COURT REJECTS CHALLENGE TO MID-ATLANTIC RECREATIONALMANAGEMENT MEASURES

 

On September 5, the United States District Court for the District of Columbia issued a decision upholding the use of the so-called “Percent Change Approach” to manage summer flounder, scup, black sea bass and, eventually, bluefish.  The decision was a victory for supporters of “alternative” approaches to recreational fisheries management, that would allow anglers to regularly exceed hard-poundage catch limits, and a rebuke to conservation advocates who believed in the disciplined management approach that has arguably made the Magnuson-Stevens Fishery Conservation and Management Act the most successful fishery conservation and management law in the world.

I freely admit to being a member of the latter group; in fact, when I learned that the Natural Resources Defense Council was planning to initiate the lawsuit, I agreed to let them list me as a member and as an injured party in order to assure that they had standing to bring the action.  I was particularly aggrieved by what I saw as the Mid-Atlantic Fishery Management Council’s and the National Marine Fisheries Service’s lax management of the black sea bass resource; while black sea bass biomass remains very high and the fish are extremely abundant, over the last decade or so I have been observing a steady decline in the size of the sea bass available to fishermen, an indication that the older and larger fish may be being removed from the population more quickly than before, and a possible precursor to future problems.

In the 10 years between 2014 and 2023, the Mid-Atlantic Council only managed to keep recreational landings at or below the recreational annual catch limit once, in 2019, when such landings were 14 percent below the ACL.  In the other nine years, recreational landings ranged from one percent to 96 percent above such limit, and exceeded the limit by more than 20 percent in seven of the nine years.

Part of the problem was that the black sea bass population was expanding, and so attracting more and more angling effort.  Part of the problem was that the Council never really tried to constrain landings; it knew that there was significant uncertainty in the recreational catch, landings, and effort data, which translated into significant management uncertainty when setting the annual management measures, yet it ignored NMFS’ guidelines which state that

“[Annual Catch Targets], or the functional equivalent, are recommended in the system of [Accountability Measures] so that [the Annual Catch Limit] is not exceeded.  An [Annual Catch Target] is an amount of annual catch of a stock or stock complex that is the management target of the fishery, and accounts for the management uncertainty in controlling the catch at or below the [Annual Catch Limit]…”

Instead of recognizing the substantial management uncertainty that existed in the recreational black sea bass fishery, and setting an annual catch target to account for it, the Council proceeded as if there was no uncertainty at all, setting the Recreational Harvest Limit equal to the sector Annual Catch Limit minus the estimated release mortality.  The result was a chronic pattern of recreational landings exceeding the Recreational Harvest Limit, which led to recreational management measures being constantly tightened at a time when the black sea bass biomass seemed to be steadily increasing. 

The recreational fishing industry constantly hammered the Council and NMFS for steadily tightening restrictions in the face of growing abundance, and the Council and NMFS eventually grew weary of the incessant criticism.  By 2019, they effectively stopped trying to control recreational overages, unless action was clearly required by law, and even then they were heavily criticized.  

At about the same time, the Council began work on a new management approach intended to

“Allow for more regulatory stability and flexibility in the recreational management programs for summer flounder, scup, black sea bass, and bluefish by revisiting the current annual timeframe for evaluating fishery performance and setting recreational specifications to a new multi-year process.”

A memo describing the possible new approach noted

“In recent years, status quo recreational measures despite projected harvest exceeding the recreational harvest limit (RHL) have been justified on an ad hoc basis.  The steering committee is exploring the development of pre-determined guidelines that could be followed to determine if measures could remain status quo in the future.  [emphasis added].”

Thus, the Council’s priority shifted from preventing overfishing and ensuring the long-term sustainability of fish stocks to preventing disruptions to the recreational fishing industry, even if that meant that Annual Catch Limits might be exceeded, and that overfishing might occur from time to time.  

The result was Framework 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and Framework 6 to the Bluefish Fishery Management Plan, which completely changed the way those four species are managed, replacing efforts to constrain recreational landings to a Recreational Harvest Limit with the so-called “Precent Change Approach,” a matrix that mandated the adoption of pre-determined management actions depending on both the status of the stock and a calculation of whether recreational landings, if management measures were unchanged in upcoming years, would be likely exceed, approximate, or fall below such Recreational Harvest Limit.

The new approach introduced some worthwhile innovations. 

