STRIPED BASS ASSESSMENT UPDATE: SOME ADVICE, BUT SUBSTANTIAL UNCERTAINTY

 

The 2024 update to the 2018 benchmark striped bass stock assessment has been released.  It offers some guidance on the status and trajectory of the striped bass stock, but is clouded with substantial, if unavoidable, uncertainty.

The clear guidance is presented in the Executive Summary, which states, in part:

“…Total removals from 2022-2023 averaged 6.18 million fish, a 20% increase from 2021, the terminal year of the last assessment.  From 2022-2023, recreational release mortality made up 40% of total removals, with recreational harvest making up 49%, commercial harvest making up 10%, and commercial discards making up 0.5% of the total.  This is a change from 2018-2021, where recreational release mortality made up 50% of total removals and recreational harvest accounted for 37%...

“Because the recruitment trigger in Amendment 7 was tripped based on 2021-2023 data for the New Jersey, Maryland, and Virginia abundance indices, the biological reference points were calculated using the low recruitment regime assumption.  This resulted in a lower F target and F threshold compared to the benchmark assessment.

“In 2023, the Atlantic striped bass stock was overfished.  Fishing mortality was above the F target, but below the F threshold, indicating overfishing was not occurring…Total fishing mortality in 2023 was estimated at 0.18 which is below the updated F threshold of 0.21 per year, but above the updated F target of 0.17 per year.  Although the stock is not experiencing overfishing, these results trip the F target trigger in Amendment 7 since F has exceeded the F target for two consecutive years while [Spawning Stock Biomass] is below the SSB target…

“Projections were run to determine the probability of SSB being at or above the SSB target by 2029, the rebuilding deadline.  If F is reduced to the F target by 2025, and F target is maintained through 2029, there is less than a 5% chance that the stock will be rebuilt by 2029.  [emphasis added]”

So a few things are clear.

With the movement of the 2015s into the slot limit, anglers are taking home more striped bass, and recreational harvest, rather than release mortality, is now the predominant cause of fishing mortality.  In fact, over the past two years, the impact of the two sources of mortality have switched places since the last stock assessment update.  

Recreational release mortality’s contribution to overall fishing mortality has fallen from 50 percent in the 2022 update to 40 percent in the most recent document, while recreational harvest’s contribution has increased from 37 percent in the earlier update to 49 percent in recent years.  

Given such changes in the impact of the two major contributors to fishing mortality, it will be interesting to see whether the Atlantic Striped Bass Management Board’s focus on reducing fishing mortality, as opposed to reducing all sources of striped bass fishing mortality, will abate to any degree.

The various indicators used to gauge the health of the striped bass stock are all pointed in the wrong direction.  The stock remains overfished.  The recruitment trigger, newly added to the management plan by Amendment 7, has been tripped not just by three consecutive years of unusually poor recruitment in a single key region, but by such extremely sub-par recruitment in three of the four major spawning areas. 

And while the striped bass stock is not experiencing overfishing, fishing mortality has risen high enough, for a long enough time, to trip another management trigger, which requires the Management Board to reduce fishing mortality to the target level within one year.

Given that fishing mortality is only marginally above the fishing mortality target, that should be easy to do.  However, even if the Management Board puts such reduction in place, there is no realistic chance that fishing at the target fishing mortality rate will rebuild the stock by the 2029 deadline.  

Further action is needed.

But just what that further action might be isn’t clear.  That’s where the uncertainty comes in.

“The F rate necessary to have a 50% chance of being above the SSB target by 2029 (F_rebuild) depends on the extent of the reductions realized by Addendum II, implemented in 2024.  The [Technical Committee] initially predicted that Add. II measures would result in a 13.7% reduction in total removals relative to 2022, equivalent to 5.86 million fish…In this scenario, F in 2024 is estimated to be 0.20, while F_rebuild=0.11 for 2025 onward.  To achieve F_rebuild in 2025, total removals would have to be reduced to 3.46 million fish, a 46% reduction from the predicted removals in 2024.  However, the preliminary MRIP numbers for 2024 Waves 2-3 are 36% lower than the Waves 2-3 numbers for 2023.  Expanding the preliminary 2024 Waves 2-3 estimates to the full year, based on the proportion of total landings that occurred in those waves in earlier years, and accounting for a 7% decrease in commercial removals relative to 2023 due to the quota reduction, resulted in total removals of 3.89 million fish in 2024.  In this scenario, F in 2024 is estimated to be 0.13, and fishing at this rate each year through 2029 would result in a 50% probability of being above the SSB target in 2029.  In order to maintain this F rate in 2025, a 4% reduction from estimated 2024 removals would be needed.  The [Technical Committee] considers the low 2024 removals scenario based on preliminary MRIP numbers to be more likely than the high 2024 removals scenario.

