ADMINISTRATION SEEKS TO WEAKEN PROTECTIONS FOR FISH, SEA TURTLES, AND MARINE MAMMALS

On July 2, the National Marine Fisheries Service issued a press release which said, in part,

“The United States is a global leader in sustainable fisheries management.  Our participatory, science-based system under 50 years of the Magnuson-Stevens Act has shown that we know how to rebuild stocks and keep them healthy.”

The problem is, that science-based fisheries management, rebuilding stocks, and keeping stocks healthy tends to hold down short-term profits, even if it might maximize long-term economic returns.  Thus, the press release continued.

“But despite this foundation, our seafood sector has faced growing pressure from global competition and evolving market demands.  Americans want American seafood, but our landings have decreased since 2019.  We need to put U.S. seafood first.

“In fisheries, as in life, results are what matter.  That is why I am eager to share the regulatory actions we have prioritized in response to the President’s Executive Order on Restoring American Seafood Competitiveness.  We received input from 787 individuals and organizations, as well as detailed action plans from each of the regional fishery management councils.  I believe this volume of input underscores the urgency of our shared mission and I am grateful to everyone who contributed.

“After considering all input from councils, fishing industry, and the public, we have prioritized actions—many of which align with Council identified priorities—we believe will reduce burdens on domestic fishing, increase production, stabilize markets, improve access, and enhance economic profitability.”

In other words, all that science stuff—and the regulations that the science supported—was good for the fish, but now we’re going to set it aside, at least in part, so that we can do things that will be good for the fishermen (at least until 2028, after that, we don’t really care).

Appended to the press release was a list of 28 regulatory priorities, arranged by the relevant regional fishery management councils.  The priorities fell into basic groups: 

·       Allow fishing in currently closed areas (3)

·       Make it easier for fishermen to kill more and/or smaller fish (8)

·       Reduce industry monitoring requirements (2)

·       Reduce protections for endangered and/or protected species (5)

·       Increase commercial fishing efficiency (3)

·       Address shark and dolphin depredation (1)

·       Shift stocks to state management (3)

·       Better reflect multiple councils’ interest in fisheries (1)

·       Adjust individual fishing quotas requirements (1)

·       Minimize dead discards (1)

While the proposals aren’t all bad—it’s hard to quibble with an effort to extend the use of descending devices to combat barotrauma in the Gulf of Mexico recreational reef fish fishery, and arguments could probably be made to support moving management authority for queen conch and spiny lobster, two species generally encountered inshore, from federal to territorial authority—the general tenor of the proposals is to increase the risk to both targeted fish species and to species protected under laws such as the Endangered Species Act and Marine Mammals Protection Act—so that commercial fishermen can land more fish more efficiently, and thus more profitably, although there are a few priorities that would enrich the recreational fishing industry, too.

Not surprisingly, considering Friday’s announcement that destroying an endangered species nest or habitat would no longer be considered “harm” to such species, which will now allow farmers, ranchers, real estate developers, extractive industries, and other similar environmentally-damaging industries to damage, or even totally remove, the habitat an endangered species needs to survive, the proposed changes would fall most heavily on what NMFS deems “protected species” that is, species that are either listed under the Endangered Species Act or Marine Mammals Protection Act.

Of those, the proposed changes that will draw the most immediate attention are the suggestions that the New England and Mid-Atlantic fishery management councils

“Deprioritize advancing requirements for ropeless gear”

intended to prevent fatal gear entanglements with endangered northern right whales.

It’s a proposal that the councils are likely to quickly accept, as the fishermen sitting on those management bodies aren’t particularly eager to adopt regulations that will be costly to the industry.  Yet, a few years ago, the United States Marine Mammal Commission reported that

“To date, there is no evidence that…regulations have been effective…right whale deaths attributed to fishing gear have increased substantially since rulemaking efforts began in 1997.  Whereas there were two confirmed deaths linked to entanglements from 1990 through 1999, there were eight from 2000 through 2009, and eleven from 2010 through 2016.  How many additional deaths go unrecorded is unknown, but it could be half to two-thirds of all deaths.”   

Most of the deaths are associated with lobster trap and gill net buoy lines, so rules requiring ropeless gear, that would eliminate the buoy lines, would have a substantial and positive impact on right whale mortality.

And, while the Marine Mammal Commission report was nearly a decade old, it does not appear that the threat of buoy lines has abated.  A young right whale that washed ashore on Martha’s Vineyard in January 2024 was found to be a victim of entanglement with a Maine lobsterman’s gear.

Sean Hayen, Protected Species Branch Chief for the Northeast Fisheries Science Center, reportedly said, in 2023, that

“We have not documented a natural mortality in North American right whales in decades.”

