FULL CIRCLE?

 

I caught my first fish in 1956, when I was barely two years old and walking on two legs was still something of a novelty.  It was a bergall—more properly, a cunner—and I use the word “caught” advisedly, because while I did have one hand on the rod, and was told that I did manage to laboriously crank the little wrasse to the surface, my father kept a firm grip on the whole assemblage to make sure that my grasp on the rod didn’t fail and let everything fall overboard.

In the years between then and now, as my size and strength steadily increased, I caught quite a few fish, all but the first handful without the same degree of parental assistance.  They were mostly eels, winter flounder, and snapper blues at first, but quickly progressed to other things like striped bass, tautog, adult bluefish and cod, various critters that swam under a Florida bridge, and eventually bigger stuff like mako sharks, sailfish, and bluefin.

I’ve seen stocks of fish wax and wane, sometimes to wax abundant once more, sometimes to just disappear.  I’ve seen new species invade my old fishing grounds, and old, familiar targets retreat to other waters.

During those years, Congress passed the Fishery Conservation and Management Act of 1976 (now, the Magnuson-Stevens Fishery Conservation and Management Act), the Atlantic Striped Bass Conservation Act of 1984, the Atlantic Coastal Fisheries Cooperative Management Act of 1993, the Sustainable Fisheries Act of 1996, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, and the Modernizing Recreational Fisheries Management Act of 2018.

During those years, the striped bass stock thrived, became overfished, collapsed, rebuilt, increased, declined, became overfished, and might be on the way to collapsing again.  Cod collapsed, the southern stock of winter flounder collapsed, smelt and tomcod disappeared from most waters south of Maine, and the North Atlantic stock of shortfin mako shark dropped low enough that all harvest, throughout the North Atlantic Basin, has been outlawed; it has a 50% chance of rebuilding over the next 50 years.

At the same time, once-overfished stocks of black sea bass and scup were fully rebuilt, than soared to more than twice their target abundance.  The bluefin tuna population, facing unsustainable commercial fishing pressure, dropped sharply throughout the ‘80s and ‘90s, but seems to be rebuilding nicely; as I write this during the second week of November, triple-digit bluefin are still being caught within sight of Long Island’s shore.  Bluefish, once so abundant as to be a pest, became overfished, but a rebuilding plan seems to be working, and the stock may be rebuilt within three or four years.  Even weakfish, which had fallen to just 3 percent of their spawning potential a few years ago, now seem to be showing signs of revival; whether it will last, or the stock will decline again, is yet to be seen.

Looking back on over 60 years on and around salt water, it might be time to try to figure out whether people—anglers, commercial fishermen, fishery managers, and anyone and everyone else who might be in a position to influence fisheries policy—seem to have learned any lessons in the years since the Soviet Union launched Sputnik and Dwight D. Eisenhower was elected to his second term as President of the United States.

I’m really not sure that they have.

Congress passed the Fishery Conservation and Management Act of 1976 because the nation’s fish stocks were in serious decline, in large part because big factory trawlers belonging to a host of European and Asian nations were sweeping the life off the continental shelf.  So legislators pushed the foreigners 200 miles offshore but then, apparently thinking that overfishing by the United States fleet was somehow less malign than overfishing by boats from other nations, provided cheap loans to U.S. fishermen so that they could buy bigger boats and more efficient gear, and begin where the foreign fleets left off, killing more fish than the stocks could sustain and driving the abundance of just about all of the important commercial species—many of which were also important recreational targets—low enough that the stocks were deemed overfished.

At the time, the law required that stocks be managed for “optimum yield,” just as it does today, but back then, “optimum” was defined as

“with respect to the yield from a fishery…the amount of fish which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.  [emphasis added, internal formatting omitted]”

In theory, fishing mortality should never exceed maximum sustainable yield, but since fishermen could always make more money if they brought more fish back to the dock, at least in the short term, yields were regularly “modified” upward, well above maximum sustainable yield, for economic reasons, and so fish stocks continued to decline.

Things got bad enough that, by the early 1990s, a lot of boats were staying tied up at the docks because fish were so scarce that it was no longer economically viable to go out and try to catch them.  In response, Congress chose to amend federal fisheries law by passing the Sustainable Fisheries Act of 1996, which among other things prohibited overfishing, required overfished stocks to be rebuilt within a time certain, generally not more than 10 years, and changed the definition of “optimum” yield by deleting the word “modified” and replacing it with “reduced,” so that annual quotas that exceeded maximum sustainable yield would no longer be entertained.