“However, in 2025, the above-average 2018 year-class will be age-7, the same age the strong 2015 year-class was in 2022, and just entering the 28-31” slot in the ocean fishery.  When the 2015 year-class entered the ocean slot, total removals increased by 32% from 2001 to 2002, and F in 2022 was 39% higher than 2021…F in 2023 under the Emergency Action slot limit was still 17% higher than in 2021.  If F in 2025 increases by the same percentage seen in 2022 or 2023 and remains there, the probability of rebuilding under that F rate is well under 50%.  Historically, an increase in F due to a strong year-class recruiting to the fishery has been followed by a decrease in subsequent years, although the rate of change has been variable.  If F increases only in 2025 and decreases to the level estimated for 2024 as the 2018 year-class moves out of the slot, the probability of rebuilding by 2029 is 43%.

“The level of removals in 2024, 2025, and subsequent years is a major source of uncertainty in these projections.  Although predicted removals for 2024 based on preliminary 2024 MRIP data for Waves 2-3 can support rebuilding by 2029, it is likely that removals will increase in 2025 and the Board should be prepared to respond to this eventuality.  [emphasis added]”

While the assessment update accounted for many sources of significant uncertainty based on hard data, there are additional sources of uncertainty that folks on the water have seen.  For example, one of the big contributors to Wave 2-3 striped bass effort, catch, and landings in recent years has been the spring fishery in Raritan Bay, which borders New York and New Jersey.  That fishery peaked in 2021, when New Jersey anglers caught slightly over 4 million bass during Wave 2.  The New Jersey catch fell to about 1.7 million bass in 2022 and 2023, then dropped again, to just a bit over 1 million bass in 2024.  That’s a 41% drop between 2023 and 2024, and given that New Jersey catch and landings dominate the ocean fishery during Wave 2, was undoubtedly a big contributor to the 36% drop in Wave 2-3 landings mentioned in the assessment update.

The Raritan Bay fishery is largely driven by the abundance of menhaden that typically aggregate there in the spring.  In the spring of 2024, those menhaden, for reasons unknown, were largely absent from Raritan Bay, but if they reappear in 2025, striped bass catch and landings could spike back toward 2022-2023 levels.

In addition, 2024 was a very atypical year in terms of weather.  The late spring—the time when a large body of bass migrates through New York and southern New England waters—was windy and wet, keeping boats off the water and also keeping water temperatures unusually low.  During late June and early July, a dense plankton bloom stretched the length of Long Island, dropping underwater visibility to just a few inches and negatively impacting fishing in the ocean.  And in September, traditionally a time when bass fishing begins to heat up again, incessant east winds, coupled with big swells from offshore storms, again chased boats off the water and severely impacted fishing effort.

Thus, the Technical Committee’s conclusion that “the low 2024 removals scenario based on preliminary MRIP numbers to be more likely than the high 2024 removals scenario” may well prove accurate, but 2024 removals may also prove anomalous, so much so that 2025 landings, propelled by more typical conditions on the water as well as the 2018 year class entering the coastal slot limit, could drive 2025 removals even higher than the assessment update suggests.

Thus, this may be one of those occasions when the Management Board would be well advised to follow the old advice to hope for the best and plan for the worst, the worst not necessarily being the 46% reduction indicated if 2024 landings were assumed to replicate those of 2023, but certainly something far less benign than the 4% reduction based on preliminary MRIP data for the first waves of this year.

At the least, it would probably be wise for the Management Board to assume that there is no better than a 40% probability that the stock will rebuild by 2029 under current management measures, based on both the 2025 fish entering the slot and the assumption that 2025 and subsequent years will see more favorable fishing conditions, and set new management measures accordingly.

Adding a bit of additional precaution to those assumptions certainly wouldn’t hurt, but might be a bit much to ask of the Management Board, which has never shown an institutional appreciation of the need for caution, and has on more than one occasion chosen the riskier road instead of the prudent course.

With the bass facing real problems, including an inevitable decline in the spawning stock once the five failed year classes reach spawning age, we can only hope that on this occasion, prudence will reign.

RECREATIONAL BYCATCH: IT'S REAL

 

Some words bring very clear pictures to mind.

