40 percent and reduce the estimates of recreational landings underlying the new red grouper allocation accordingly, the current 40.7 percent recreational allocation, that resulted from the use of “flawed” estimates produced by a “suspect data system,” is reduced to somewhere between 24.4 and 28.5 percent of overall landings, a figure not all that different from the pre-Amendment 53 allocation.

In all honesty, I have no idea what recreational red grouper landings really were in the years between 1986 and 2005.  I don’t know whether the commercial/recreational split, based upon those landings, ought to be 76/24, 59.3/40.7, something in-between, or something completely outside of that range.

I don’t know how many red snapper were recreationally landed in the Gulf of Mexico, whether we’re talking about last year or in any year since the recreational fishery began.

And while I believe that NMFS’ Fishing Effort Survey overstated the number of trips taken by anglers, and caused MRIP to overstate catch and landings, neither I, NMFS, nor anyone else knows with any sort of certainty whether the initial indications that landings were overstated by 30 to 40 percent extend across all species, all states, and all fisheries, or whether the actual extent of the error varies from place to place and from species to species.

But what I do know is that there are far too many members of the angling community who speak from both sides of their mouths, eager to condemn federal fisheries data and the management program that it informs when management measures grow more restrictive, while willing and eager to endorse the same management program when it lets them pile more dead fish on the dock.

In the end, even in this cynical age, things like credibility and integrity still matter.  Sadly, as the fight over fisheries data shows time and again, those are the two things that many engaged in that fight lost a long time ago.