But fishermen are a creative bunch, and found ways to get around the Sustainable Fisheries Act’s restrictions.  One of the easiest ways to do that was to forego annual quotas altogether, and instead adopt so-called “input controls” such as limiting a boat’s days at sea, or limiting the size or horsepower of any new vessel that was replacing an old one on a fishing permit.

While such measures worked in theory, and so technically complied with the law, they failed in practice.  Stocks of Atlantic cod, winter flounder, and other species were still chronically overfished, and steadily approached the brink of stock collapse.  In order to close the loophole, Congress acted again, passing the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 which, among other things, required that all fishery management plans

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”

The law further requires that when preparing such plans, regulations, or specifications, a regional fishery management council must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommended by its scientific and statistical committee or the peer review process established [elsewhere in the law].”

That pretty well stopped fishermen sitting on the regional fishery management councils from finding ways around annual quotas, and helped to prevent overfishing, but it created another problem.  Fishermen—and, in particular, recreational fishermen—wanted to kill and take home more fish than the new regulations allowed.  Because there are so many recreational fishermen, and because their harvest, unlike that of commercial fishermen, can’t be counted and managed in near real-time, they often exceeded their recreational harvest limit, and so faced more restrictive regulations, intended to constrain their landings to or below the science-based limit, in the following year.

Restricting anglers to a science-based harvest limit was good for the fish, but it meant that for-hire vessels—party and charter boats—carried fewer passengers, and that the fishing tackle industry sold less product, reducing the profits of both.  Thus, the recreational industry, along with “anglers’ rights” groups such as the Coastal Conservation Association and the philosophically similar, but now-defunct Recreational Fishing Alliance, began to rail against the federal fishery management system.  The result was the Modernizing Recreational Fishery Management Act of 2018, the so-called “Modern Fish Act,” which was intended to create management paths that would let anglers escape their obligation to keep landings within an annual catch limit, and so put more fish in their coolers while putting more cash in the recreational fishing industry’s coffers.

Empowered by the Modern Fish Act, the Mid-Atlantic Fishery Management Council, along with the Atlantic States Marine Fisheries Commission (which is not bound by the terms of Magnuson-Stevens), set about finding a way to let anglers regularly exceed their annual catch limit of four popular species, bluefish, summer flounder and, in particular, scup and black sea bass, as the spawning stock biomass of the latter two species has risen to more then twice the biomass target in recent years.

The result was something that was called both the “Harvest Control Rule” (which, strictly speaking, it wasn’t) and the “Percent Change Approach,” which established a methodology for setting a so-called “recreational harvest target” that could be well above the Recreational Harvest Limit or the recreational sector’s Annual Catch Limit, and that, when combined with the commercial sector’s Annual Catch Limit, could lead to landings exceeding the overall Annual Catch Limit, the Acceptable Biological Catch, or even the Overfishing Limit.

The Harvest Control Rule/Percent Change Approach was not warmly embraced by the Mid-Atlantic Council’s Scientific and Statistical Committee and was ultimately rejected by Mid-Atlantic Council staff.  However, it was enthusiastically embraced by the National Marine Fisheries Service’s Greater Atlantic Regional Fisheries Office, which went to extraordinary lengths to convince the Mid-Atlantic Council to adopt it.

The approach has now been used to set black sea bass recreational management measures for 2023 and 2024, and will again be used to set 2025 measures.  After that, it will sunset, although it is virtually certain that the Mid-Atlantic Council will either approve its future use or, more likely, replace it with a modified approach that will also allow the recreational sector to exceed the Recreational Harvest Limit with absolute impunity.

In early 2023, the Natural Resources Defense Council sought judicial review of the Harvest Control Rule/Percent Change Approach, but the court ultimately sided with NMFS, finding that the Annual Catch Limit was not ultimately a hard limit on catch, and that optimum yield could even allow maximum sustainable yield to be exceeded for a year or so, provided that spawning stock biomass remained above target, based on relevant social and economic factors.