In a fisheries context, the word ‘bycatch’ evokes images of industrial-scale commercial fisheries, where miles-long pelagic longlines take an unintended toll of sharks, billfish, and even marine mammals, while factory trawlers sweep the ocean floor with vast nets that scoop up anything that happens to lie, crawl, or swim in front of their gaping maws.

But one image that doesn’t immediately come to most people’s minds is that of a recreational fisherman, using nothing more than a single hook and line, threatening the health of a fish population by accidentally catching and killing too many members of an overfished stock.

Yet that scenario can occur, and it’s happening right now off the southeastern coast of the United States, where anglers targeting grouper and other reef fish are causing real, if unintended harm to the red snapper stock.

The South Atlantic stock of red snapper has been overfished for quite a long time. Stock assessments completed in 2009, 2010, 2017, and 2021 have all found the stock to be overfished and experiencing overfishing. The South Atlantic Fishery Management Council (Council) has put a rebuilding plan in place, and it appears that the stock is currently on track to rebuild by the 2044 rebuilding deadline. To achieve such rebuilding, the National Marine Fisheries Service (NMFS) established a 2024 annual catch limit (ACL) of 85,268 pounds for the commercial fishery, along with a commercial limit of just 75 pounds (gutted weight) of red snapper per trip, and a recreational ACL of 21,167 fish, paired with a recreational bag limit of one fish, of any size, per day.

To keep commercial landings within the commercial ACL, the National Marine Fisheries Service (NMFS) monitors such landings, and if they exceed, or appear likely to exceed, the commercial ACL, the commercial fishing season is closed for the rest of the year.

To keep recreational landings within the recreational ACL, NMFS establishes a recreational fishing season that it believes will be short enough to prevent an overage. In 2024, the recreational red snapper season in the South Atlantic region lasted for only one day.

However, seasons and ACLs only dictate when fishermen may keep red snapper; they have little impact on when red snapper can be incidentally caught and unintentionally killed. It is those incidentally killed red snapper, most of which are killed by the recreational fishery, that are making it particularly difficult for the Council and NMFS to rebuild the South Atlantic red snapper stock. As the Council has noted:

Since initial implementation of the rebuilding plan, red snapper fishing has been limited by few days of recreational harvest allowed annually and a low annual catch limit (ACL) for the commercial sector with a season beginning each year in July until the ACL is met. These measures, combined with growing effort in the South Atlantic snapper grouper fishery, particularly from the recreational sector, have led to a drastic increase in the number of red snapper that must be released after being caught. The increase in releases has, in turn, led to an increase in the number of fish that die after being caught and released, despite efforts from management and fishermen to improve survival after release through best practices and use of descending devices. The number of dead red snapper far outnumbers fish removed from the population by harvest.

Large numbers of releases limit managers’ ability to prevent overfishing and reduce the number of fish that can be landed by the fishery. Overfishing occurs when the number of total removals exceeds the overfishing limit. If more of these removals occur from fish dying after release, fewer fish may be landed.

It is thus in the best interests of both the red snapper and red snapper fishermen to reduce the number of fish that die after release, so that red snapper mortality may be reduced at the same time that red snapper landings might be increased. However, that is a far easier thing to describe than to achieve.

The Council tried to rein in recreational red snapper bycatch in 2022, when it initiated Regulatory Amendment 35. The Decision Document for such amendment spelled out the problem the Council was facing when it printed comments made by the Council’s Scientific and Statistical Committee (SSC), which observed that

To significantly reduce discard mortality, reducing encounters and effort is paramount. Long-term management strategies need to focus on these reductions in order to enable greater harvest to occur…

In the short-term (for this regulatory amendment), the SSC recommends pursuing temporal/spatial reductions (possibly wave-based) in bottom fishing. Seasonal differences among regions within the South Atlantic should be considered when developing these regulations, if possible. The bulk of recreational discards of red snapper are occurring off the East Coast of Florida; thus, spatial closures may be most effective in this area… [formatting omitted]

What the SSC was, in essence, suggesting was that the Council implement closed seasons and/or closed areas for all bottom fish, in order to reduce anglers’ out-of-season encounters with, and so their bycatch and release mortality of, South Atlantic red snapper. Anglers quickly rejected the idea. The Council reported that ‘much of the [Snapper Grouper Advisory Panel] was opposed to giving up access to other species to potentially increase ability to retain red snapper.’

The Snapper Grouper Advisory Panel (AP) itself provided a statement that read:

For Regulatory Amendment 35, the AP was asked to provide suggestions to further reduce red snapper interactions while fishing for other species. The AP was asked to consider punitive actions that may include bottom fishing closures and altered or shut down seasons for other species in order to avoid red snapper interactions.