It provided that management measures would be adopted for two-year intervals which coincided with biennial stock assessments, so that any changes in management would be based on the most recent relevant science.  And it introduced something called a “recreational demand model,” which predicted how anglers were likely to respond to changes in regulations, and didn’t merely assume that angler behavior would remain constant from year to year.

However, particularly in the case of very abundant fish stocks, the Percent Change Approach allowed recreational landings to exceed not only the Recreational Harvest Limit, but also the sector Annual Catch Limit, and set up situations where the combined commercial and recreational landings permitted by the annual fishery specifications could exceed not only the overall Annual Catch Limit, but also the Acceptable Biological Catch established by the Council’s Scientific and Statistical Committee, and perhaps lead to overfishing.

That seemed to be a step too far, which violated a section of Magnuson-Stevens which provides that each regional fishery management council, including the Mid-Atlantic, must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations if its scientific and statistical committee.”

On April 10, 2023, the Natural Resources Defense Council filed its complaint in Natural Resources Defense Council v. Raimondo, in which it challenged the validity of Framework 17 and alleged, among other things, that

“Instead of the recreational ACL, the harvest target is used as the constraining factor for setting recreational management measures.  This harvest target may be above the recreational ACL, sometimes by a significant amount, depending on circumstances in the fishery.  Furthermore, Framework 17 contains no other safeguards to constrain recreational catch to the recreational [Annual Catch Limit.]

“Framework 17 additionally contains no safeguard against exceeding the overall [Annual Catch Limit] for the fisheries.  Because the specifications fully allocate the available catch for each stock between the commercial and recreational sectors, NMFS’ approval of an overage of the recreational sector’s ACL pursuant to Framework 17 amounts to approval of an overage for that stock’s total ACL, risking exceedances of other specifications (such as [Acceptable Biological Catch] and [Overfishing Limit]) as well…

“The function and effect of Framework 17 are to remove the [Annual Catch Limit] as an actual constraint on management decisions in these recreational fisheries.  The Council and NMFS published a final environmental assessment in November 2022, which acknowledged that Framework 17’s percent change approach would ‘allow for some level of [Recreational Harvest Limit] overages in some circumstances,’ which ‘carry a risk of [Annual Catch Limit] overages, which in turn risk [Acceptable Biological Catch] and [Overfishing Limit] overages and therefore risk resulting in overfishing.  Therefore, [Framework 17] cannot be demonstrated to proactively prevent overfishing every year in all circumstances.  The [Recreational Harvest Limit] accounts for the best available scientific information on stock status.  Therefore, even at high biomass levels, [Recreational Harvest Limit] overages can result in overfishing…’  The environmental assessment further acknowledged that when [Recreational Harvest Limit] overages occur, the Framework 17 approach, ‘is expected to have negative impacts on the stock status of summer flounder, scup, and black sea bass.’  [paragraph numbering omitted]”

It seemed like a convincing argument, but challenging an agency action is always a difficult proceeding, with the court giving substantial deference to the agency’s findings of fact and policy positions.  I hoped that the Natural Resources Defense Council’s arguments would prevail, and believed that they should, but after the oral arguments were made, time began to drag out, with no movement from the Court.

Since it would have been relatively easy to draft an opinion that supported the plaintiff’s arguments, relying on little more than the plain language of Magnuson-Stevens, the more time that passed after the arguments were made, the more I began to fear that the Court was drafting an opinion that tried to get around what seemed to be the clear language of the statute, and instead interpreted the law in a way that favored the agency and Framework 17.

And, as we now know, that is precisely what happened.

Some of the Court's reasoning arose out of the fact that, although Magnuson-Stevens said that regional fishery management councils had to develop “annual catch limits,” it never offers a definition of that term, nor did it state how such annual catch limits must function.  The Court, looking at that failure, came to the somewhat surprising conclusion that an “annual catch limit” wasn’t really a “limit” at all, at least as that word is generally understood.

The only definition of “annual catch limit” is found in NMFS’ guidelines—the same guidelines that both NMFS and the Council ignored when they failed to establish a buffer accounting for management uncertainty when they set previous black sea bass specifications—and it states that an ACL is

“a limit on the total annual catch of a stock or stock complex…that serves as the basis for invoking [Accountability Measures].”

Nothing in the statute or the guidelines explicitly states that recreational management measures must keep catch below the Annual Catch Limit.