Instead, all recorded mortality was due to either ship strikes or gear entanglement.  And with the National Marine Fisheries Service flatly stating that

“The North Atlantic right whale is one of the world’s most endangered large whale species,”

with a total population of about 380 animals, which includes only 70 reproductively active females, one would think that NMFS, and the regional fishery management councils, should be doing as much as they can to keep entanglement numbers down.

However, fishermen complain that the ropeless gear needed to reduce entanglements is

“too time consuming and expensive.”

One argued that

“if I spend a third of my day rigging these acoustic releases [on ropeless gear] that takes even more off the bottom line…Rigging 800 traps could cost more than half-a-million dollars.”

So it is hardly surprising that this administration, which seems to value natural resources only for the profits that they might generate, would seek to resolve the conflict by reducing the burden on fishermen selling their catch, rather than by protecting the right whale, which can neither be harvested nor sold, from a very real risk of extinction.

The administration seems to be expressing similar sentiments in the Pacific, where it seeks to lift protections from non-marketable leatherback turtles, proposing that the Western Pacific Fishery Management Council

“Remove shallow-set longline leatherback hard cap and strike two turtle trip limit.”

Currently, the shallow-set longline fishery off Hawaii is only allowed to kill 16 leatherback turtles each year; should the fleet reach that limit, it may not fish for the rest of the year.  Similarly, if a vessel catches two leatherback in a single trip, it must stop fishing, return to port, and may not return to fishing until it has met requirements making additional turtle bycatch less likely.

But turtles, like right whales, have no price on their heads, so the administration couldn’t care less whether they live or die, and wants to see the bycatch limits abolished.

Another troubling trend in the proposals would reduce monitoring of fishermen, whether at sea or shoreside, providing more opportunities to dump protected species offshore, fail to report bycatch of regulated species, and otherwise evade current conservation measures.

For example, in the administration directed the New England Fishery Management Council to

“Rescind Industry Funding Monitoring requirements.”

NMFS’ ability to require industry-funded monitoring became a hot issue, particularly for conservative “anti-administrative state” campaigners, a few years ago, when monitoring requirements imposed on the herring fleet led to the case of Loper-Bright Enterprises v. Raimondo making it all the way to the Supreme Court, where the Court overruled the so-called Chevron Doctrine, that had allowed agencies to interpret the law applicable to their area of expertise when its language was ambiguous.  

While that ruling, which left all statutory interpretation to the courts, was a big win for the anti-regulatory crowd, it was a pyrrhic victory for the plaintiffs, as the lower court looked at the law and came to the same conclusion that NMFS had:  The agency had the right to require industry-funded monitoring of the herring vessels.  That decision is currently being appealed.

The court’s decision made the administration very unhappy.  So on May 1, Eugenio Pineiro Solar, the NMFS chief, wrote a letter to Cate O’Keefe, the Executive Director of the New England Council, which said, in part,

“we note that the Council considered, but did not recommend, revisiting the industry-funded monitoring (IFM) program developed for the Atlantic herring fishery.  For the reasons provided below, we respectfully request that the Council reconsider this decision and agree to proceed with a Council action to revise and potentially withdraw the IFM provisions for the herring fishery.”

The letter then claimed that NMFS didn’t have the resources to support the herring monitors, and were unlikely to have the resources to support the monitoring in the future (because the administration and Congress failed to adequately fund NMFS science and survey programs, although the letter, very predictably, never mentioned that).  Thus, the program couldn’t achieve its goals, including obtaining

“accurate catch estimates for incidental species with catch caps (haddock and river herring/shad,”

which raises the old question of whether, if a herring trawler accidentally catches a bunch of regulated fish and then dumps them at sea, with no observer watching, did anything really die?

The administration apparently believes that the answer to that question is “No,” and they’re really unhappy about the New England Council’s stance, because

“herring fishery participants have expressed concerns about the potentially high level of costs of IFM in relation to the recent low level of biomass and the low productivity rate of Atlantic herring.”

Now, some might believe that observers become more important when a stock is overfished, both because of a more pressing need to accurately monitor herring landings, and because the extended hunt for herring might lead to the fleet generating more bycatch along the way, but the administration seemingly has no such fears.  Thus, it threatened the New England Council to take the matter out of its hands.

“If the Council is unable to initiate an action within a reasonable time, the Secretary is authorized to prepare an amendment to rescind these measures.”

Whether NMFS can actually carry out that threat depends on the interpretation of one provision of the Magnuson-Stevens Fishery Conservation and Management Act, which allows the Secretary to prepare an amendment if

“the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management.  [emphasis added]”

There is supreme irony here.  The crux of the Loper-Bright case was the agency’s, and eventually the court’s, interpretation of another provision of Magnuson-Stevens, which allowed NMFS, through its fishery management plans, to adopt any non-specified provision that was “necessary” for the conservation and management of a fishery.