The AP presented opinions and suggestions in the best of faith. However, the overriding opinion and feeling of the AP is that red snapper are recovered. This is based on the collective on-the-water experience of the AP members. The AP overwhelmingly feels they were asked for suggestions to solve a problem that no longer exists.

The red snapper is highly abundant. The biomass of the species is largely assumed by the AP as recovered and sufficient in abundance and range to begin a pathway to more liberal regulation of the species.

After the AP proved unwilling to even consider the scientific advice, and instead stubbornly maintained a position that no additional management actions were needed to reduce recreational bycatch and release mortality, and after recreational fishing organizations also expressed strong opposition to such measures, it was probably not surprising that, in the end, the Council did not forward Regulatory Amendment 35 to NMFS for approval.

But that did not end the debate over recreational red snapper bycatch.

On May 15, 2024, Tilman Gray, a commercial fish buyer in Hatteras, North Carolina, and Slash Creek Waterworks, Inc., a commercial fishing operation also located in Hatteras, brought a lawsuit against the Secretary of Commerce and the National Marine Fisheries Service, challenging ‘the failures of Defendants Gina M. Raimondo, in her official capacity as Secretary of Commerce, and the National Marine Fisheries Service (‘NMFS’), to promulgate regulations to stop overfishing on the South Atlantic stock of red snapper, as required by the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801-1891d…’

The complaint in that suit noted that, on July 23, 2001, NMFS notified the Council that the South Atlantic stock of red snapper was both overfished and experiencing overfishing; that the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) requires regional fishery management councils to develop plans to end overfishing within two years of such notification; and that if a regional fishery management council fails to take such action within two years, Magnuson-Stevens requires NMFS to promulgate regulations intended to achieve such goals within the following nine months.

The complaint then alleges that both the Council and NMFS failed to fulfil such statutory obligations, and that both Tilman Gray and Slash Creek Waterworks have been harmed as a result.

NMFS must have recognized the validity of the plaintiffs’ claims, for on August 22, 2024, the parties to the lawsuit entered into a settlement agreement, in which the defendants agreed, among other things, to ‘complete and submit to the Office of the Federal Register for publication by June 6, 2025, a final rule implementing a Secretarial Amendment to stop overfishing on the South Atlantic red snapper stock under 16 U.S.C. [section] 1854(c) & (e).’

The defendants would be relieved of their obligation to file such Secretarial Amendment if, prior to the June 6, 2025 deadline, the Council has filed ‘a plan amendment or proposed regulations’ to end overfishing of South Atlantic red snapper, and defendants have submitted a final rule reflecting such Council’s action.

Thus, federal fishery managers are now being forced to address the issue of recreational bycatch, and the resultant discard mortality, in the South Atlantic red snapper fishery, whether or not the recreational interests who arguably dominate the Council wish to do so.

On September 20, 2024, NMFS notified the Council that it would be preparing the agreed-upon Secretarial Amendment, but has not yet said what such amendment would look like. However, in the notice published on its website, the agency stated:

The most recent scientific information indicates the South Atlantic red snapper stock is recovering consistent with rebuilding goals owing to higher than average recruitment of young fish in recent years, yet too many red snapper are being caught and discarded dead to sustain this recovery if recruitment decreases back to more historical levels. The magnitude of these dead discards is causing overfishing of the red snapper stock and preventing the more abundant, younger fish from surviving to the older ages necessary to sustain the population in the long term. Management measures that reduce dead discards may serve to both end overfishing of the stock and increase the number of red snapper that can be retained by fishermen.

NMFS’ focus on reducing dead discards both as a means to end overfishing and as a way to convert dead recreational discards into red snapper landings is very reminiscent of some of the language found in Regulatory Amendment 35, which was ultimately rejected by the Council. It would thus seem likely that the remedies considered in Regulatory Amendment 35, including the use of closed seasons and closed areas to reduce angling effort and anglers’ encounters with out-of-season red snapper, will be included in the final Secretarial Amendment.

But perhaps more importantly, the Secretarial Amendment may represent NMFS first effort to constrain bycatch-prone recreational fishing activities; in doing so, it would create an important precedent.

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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/

FORAGE FISH CONSERVATION BILL AGAIN BEFORE CONGRESS

 

On September 26, Representatives Debbie Dingle (D-MI) and Brian Mast (R-FL) announced the reintroduction of the Forage Fish Conservation Act, a bill that was initially introduced over three years ago, in the 117^th Congress.