Thus, the Court noted that the Council was acting in accordance with the law, as it still sets an Annual Catch Limit, along with an Overfishing Limit and Acceptable Biological Catch.  However,

“The [Harvest Control Rule in Framework 17] simply adds consideration of a new value, calculated independently of the Specifications Framework, called the ‘recreational harvest target’ (“RHT”).  Whereas, under the status quo approach, recreational management measures were calibrated to result in an estimated recreational harvest at or below the ‘recreational harvest limit’ (“RHL”), the [Harvest Control Rule] sets management measures to target an estimated recreational harvest at or below the ‘recreational harvest target’ (or RHT).”

The fact that such Recreational Harvest Target might be higher than the Annual Catch Limit didn’t concern the Court at all, although its reasoning is a little difficult to follow.  The decision concedes that

“plaintiff initially argues that management measures need only ‘manage’ to the [Annual Catch Limit], which is an uncontroversial position.  [citation omitted, emphasis added]”

But it then goes on to say that

“Plaintiff, however, then criticizes the [Harvest Control Rule] for ‘severing’ the development of recreational management measures from and ‘ignor[ing]’ the [Annual Catch Limit] in violation of the MSA.  The [Harvest Control Rule], however, does no such thing.  Accountability measures, or AMs, are still triggered only when the ACL is exceeded, and the lynchpin in the decision is the decision whether to liberalize or restrict management measures remains the recreational harvest limit, or RHL…The [Harvest Control Rule] merely introduces the RHT, an additional reference point that has newly accounted for data uncertainty and a stock’s biomass, in an effort to temper the degree of change in management measures from year-to-year—not to prevent a change in expected harvest in the direction of the RHL.  [citations omitted]”

Thus, the Court seems to be saying that if catch exceeds the Annual Catch Limit, Accountability Measures will still be imposed, but nothing stops the Council or NMFS from setting a Recreational Harvest Target that exceeds the Annual Catch Limit and triggers Accountability Measures—even though the very nature of AMs is to penalize a sector that lands too many fish, and that triggering AMs ought to be avoided.

In rejecting the plaintiff’s arguments, the Court goes on to say that

“Plaintiff’s principal argument is that the MSA’s Section 1853 means what it says:  providing for ‘annual catch limits’ means setting ‘caps not to be exceeded.’  By focusing primarily on the definition of ‘annual catch limit,’ plaintiff ignores that the question in dispute concerns not the ACL itself, but the means that NMFS and the Mid-Atlantic Council must adopt to achieve the ACL; specifically, whether recreational management measures must be calibrated exclusively to the ACL.  The three words ‘annual catch limits’ do not answer the question.  [citation omitted]”

 At that point, the Court writes that Magnuson-Stevens requires a fishery management plan to “establish a mechanism for specifying annual catch limits…at a level that overfishing does not occur,” then correctly states that, in the case of the species affected by Framework 17, such mechanism exists.  But it next elevates form over substance, making the remarkable statement that so long as the mechanism for specifying annual catch limits exists, the Council and NMFS have satisfied the requirements of Magnuson-Stevens, regardless of the relationship between the ACL and the recreational management measures.

Instead, the Court referenced National Standard 1, which requires 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,”

and argues that while the ACL is relevant to preventing overfishing, other considerations may bear on the adequacy of management measures.  Once again, it makes an effort to set the Recreational Harvest Target outside of the ACL framework, stating

“First, as explained, recreational management measures do not have to be calibrated exclusively to the ACL, or the corollary [Recreational Harvest Limit].  Second, the [Recreational Harvest Target] is used to determine management measures—not as a substitute for the RHL, which is a limit on the year’s catch.  The [Harvest Control Rule] still looks to the RHL whether and to what extent management measures need to be liberalized or restricted, the HCR merely imposes limits to cap the percent change from year-to-year, resulting in the [Recreational Harvest Target], which reflects an effort to make more methodological and iterative the process of reaching the RHL.  Importantly, when the [Recreational Harvest Target] is exceeded, nothing happens, given the RHT is simply an estimated harvest, used to develop management measures.  In contrast, when the RHL is exceeded, the HCR imposes consequences, and when a year’s recreational harvest is greater than the recreational ACL, recreational [Accountability Measures] are triggered.”

So what the Court seems to be saying is that there are consequences for exceeding a Recreational Harvest Limit or Annual Catch Limit, but despite that, it is perfectly fine for Framework 17 to establish a Recreational Harvest Target above either of those values, and use such RHT to set management measures that are likely to lead to landings so high that such consequences will be imposed.