A month or so before the court decision was handed down, the Mid-Atlantic Council and ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board were presented with a new Management Track Stock Assessment for Black Sea Bass.  The stock assessment found, among other things, that black sea bass biomass was about 20 percent lower than previously believed, and that both the biomass target and the maximum sustainable yield of the stock were more than 20 percent lower, too.  Based on that stock assessment, the Mid-Atlantic Council’s Scientific and Statistical Committee recommended that black sea bass landings be reduced by 20 percent, which seemed a logical finding.

However, the Management Board disagreed, choosing to ignore both the findings of the stock assessment and the advice of the scientists on the committee, and instead carried the 2024 black sea bass specifications over into 2025—even though, by doing so, the combined annual catch limits for the commercial and recreational sectors would exceed the stock assessment’s calculation of the Overfishing Limit.  The Mid-Atlantic Council, bound by the provisions of Magnuson-Stevens, accepted the scientists’ advice.

The National Marine Fisheries Service, apparently taking the position that only the regional fishery management councils, and not NMFS itself, are legally required to set annual catch limits at or below the scientists’ recommended level, rejected the Mid-Atlantic Council’s recommendation and instead emulated the Management Board’s actions, carrying over 2024 specifications into 2025.  NMFS thus adopted an Annual Catch Limit for the combined sectors that is about 20 percent above the Overfishing Limit set in the stock assessment.

Thus, federal fishery managers now appear to have come full circle.

They began in the late 1970s, allowing regional fishery management councils to set annual harvest levels above maximum sustainable yield, in order to provide greater short-term economic benefits to the fishing fleet.

That didn’t work out too well, so federal managers found themselves bound by a new law that prohibited overfishing.  And as managers worked within that law, they began to end the overfishing of many stocks, and once-overfished stocks began to rebuild.  Yet some regional fishery management councils, particularly the New England Fishery Management Council, tried to find ways around the new law’s strict requirements.  Thus, they came under additional strictures, that required them to adopt management plans containing science-based annual catch limits, which had the effect of further limiting overfishing, and helped more stocks to rebuild.

But the recreational fishing industry convinced Congress to give federal managers more leeway to manage fish stocks, so in the Mid-Atlantic region, they approved management measures that again allowed the regional fishery management Council to adopt annual recreational catch limits that, when combined with the commercial limits, exceeded the scientific recommendations and could at times exceed maximum sustainable yield, all to accommodate certain social and economic factors.

And now, we find the Greater Atlantic Regional Fisheries Office going a step further and, again yielding to economic considerations, setting annual specifications for black sea bass that not only exceed the recommendations of the Mid-Atlantic Council’s Scientific and Statistical Committee, but also ignore the best scientific information available, the most recent Management Track Stock Assessment.

No one seems to be exercising any caution.  Economic factors are driving management decisions even though, this time, it's probably not permitted by law.

It’s almost like we’re in the 1970s all over again.

Of course, the black sea bass stock is supposedly still at 219 percent of the biomass target, and not overfished.  But the stock assessment’s projections still show abundance declining over in the next few years.  Reports from the 2024 season indicate that anglers in the northeast caught fewer and smaller sea bass than they did in 2023, making those projections more credible.

At the same time, ocean bottom temperatures in the northeast were reportedly cooler than normal in 2024.  Since black sea bass recruitment is dependent on warm, saline water at the edge of the continental shelf, where the Year 0 sea bass spend their first winter, we might easily see poor recruitment this year.

So at a time when we seem to have an abundant, but declining, stock largely made up of just a few, relatively young year classes and dependent on good annual recruitment to maintain its size, facing cold water conditions this winter that may significantly hamper the recruitment of Year 1 fish in 2025, we also have federal fishery managers who, instead of following the advice of the stock assessment and the Mid-Atlantic’s Scientific and Statistical Committee, have adopted specifications that make it likely that the stock will be overfished in 2025.

That would seem to be a recipe for failure.

Just about everyone is familiar with George Santayana’s quote,

“Those who cannot remember the past are doomed to repeat it,”

although when we look at the way Mid-Atlantic fisheries managers, after shaking off their earlier problems and finding some real success, are now seemingly coming full circle, repeating the mistakes of the past as they move into the future, Karl Marx’s comment that history will repeat itself

“the first time as tragedy, the second time as farce”

may be more apropos.