In explaining their rationale for introducing the bill, Reps. Dingle and Mast noted that its purpose was

“to strengthen key protections for fisheries and promote responsible management of forage fish.  The Forage Fish Conservation Act improves protections for forage fish—including herring and shad—that support marine ecosystems as well as other recreationally and commercially important species such as tuna, salmon, and cod.  These populations have experienced substantial decline because of human activity, which threatens the stability of marine ecosystems as well as opportunities for recreational fisherman [sic].  Currently, there are few management measures in place to address this decline.”

One of the most comprehensive forage fish protections now in place is the Mid-Atlantic Fishery Management Council’s Unmanaged Forage Omnibus Amendment, which was embodied in a final rule adopted by the National Marine Fisheries Service on August 28, 2017.

Because the Omnibus Amendment was just that—an amendment to all of the other fishery management plans overseen by the Mid-Atlantic Council--one of the criteria for a species being listed in, and protected by, such Amendment was that a fish, mollusk, or crustacean not only served as forage, but that it either served as forage for one or more of the species managed by the Mid-Atlantic Council or was caught as bycatch in one of the fisheries overseen by that council.  Thus, the National Marine Fisheries Service disapproved the proposed inclusion of bullet and frigate mackerels in the Omnibus Amendment, for

“While the amendment includes some information suggesting that these species are consumed by large pelagic species such as tuna, billfish, and sharks, it is not clear what portion of the diet of these species that bullet mackerel and/or frigate mackerel represent…[E]ven applying the lower forage thresholds used by the Council…there is no scientific evidence presented in this amendment that indicates bullet and frigate mackerel are forage for [Council] managed species…

“While there is evidence that a small amount of bullet mackerel was caught with bottom trawl gear that resulted in the landings of species managed by the Council, the information and analysis indicate co-occurrence that is not necessarily indicative of systematic bycatch in those fisheries…With no dealer reported landings of bullet mackerel and an average of less than 7,500 lb.…of frigate mackerel reported landed each year between 1996-2015…there is limited information to support that these species are caught as bycatch in managed fisheries…”

In the end, the Omnibus Amendment extended its protections to ten families and one species (the Atlantic saury) of fish, to pelagic mollusks (other than sharptail shortfin squid), and an array of zooplankton and other animals that attain a maximum length of less than one inch.  Landings of all such forage species must be recorded, only NMFS-permitted vessels may legally land them, and vessels are limited to a 1,700 pound possession limit of all designated forage species, combined.

However, to some extent, such protections are illusory, as the Omnibus Amendment also allows

“use of an experimental fishing permit…to support any new fishery or the expansion of existing fisheries for Mid-Atlantic forage species.  The Council would consider the results of any experimental fishing activity and other relevant information before deciding how to address future changes to the management of fisheries for Mid-Atlantic forage species.  Pursuant to existing regulations…the Regional Administrator already consults with the Council’s Executive Director before approving any exemption under an EFP request.”

Thus, although the Council’s stated intent in adopting the Omnibus Amendment was

“to prohibit the development of new and expansion of existing directed commercial fisheries on certain unmanaged forage species in Mid-Atlantic Federal waters,”

And even though

“The Council intends to prohibit such fisheries until they have had an adequate opportunity to assess the scientific information relating to any new or expanded directed fisheries and consider potential impacts to existing fisheries, fishing communities, and the marine ecosystem,”

the exempted fishing permit process provides fishermen with a potential opportunity to do an end run around the protections that the Omnibus Amendment would seem to provide.

Data on unmanaged forage species is necessarily limited, as funding for stock assessments is directed toward managed species, as are the human resources needed to produce such assessments.  Thus, there may often be little or no scientific information available on the status of forage fish stocks, or on the impacts of increased harvest of forage species on the species itself, on existing fisheries, or on marine ecosystems.  Yet under such circumstances, the exempted fishing permit process could frustrate any efforts to apply precautionary principles to forage fish management, and allow the directed harvest of such species without any knowledge of what then consequences of such harvest might be.

Fortunately, that hasn’t happened so far. 

The only request for an exempted fishing permit that might open up a fishery for an unmanaged Mid-Atlantic forage species was made in 2021, when three New Jersey companies sought permission to purse seine 6.6 million pounds of Atlantic thread herring (a/k/a “threadfin herring”).  The herring are a data-poor species, with so little scientific information available that the exempted fishery itself would be used to collect biological data.

