2024--A DISAPPOINTING YEAR FOR FISHERIES MANAGEMENT

 

In the decade—now almost eleven years—since One Angler’s Voyage first appeared, the last post in December has typically taken a look at the big fisheries stories of the year, and made some general comments on the progress of fisheries management in the past twelve months.

This year, it is impossible not to note that many of the important fisheries issues are progressing backwards.  Whether we are talking about the regional fishery management councils, the states, the Atlantic States Marine Fisheries Commission, or the courts, conservation advocates and the fish that they seek to conserve have lost more fights than they’ve won, while some of the very few victories might be short-lived.

THE GOOD NEWS

The big win—Klamath River salmon

Last fall, the final episode of a years-long effort to remove dams from California’s Klamath River played out, as a temporary cofferdam, the final barrier to upstream movement of anadromous fish, was taken down.  Very shortly thereafter, a biologist marked the passage of the first chinook salmon to ascend the river since 1912.

Getting to the point where salmon could again ascend a free-flowing Klamath River cost $500 million and over twenty years of effort.  Four large dams were removed, and all the work is not yet done.  It will take years before the Klamath’s runs of salmon and steelhead (searun rainbow) trout are restored.  In the meantime, the river’s banks, so long submerged by still waters behind the now-removed dams, will have to be revegetated with native plants, and so stabilized to prevent erosion.

But that KIamath dam removals, the largest such removal project in the nation so far, illustrates what can still be done to preserve natural runs of anadromous fish, and stands as an example that should be replicated on every coast.

NMFS settles red snapper lawsuit

The Magnuson-Stevens Fishery Conservation and Management Act states that regional fishery management councils should

“exercise sound judgment in the stewardship of fishery resources,”

but the unfortunate truth is that too many people seek council seats not to be stewards of the nation’s living marine resources, but instead to protect their own interests and the interests of various businesses with which they are somehow affiliated.

And usually they get away with it, provided that their efforts make some meager effort to comply with the applicable law.  Sometimes, though, councils take things a step too far, as was the case when the South Atlantic Fishery Management Council flatly refused to take meaningful action to end the recreational overharvest of red snapper.

It’s not that the South Atlantic Council didn’t understand that there was a problem.  They went so far as to complete a regulatory amendment, which would have imposed time and area closures designed to reduce anglers’ bycatch of red snapper, and the resultant dead discards.  But faced with strong opposition from the recreational sector, the Council never forwarded that amendment to the National Marine Fisheries Service for approval and implementation.

And for once, anglers didn’t get away with obstructing needed fisheries management measures.  Commercial fishermen sued NMFS, arguing that it didn’t take timely action to reduce the dead discards, and resultant overfishing, attributable to the recreational sector.  NMFS took a good look at the lawsuit, and apparently realized that its inaction was indefensible.  As a result, NMFS agreed to a settlement which committed the agency to publish final regulations addressing the overfishing issue by June 6, 2025.

Thus, absent a change of heart at the Council or interference from Congress, NMFS will be forced to step in and be the stewards of the resource that the Council was obligated to manage, before it got sidetracked into defending the recreational fishery instead of the fish that both commercial and recreational fishermen depend upon.

But at least the red snapper might finally get a break.

Loper-Bright a blessing in disguise?

For the past forty years, when there was an ambiguity in a statute setting forth the powers of a federal agency, and an agency’s exercise of its powers was challenged in court, the reviewing court had to defer to the agency’s interpretation of the relevant statute, so long as that interpretation was reasonable.  Such deference was referred to as the “Chevron doctrine,” after the United States Supreme Court case which established it, Chevron U.S.A. v. Natural Resources Defense Council.

The Chevron doctrine was frequently challenged by right-leaning commentators, who felt that it gave too much power to unelected federal bureaucrats, and infringed on power that ought to belong to Congress and to the courts.  In recent years, challenges to the doctrine became more and more frequent, but while it was weakened, it was never overturned.

That changed on June 28, 2024, after the Supreme Court handed down its decision in Loper Bright Enterprises v. Raimondo.  While the plaintiffs brought the action to challenge the National Marine Fisheries Service’s requirement that vessels in the Atlantic herring fishery carry industry-paid observers, the case, which was argued by a right-wing law firm at odds with the “administrative state,” became the vehicle used to successfully attack Chevron.  The Supreme Court’s decision explicitly overturned the Chevron doctrine, and found that only the courts have the authority to interpret the nation’s laws.    (Although that might not do Loper-Bright too much good in the end, as the matter was remanded to the United States Court of Appeals for the District of Columbia Circuit, with instructions that it be reconsidered, this time with no reference to Chevron.  Observers say that the court seemed willing to use Magnuson-Stevens’ legislative history, along with other customary rules of statutory interpretation, to uphold NMFS requirement that the herring industry pay for the needed observers.  Loper Bright may well have won the Chevron battle, but could ultimately lose the fight that it cared most about.)