That might not seem consistent with a rational management system, but it is now, nonetheless, the law.  Perhaps understanding the seeming inconsistency, the Court then wrote,

“Having established that the MSA does not require the ACL to be the exclusive target of management measures, review of what the MSA requires of management measures is helpful to avoid any implication that management measures may be set willy-nilly.”

Because the Court’s analysis up to that point could easily give that impression.

The Court shifted its focus from Annual Catch Limits to National Standard 1, and particularly on its requirement that management measures achieve optimum yield, which Magnuson-Stevens defines as

“the amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor; and in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield from such fishery.  [formatting omitted]”

The Court stated that

“[optimum yield] must be achieved ‘on a continuing basis’ and a stock is not deemed overfished unless its fishing mortality rate risks the species capacity ‘to produce the [maximum sustainable yield] on a continuing basis.’  Read together, these provisions indicate that the setting of management measures should consider sustainability and longevity, as well as results.  The [Harvest Control Rule] attempts to strike this balance, by eliminating extreme fluctuations in management measures and adopting an incremental approach in conforming harvest to the RHL, which remains the goal of the [Harvest Control Rule].”

It then builds on that argument by stating, in the case of a stock with a very high biomass,

“When the RHL is equal to the estimated harvest, the [Harvest Control Rule] recommends a 10 percent liberalization, and when the RHL is less than the estimated harvest, the [Harvest Control Rule] recommends a 10-percent reduction.  In these two circumstances, the [Harvest Control Rule] could set management measures that, alone, result in a harvest that is greater than the RHL,  In permitting such outcome, however, the [Harvest Control Rule] heeds [National Standard 1’s] guidance that preventing overfishing must be balanced with achieving [Optimum Yield] on a continuing basis and decides that, for species in more abundance, the balance is best struck as such…

“NMFS struck a different balance under the status quo approach—one that tilted more in favor of preventing overfishing, but with less regard for producing [Optimum Yield] on a continuing basis, even for fish with very high biomass…”

Such language implies that, at least in the case of a very abundant stock, it is permissible to increase the likelihood of overfishing occurring, in order to also increase the likelihood that Optimum Yield will be attained.  Arguably, it condones the adoption of management measures likely to lead to a temporary fishing mortality rate higher than that which would produce maximum sustainable yield, provided that such rate did not continue for so long that it threatened the stock’s ability to produce maximum sustainable yield “on a continuing basis.”

Such an interpretation would significantly weaken Magnuson-Stevens’ conservation mandates.

Thus, the Court’s decision in Natural Resources Defense Council v. Raimondo can be seen as a step backward with regard to sustainable fisheries management.  Yet, not surprisingly, it is being hailed by the recreational fishing industry, which undoubtedly believes that it will open the door to a better business environment.  In a press release dated September 25, 2024, the American Sportfishing Association, the primary trade organization of the recreational fishing industry, which also intervened as a defendant in the action, expressed its approval of the decision, saying

“…The overall goal of the Percent Change Approach is to provide more stability for the recreational sector by iteratively adjusting management measures to achieve the Recreational Harvest Limit, while minimizing potential overreaction (overcorrection) to annual variability in the harvest estimates.

“’This ruling reinforces the progress made in developing alternative recreational fisheries management that still adheres to the conservation ethic of the MSA and highlights the significance of innovative strategies like Framework 17,’ said Mike Waine, ASA’s Atlantic Fisheries Policy Director.  ‘Such measures are essential for addressing inherent imprecision in recreational fisheries data, providing predictability for anglers, and supporting a robust recreational fisheries sector.”

It’s probably important to note that maintaining healthy and sustainable fish stocks was not one of the benefits listed in Waine’s statement.

But that’s to be expected.  The decision in Natural Resources Defense Council v. Raimondo represents an important win for the angling industry and the “anglers’ rights” organizations that have long been trying to undermine Magnuson-Stevens in order to put more dead fish on the dock and more profits in industry coffers.

We will undoubtedly see more “innovative strategies” and “alternative recreational fisheries management” measures proposed and, most likely, adopted in regional fishery management councils on every coast as, emboldened by the recent court decision, council members seek ways for anglers to evade all or part of their conservation duties, and further undercut effective fisheries conservation measures.

And, given the decision in Natural Resources Defense Council v. Raimondo, such efforts will most likely succeed.