NMFS Greater Atlantic Regional Fisheries Office was willing to take a long, hard look at the application before issuing an exempted fishing permit.  It noted that the proposed purse seine fishery could pose a threat to sea turtles and possibly Atlantic sturgeon, which are included on the list of threatened and endangered species.  It also noted that there are currently no purse seine fisheries operating in the Mid-Atlantic region, so the proposed thread herring fishery could not be covered by existing endangered species consultations, but instead would require a new consultation, along with the concomitant biological opinion and incidental take statement, along with possible measures to minimize the number of such incidental takes.

Mid-Atlantic Council staff have noted that

“GARFO staff are focused on other fishery management priorities, therefore, they are currently unable to assist with additional analyses to ensure compliance with [the National Environmental Policy Act] and [the Endangered Species Act].  The same is true for Council staff.  The applicants are currently considering the possibility to develop the necessary documents with assistance from contractors.”

Thus, it is unclear whether an exempted fishing permit for threadfin herring will ever be issued.  It is also unclear whether, if the fact pattern had been a little different and staff at the Council or regional office had a little more time to consider the application, an exempted fishing permit might have been issued, despite the lack of information regarding its possible impacts.

And given that only the Mid-Atlantic and Pacific fishery management councils have adopted relatively broad protections for forage species, directed fisheries for forage fish could be developed along much of the United States’ coastline with virtually no consideration for such species role in the ecosystem.

Thus, the Forage Fish Conservation Act addresses an important issue.

No copy of the bill’s text has yet been made readily available to the public.  However, assuming that it resembles the bill introduced in 2021, it will create basic protections for forage species by requiring each regional fishery management council’s scientific and statistical committee to provide advice on

“maintaining a sufficient abundance, diversity, and localized distribution of forage fish populations to support their role in marine ecosystems,”

while also requiring each such council to

“develop a list of unmanaged forage fish occurring in the area under its authority and prohibit the development of any new directed forage fish fishery until the Council has considered the best scientific information available and evaluated the potential impacts of forage fish harvest on existing fisheries , fishing communities, and the marine ecosystem; determined whether conservation and management of the forage fish fishery is needed; if a determination is made that the conservation and management is needed, prepared and submitted to the Secretary a fishery management plan or amendment…; and received final, approved regulations from the Secretary…”

Such explicit requirements would better protect forage fish everywhere in United States waters, and also make it less likely that the exempted fishing permit process could be used to work around existing forage fish protections.

The bill’s further requirement that

“when setting annual catch limits for forage fish fisheries, assess, specify, and reduce such limits by the diet needs of fish species and other marine wildlife, such as marine mammals and birds, for which forage fish is a significant part of their diet,”

would help to assure that, in managing forage species, maintaining their ability to fulfil their role in marine ecosystems would take priority over economic concerns. 

Unfortunately, while the Forage Fish Conservation Act is a good bill that deserves passage, the odds of it actually being signed into law sometime this year are vanishingly small.  There is no Senate companion, and no strong indication that any Senator is willing to champion such legislation.  To add to the headwinds militating against the bill’s passage, 2024 is an election year, and members of Congress will spend all of their time this October trying to maintain their seats for another term, and will not be paying particular attention to their legislative duties.  

In the likely event that Congress reconvenes for a lame duck session, legislators will be addressing higher-priority items, including appropriations bills for all branches of government, rather than legislation with a narrower focus, such as the forage fish bill.

However, the fact that some legislators are still willing to champion the forage fish issue should provide some reason to hope that forage fish legislation will eventually get the attention that it deserves, perhaps sometime after the new Congress convenes next January.

 

 

 

FEDERAL APPELLATE COURT FINDS REGIONAL FISHERY MANAGEMENT COUNCILS (SLIGHTLY) UNCONSTITUTIONAL

The Magnuson-Stevens Fishery Conservation and Management Act, since it first became law in 1976 (when it was merely titled the “Fishery Conservation and Management Act), provided for the establishment of eight regional fishery management councils, which were intended to

“exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of [fishery management] plans under circumstances (A) which will enable the States, the fishing industry, consumer and environmental organizations, and other interested persons to participate in, and advise on, the establishment and administration of such plans, and (B) which take into account the social and economic needs of the States.”