In that case, NMFS found that the industry funded monitoring in the Atlantic herring management plan was, in fact, “necessary” to manage the fishery, and has, so far, has successfully defended that decision in court.  But now, using a different provision of Magnuson-Stevens, the same agency is claiming that it is “necessary” to withdraw the same provision that it had previously deemed “necessary” to manage the fishery.

And at one time, maybe it could get away with doing that, interpreting the relevant provision in a way that favored its position.  But now that Loper-Bright took away the agency’s power of interpretation, it would be up to the courts to decide whether it is now “necessary” to repeal a “necessary” provision of the Atlantic herring management plan.  So, if the agency goes forward with the Secretarial amendment, and some environmental groups sues, who knows what a court might decide.

It’s all a bit of a circus, but again, we’re talking about the current administration’s fisheries policies, so that is no real surprise.  Common sense left the building a long time ago.

A more ambiguous set of proposals would increase the “fishing power” of the commercial fleet.  Right now, many fishery management plans created by the New England and Mid-Atlantic fishery management councils allow permit holders to only upgrade to slightly larger and more powerful vessels, restrictions that are intended to

“[maintain] fleet diversity and limiting capacity”

of the fleet to harvest fish.  Current restrictions limit upgrades to vessels just 10% longer, and with 20% greater horsepower, than the vessel that was originally issued the permit.

The administration proposal to the New England and Mid-Atlantic councils to

“Evaluate vessel baseline restrictions”

would upset the current equilibrium.

It wouldn’t necessarily lead to more fish being caught, so long as quotas and state trip limits remained in place, although it might make it easier for the commercial fleet to catch their entire quota in fisheries where that doesn’t always happen today.  What it would probably do is lead to quotas being filled earlier, and season closed sooner, something that would probably favor the larger boats that are capable of bringing more fish to market at one time than older, smaller vessels, and thus frustrating the original goal of “maintaining fleet diversity.”

But bringing more fish back to the dock on each trip isn’t necessarily a good thing for the commercial fleet, for while it would satisfy the administration goal of increasing commercial landings, as well as increasing efficiency, it probably would also depress fish prices.  As greater volumes of fish hit the market at the same time, the commercial fleet might well find itself in a position where it is catching more, but earning less.

And that’s probably enough talk about proposed commercial changes, although there are certainly more that could be discussed.  The few recreational proposals also need to get some attention.

Not surprisingly, the South Atlantic Fishery Management Council was directed to

“Support state agency-led exempted fishing permits for red snapper.”

I’ve already discussed such permits on multiple occasions, explaining why, as currently proposed, they are an incredibly bad idea, a conclusion that has also been reached by a federal judge who has temporarily enjoined NMFS from allowing any fishing subject to the EFPs that it had already issued.  It doesn’t seem to make sense to instruct the South Atlantic Council to support what has already been deemed an illegal act, but I suppose the hope is that the states will reapply to NMFS, which is already happening, and that NMFS will issue new exempted fishing permits that aren’t quite so obviously illegal, and might just stand up to judicial review if the case happens to be assigned to the right judge (which undoubtedly means one of the less capable and less independent jurists among those appointed by the current administration).

The South Atlantic Council was also directed to

“Address shark and dolphin depredation,”

which was kind of a strange proposal.

It’s not that depredation isn’t an issue; it’s one of the hottest issues in recreational fisheries management today, particularly in the South.

It’s just not clear what the South Atlantic Council can do about it, given that it doesn’t have clear management authority over either sharks or dolphin.

What the South Atlantic Council does have is management authority over the fish that are being depredated, but it’s not likely that they’re going to amend its Snapper Grouper Fishery Management Plan with a provision that says something like,

“Recreational fishing vessels engaged in angling for any species managed under this plan may keep a firearm on board, which may be used to shoot and kill any marine mammal that attempts to depredate an angler’s catch,”

or something similar relating to sharks and harpoons.

It’s equally unlikely that the Council would add a provision to the effect that

“Anglers experiencing shark depredation must immediately move their boat to another location at least one mile from the place where the depredation event occurred,”

as the first two suggestions would be patently illegal, while the third would have anglers up in arms.

Thus, directing the depredation proposal to the South Atlantic Council made no sense at all.

But then, I already observed that common sense has left the building.

Unfortunately, sensible or not, the new list of proposals is just one more step toward the current administration’s goal of dismantling a federal fishery management system that has served the nation well for at least the past quarter-decade, and arguably for a full 50 years.

And the sad thing is that, unless a control shift in Congress provides a counterbalance to the administration’s deregulatory ambitions, that federal management system that “has shown that we know how to rebuild stocks and keep them healthy” might not survive until common sense hopefully reenters the building sometime around January 16, 2029.