The initial reaction of many in the advocacy community, including those advocating for marine resources conservation, to the Court's decision was negative, as people worried that it would lead to many corporate challenges to clean water, clean air, employment, health, and other important regulations, and block agency efforts to implement beneficial change.

But there is another side of the coin that is only now getting some attention:  If a presidential administration chooses to serve corporate interests by gutting regulations that control air and water pollution, overfishing, the destruction of terrestrial and marine ecosystems, etc., that administration’s agencies will no longer be deferred to by the courts.  Instead, regulatory rollbacks, as well as new, destructive regulations of every kind, will be subject to court challenges and a thorough court review that might well make the difference between clean water and the degradation of our rivers, estuaries, bays, and sounds.

Looked at in that context, the Loper-Bright decision looks very much like a blessing in disguise.

A MIXED BAG

Striped bass

Striped bass started 2024 strong, as the Atlantic States Marine Fisheries Service adopted Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Striped Bass in January.  Thanks to that Addendum, the former emergency measure that established a 28- to 31-inch coastal recreational slot limit was made permanent, a 1-fish bag and 19- to 24-inch slot size was adopted for the Chesapeake Bay, and the commercial striped bass quota was reduced by seven percent.

A group of commercial fishermen and charter boat operators from Maryland challenged Addendum II in federal district court, claiming, among other things, that it constituted an illegal “taking” under the Fifth Amendment to the United States Constitution.  The trial judge quickly laughed them out of the courtroom when they requested a preliminary injunction that would prevent Addendum II from going into effect, and though they appealed that decision, their chances don’t look very good at the United States Court of Appeals for the 4^th Circuit either, as one judge asked Delmarva’s counsel

“Isn’t this regulation intended to save and preserve the striped bass?  If you take that at face value, then without this, the striped bass could become extinct, and your client would lose 100% of its business,”

and later asked.

“They can catch more than one.  They just can’t keep more than one, correct?”

while another judge questioned the plaintiffs’ claim that Maryland was “coerced” into compliance with the ASMFC’s management actions, noting that

“I don’t think it’s fair to think of anything in this regime as coercion.  The member states all continue to be voluntarily associated with this compact,”

 while adding.

“There is a sort of fashion right now to sort of attack institutions and claim that institutions that have been working well are somehow fundamentally defective.  I think that we should be very careful about entertaining those kinds of claims.”

Based on such comments, the plaintiffs should soon taste defeat at the appellate level, too.

That happened less than three weeks ago, but the striped bass’ fortunes have gone downhill since then.

After the ASMFC’s Atlantic Striped Bass Management Board’s October meeting, where it voted nearly unanimously to hold another meeting this month, when new management measures for 2025 would be considered, it seemed that the striped bass stock, despite being overfished and experiencing historically low levels of recruitment, was likely to be fully rebuilt by 2029.

But when the Management Board met on December 16, those hopes and expectations were dashed, as the Board failed to take any action to increase the likelihood of timely rebuilding, or to protect the 2018 year class, which will be the focus of recreational harvest next year.  Instead, the Management Board decided to initiate a new addendum to the Management Plan which, at best, will adopt new management measures for the 2026 season, after the 2018 year class has already borne the brunt of a full season of recreational harvest, and at worst may try to undo some of the beneficial provisions of Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which was approved less than three years ago.

At this point, the future health and sustainability of the striped bass stock is very much up in the air.

BAD TRENDS

Court allows bad management of Mid-Atlantic fisheries

After the National Marine Fisheries Service approved the Mid-Atlantic Fishery Management Council’s proposal to abandon the traditional management of bluefish, summer flounder, scup, and black sea bass, and replace it with a so called “Harvest Control Rule/Percent Change Approach” that would allow managers to ignore the annual catch limit for the recreational sector, and even allow them to set “recreational harvest targets” that would result in the overall annual catch limit, and even the acceptable biological catch, being exceeded, the Natural Resources Defense Council sued, claiming that such management approach violated key provisions of Magnuson-Stevens.

Unfortunately, a trial court judge at the federal district court in Washington, D.C. disagreed, handing down a decision that, although it seemed to stretch logic close to the breaking point at times (finding, for example, that even though Magnuson-Stevens requires regional fishery management councils to set annual catch limits for all managed species, nothing in the law says that annual catch limits were intended to be actual limits on catch) nevertheless upheld the Percent Change approach.  In doing so, the court focused on the concept of optimum yield, finding that in order to attain the optimum yield from abundant stocks, it might be necessary to exceed the annual catch limit.  Similarly, the court’s decision seemed to suggest that even if the fishing mortality rate exceeded the rate that would produce maximum sustainable yield, it didn’t constitute overfishing if biomass waws above the biomass target.