  Magnuson-Stevens provides that each council shall,

“(1) for each fishery under its authority that requires conservation and management, prepare and submit to the Secretary [of Commerce] (A) a fishery management plan, and (B) amendments to each such plan that are necessary from time to time…

“(2) prepare comments on any application for foreign fishing transmitted to it…

“(3) conduct public hearings, at appropriate times and in appropriate locations in the geographical area concerned, so as to allow all interested persons an opportunity to be heard in the development of fishery management plans and amendments to such plans, and with respect to the administration and implementation of provisions of this Act…

“(4) submit to the Secretary such periodic reports as the Council deems appropriate, and any other relevant report which may be requested by the Secretary,

“(5) review on a continuing basis, and revise as appropriate, the assessments and specifications made…with respect to the optimum yield from, the capacity and extent to which United States fish processors will process United States harvested fish from, and the total allowable level of foreign fishing in, each fishery…within its geographical area of authority,

“(6) develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee…

“(7) develop, in conjunction with the scientific and statistical committee, multi-year research priorities…and

“(8) conduct any other activities which are required by, or provided for in this Act or which are necessary and appropriate to the foregoing functions.”

It’s important to note that one of the responsibilities that a regional fishery management council does not have is promulgating regulations that govern fisheries within its jurisdiction.  That authority lies solely with the Secretary of Commerce, who may adopt regulations that accord, in whole or in part, with a council’s advice, may opt to reject a council’s advice and not adopt the requested regulations or, if a council fails to act within a specified time, adopt needed regulations on his or her own authority.

For nearly 50 years, the federal fishery management system has adhered to that process, with the councils providing recommendations to the Secretary and the Secretary acting, or opting not to act, in accord with councils’ advice.  The process has generally served both the fish and the fishermen well, rebuilding formerly overfished stocks and increasing the abundance of marine resources on every coast of the United States.

Still, many fishermen have been angered when a regional fishery management council voted to reduce commercial quotas or recreational landings, or failed to increase such quota or landings to a level that the fishermen deemed appropriate.  And the National Marine Fisheries Service is not immune from the political currents that flow through the nation, including the current rhetoric to dismantle “the administrative state” and reduce the power and influence of administrative agencies.

Those two forces came together in a New Jersey courtroom early this year, when the matter of Lofstad v. Raimondo was heard.  The case involved two New Jersey commercial fishermen, who challenged a final rule promulgated by NMFS which increased the recreational allocation of summer flounder, scup, and black sea bass, while decreasing the commercial allocations of such species.  

The rule reflected the agency’s approval of the Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment, which became Amendment 22 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan.  Because the agency clearly complied with the requirements of the Administrative Procedures Act when it adopted the rule, the plaintiffs in Lofstad v. Raimondo chose not to attack the rule itself, but instead attacked the Mid-Atlantic Council itself, arguing

“that the twenty-one members of the Mid-Atlantic Council…exercise the power of, but were not properly appointed as, ‘Officers’ under the Appointments Clause of the United States Constitution.  Therefore, Plaintiffs conclude, NMFS should not have promulgated the Challenged Rule and it must be vacated and its enforcement against Plaintiffs enjoined.”

 Plaintiffs were represented by the Pacific Legal Foundation, which describes itself as

“a national public interest law firm that defends Americans from government overreach and abuse.  We sue the government when it violates your constitutional rights—and we win.

“At PLF, we believe in individual liberty: that when people are free to live peacefully and productively, without interference by government, they improve themselves, their families, and their communities.

“We represent hundreds of Americans free of charge, giving them a day in court to protect their rights.”

The trial court, after hearing arguments made by both the plaintiffs and the federal agency, found for the agency, finding that members of the Mid-Atlantic Council were not “Officers” subject to the Appointments Clause because they lacked any “substantial authority,” since

“the Council’s proposed regulation binds no third party.”

The proposed Amendment 22, once approved by the Council, was forwarded to NMFS, and it was up to NMFS to promulgate the final, binding rule.

Plaintiffs were unwilling to accept the court’s decision, and appealed it to the United States Court of Appeals for the 3^rd Circuit, which came to a different conclusion.  It found that, because of three very precisely described instances where the Council could block NMFS from taking certain actions, the Council members did have “substantial authority” and thus were “Officers” pursuant to the Appointments Clause.

In the end, that decision didn’t do the plaintiffs much good.

The 3^rd Circuit found that the Council members were “Officers,” and that they exercise “substantial authority,” because

“The Council can block the Secretary of Commerce from acting in three situations.  The Secretary must get its approval before adopting a limited-access fishery system, delegating fishery management to a state, or repealing a [fishery management] plan…By withholding their assent, Council members can pocket veto those actions…

”The Council’s pocket-veto power is especially significant because it undermines the democratic chain of command.  The Constitution trusts the President with significant powers, like the veto, because he is elected and accountable to the voters.  Executive officers below the President are not.  So they must be ‘accountab[le] to the public through a clear and effective chain of command down from the President, on whom all people vote…

“The Council’s pocket-veto powers thwart that chain of command.  The Council need not reflect the President’s views because it is an advisory body.  But the Secretary of Commerce, who heads the Department of Commerce, answers to the President and the people.  And Council members can refuse to let her set up limited-access fisheries, delegate to states, or repeal a plan.  By blocking her actions, the Council wields significant authority.  And no one can override the Council’s pocket veto…That is enough to make Council members officers, not employees.  [citations omitted]”

Moreover, the court found that Council members weren’t just “Officers,” but “Principal Officers,” who required Presidential nomination and Senate confirmation before they could take their posts.  It stated that

“To decide whether an officer is principal or inferior, courts often consider whether the officers have power to make final decisions for the United States…Officers with unreviewable authority are principal officers.

“Council members have unreviewable authority.  ‘[N]o principal officer at any level within the Executive Branch directs and supervises’ Council members’ pocket vetoes…On the contrary, they exercise their pocket vetoes over a principal officer: the Secretary of Commerce.  Thus, they are principal officers.  They should be appointed by the President and confirmed by the Senate, but they are not.  Their appointments are unconstitutional.  [citations omitted]"

The 3^rd Circuit then had to decide how the Council members’ status as federal officers impacted the plaintiffs, and the structure created by Magnuson-Stevens.  Although it had agreed with the plaintiff fishermen’s positions up to that point, when it came time to craft a remedy, the court took a judicially conservative stance, rejecting the plaintiffs’ request, and crafting one that did the least harm to the federal fishery management system.

“The fishermen ask us to invalidate the amendment.  But we need not go so far.  When a statute is constitutionally flawed, ‘we try to limit the solution to the problem, severing any problematic portion while leaving the remainder intact…Even though this statute has no severability clause, we can sever an unconstitutional provision unless Congress evidently would not have passed the remaining parts without the invalid ones…

“Even if we knock out the pocket vetoes, the statute remains ‘fully operative”…The Council’s ‘most significant responsibility’ is drafting proposed plans; that duty remains untouched.  What is more, the government conceded at argument that these pocket-veto provisions are rarely used and that severing them would not disrupt the statutory scheme.  So we will sever the pocket-veto powers…Those severances suffice to remove the Council’s significant authority.

“Without those powers, the Council members are mere employees who fall outside the Appointments Clause.  They did not use their unconstitutional powers to enact or tweak the amendment in this case.  Their advisory role in proposing the amendment plus its implementing regulation was proper.”

Thus, the fishermen technically won their lawsuit, convincing the 3^rd Circuit that the Council members were unconstitutionally appointed, but as a practical matter, they lost the fight, because the lowered commercial allocations remain in place, and the Council’s ability to further reduce commercial quotas and/or recreational landings remains intact.

Looking at the decision from the agency’s side, NMFS lost, but it didn’t lose very much.  It is rare that NMFS finds itself in a situation (other than when it is managing highly migratory species) when it takes action on its own initiative, and when it does, it is almost always in response to a council’s inaction (its recent decision to begin work on a Secretarial Amendment to address overfishing in the South Atlantic red snapper fishery being a case in point).  So as a practical matter, NMFS’ authority to conserve and manage marine fisheries remains intact.

Still, that might not always be the case.  Last August, the 5^th Circuit remanded the case of Arnesen v. Raimondo, which makes a similar Appointments Clause challenge with respect to members of the Gulf of Mexico Fishery Management Council, to the trial court which, like the trial court in the 3^rd Circuit case, originally upheld NMFS’ position.

Given that the 5^th Circuit is arguably the most judicially active federal appellate court in the country, which frequently issues extremely ideological opinions that diverge from other courts’ understanding of the law, it is very possible that, when the Arnesen matter returns to the appellate court, the result will be a decision invalidating the regional fishery management council system.  

At that point, there will be two different interpretations of the same law made by two different federal circuit courts, a situation that would make the issue ripe for final determination by the Supreme Court of the United States.

The Supreme Court might or might not grant certiorari should it be asked to decide the issue. 

But given the decisions that it has handed down in recent years, it would not be very surprising to see the Supreme Court make a decision that casts the entire federal fisheries management system into chaos.

Should that happen, it is difficult to imagine the current, dysfunctional Congress, which treats the legislative process more like a football game where the goal is to score “wins” for your side, rather than as a deliberative process intended to score wins for the nation, doing anything to rescue the system and put a workable management process in place.

The resulting vacuum would be something to fear.