It was an unfortunate decision that will probably inspire other fishery management councils to seek ways to circumvent Congress’ intent when it passed the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, but for now, it represents the current state of the law.

ASMFC and NMFS ignore black sea bass stock assessment

Unfortunately, the efforts of NMFS—or, at least, of NMFS’ Greater Atlantic Fisheries Regional Office—to undercut Magnuson-Stevens and what would appear to be the intent of Congress didn’t stop when it approved the new “Percent Change” approach to recreational fisheries management.  That became apparent last August, when first the Atlantic States Marine Fisheries Commission, and later the National Marine Fisheries Service, chose to ignore the “best available scientific information,” as Magnuson-Stevens puts it, with respect to black sea bass, because it didn’t want to tell the recreational sector—or, at least, the for-hire fleet—that the stock was smaller than they had believed, which meant that landings were too high and needed to be reduced.

The story starts in August 2023, when the ASMFC and the Mid-Atlantic Fishery Management Council traditionally hold a joint meeting to set the next year’s specifications for various species, including black sea bass.  Black sea bass have proven to be a very difficult species to manage, with recreational overages so hard to control that fishery managers effectively stopped trying.  The initial impetus behind developing the Percent Change approach was a desire to stop the chronic tightening of black sea bass regulations (one could argue that NMFS should have been focused on stopping the chronic recreational overharvest that required such tightening, but managers apparently lacked the will to take that job on, even though the tools to do so were readily available).  So, in August 2023, instead of suggesting the deep recreational harvest reductions that traditional management would have called for, Council staff ran the numbers through the Percent Change matrix, which advised that only a 10 percent landings reduction would be required.

But a 10 percent reduction is still a reduction, so managers found a way to avoid it, saying that the Percent Change approach contemplates having the stock assessment updated every two years, and since 2023 marked the third year without an assessment (because the planned assessment was late), black sea bass regulations for 2024 should remain unchanged, because a new assessment would be out that year, and managers could then adopt new regulations, if needed, for 2025.

A research track stock assessment passed through the peer review process in late 2023, and in the early summer of 2024 a management track assessment used that assessment’s methodology to provide an estimate of the spawning stock biomass, the biomass target, etc. for 2025.  It was passed on to the Mid-Atlantic Council’s Scientific and Statistical Committee which, in accord with Magnuson-Stevens, set the Acceptable Biological Catch for 2025, which set the upper limit for landings allowed by the Council.

But to managers’ dismay, the stock assessment found that both the spawning stock biomass and the biomass target were more than 20 percent lower than they had believed, and the Mid-Atlantic Council’s Scientific and Statistical Committee determined that black sea bass landings ought to be reduced by 20 percent.  So, suddenly, the same managers who didn’t want to take any management action until a new stock assessment came out decided, once they saw what the stock assessment said, that they didn’t believe the peer reviewed stock assessment that they’d been waiting for, and instead ought to maintain 2025 landings at 2024—or was that 2023?—levels, rather than implement the recommended reductions.

Now, they felt that, before any changes were made, they ought to wait for the assessment update scheduled for 2025.

So the ASMFC’s Management Board voted to maintain the status quo, while the Mid-Atlantic Council, bound by the strictures of Magnuson-Stevens, adopted its Scientific and Statistical Committee’s recommendations.  But the Council’s actions didn’t matter, because the regional office decided that it had the power, in order to avoid a split in state and federal regulations that might harm federal permit holders, to also leave the black sea bass regulations unchanged.

That seemed to violate the provisions of Magnuson-Stevens, but the regional office literally decided that the law did not apply to them.  It decided that, while Magnuson-Stevens said that the Council couldn’t adopt catch limits higher than the level set by its Scientific and Statistical Committee, there was nothing in the law that said that NMFS couldn’t ignore that Committee’s advice.  And while the law said that the only thing that NMFS could do was approve, disapprove, or partially approve a management plan or plan amendment, and not substitute its judgment for that of the Council, NMFS decided that annual specifications were neither an plan nor an amendment, and thus NMFS could adopt whatever specifications it chose, regardless of the Council’s actions.

In the end, that means that NMFS not only ignored the best available scientific advice for the 2025 black sea bass season, but that it probably feels free to ignore such advice in the future, regardless of species, if it thinks that it has a good reason to do so.

Which bodes ill for Magnuson-Stevens.

PARTING THOUGHTS

Perhaps I should have mentioned the 2024 election in the list of bad outcomes, as it ushered in an administration that proved itself hostile to fisheries conservation its first time around, and a Congress that is also likely to be very hostile to conservation efforts, very friendly to the commercial and recreational fishing industries, and can probably be expected to weaken, and very possibly to severely weaken, the National Marine Fisheries Service and federal fisheries management.

But I’ll address that sort of thing next Thursday, when I take a look at what 2025 might bring.