FISHERIES CONSERVATION: POLITICS, PARTIES AND PEOPLE

Fishery conservation and management is, in the end, a political process.  We might like to think that it’s driven by science, and in the best case it is, but usually that only happens after legislators fed up with failure pass laws that require science-based management actions.  Without such legal mandates, political pressure and short-term economic concerns too often rule the day.

That being the case, I’ll often comment about the effects of elections on the fishery management process.

I last did that after last year’s mid-terms, when a change of control in the House of Representatives seemed to provide hope that the federal fishery management system, and the Magnuson-Stevens Fishery Conservation and Management Act, would escape major damage at the hands of those who care more about boosting their earnings for the next quarter than in boosting fish populations for the next generation of anglers.

When I wrote that piece, I spent a lot of time discussing trends, and not much time discussing parties.  I caught a little bit of flak for that, with one of my readers commenting

“…is there are reason you specifically avoid naming the party that is inherently better and more trustworthy when it comes to fisheries management?

“I’m not a Dem cheerleader by any means…but let’s be more explicit about what happened on election night:  the party that is a substantially and materially better steward of public space and ‘the commons’ won out.  The party that believes in climate change and mitigation thereof (however poorly) won out.  To not name names is understandable given perhaps the audience or medium you write in, but I think it would display some honesty…”

While I understand that reader’s point, I disagree with his approach.

After the 2016 Presidential election, I made some dire prediction based not on party, per se, but on the victor’s declared intent to reduce regulations, coupled with the platform he ran on, that read, in part,

“We are the party of America’s growers, producers, farmers, ranchers, foresters, miners, commercial fishermen, and all those who bring from the earth the crops, minerals, energy and the bounty of our seas that are the lifeblood of our economy…Only a few years ago, a bipartisan consensus in government valued the role of extractive industries and rewarded their enterprise by minimizing its interference with their work.  That has radically changed.  We look in vain within the Democratic Party for leaders who will speak for the people of agriculture, energy and mineral production…  [emphasis added]”

Deregulation, whether it impacts water quality or the activities of fishermen themselves, has never done our fish stocks any good, and it’s probably fair to say that the size and health of fish stocks can be generally predicted by the existence of comprehensive, science-based regulations.

Unfortunately, my 2016 prediction has held up pretty well, with the current administration already making bad decisions with respect to Gulf of Mexico red snapper, New Jersey summer flounder and perhaps, most recently, New England herring stocks.  Not to mention its current plans to allow the exploration and development of gas and oil deposits off the East Coast of the United States, along with the related seismic testing.

Down in the Chesapeake Bay, this administration’s failure to enforce clean water standards throughout the Bay watershed is causing real harm to fish and other marine resources, along with the industries that they support.

Yet, when I write about such problems, I level my criticism at the people who craft the bad policy, and not to the party to which they belong.

That’s because, despite the high level of partisanship existing today, I continue to believe that fishery management is, in the end, a bipartisan issue, and that there are good people in both parties who understand the need for clean water and healthy fish stocks.  I can’t forget that, in the end, there were 15 Republicans who had the integrity to buck their party’s line and vote against H.R. 200 in the last Congress, and 9 Democrats who succumbed to industry blandishments, and supported that awful bill.

I refuse to slam the door in the face any person with the courage to do the right thing, just because they belong to the “wrong” party, or to give anyone a pass for a bad vote just because they happen to belong to a party that, on the whole, often votes the right way.

Getting good fishery conservation measures passed into law is hard enough; we can’t afford to turn anyone away just because of their party affiliation.  We must embrace everyone who is willing and able to advance our cause.

The latest, and one of the most surprising, examples of that truth has recently emerged down in Florida.

Last November, Ron DeSantis, a conservative Republican, barely edged out Andrew Gillum, a progressive Democrat, in the race to be Florida’s next governor.  The win caught many by surprise, as most polls had Gillum with a slight lead going into the election. 

For those who clung to traditional party stereotypes, the win seemed to bode ill for conservation-related issues, particularly the water quality crisis that had taken hold of much of the Florida coast.  Agricultural and other waste has long flowed into Lake Okeechobee, and from there into coastal estuaries, triggering toxic algae blooms and major fish kills.  The natural flow of fresh waters from Lake Okeechobee into the Everglades and Florida Bay has been diverted, largely to appease large sugar growers.  And, this year, one of the worst red tides on record devastated much of Florida’s Gulf Coast, killing fish, marine mammals, turtles and just about anything else that swam through the affected waters.

Not only the environment, but people and businesses, suffered badly.

Gillum had been endorsed by the Sierra Club and the Florida Conservation Voters.  He was expected to tackle the water issues head-on if he won.  DeSantis, on the other hand, was looked at askance by conservationists; he admitted philosophical differences with “liberal environmentalists,” and made a number of statements that led people to believe that, if elected, he would continue former Governor Rick Scott’s devastating cuts to Florida’s environmental protection programs.

But that doesn’t seem to be what he’s doing.

On January 10, the Fort Myers News-Press reported that

“A day after his inauguration, Ron DeSantis began a three-stop tour in Southwest Florida, still reeling from crisis-level toxic algae and red tide, to unveil a multifaceted executive order on water policy vastly different from his predecessor’s.  Later that afternoon, the dramatic action continued as he asked the entire board of the South Florida Water Management District to resign.

“Among the highlights of his order:  $2.5 billion for Everglades restoration and water protections—the highest level of restoration funding in the state’s history—a blue-green algae task force, creating a chief science officer position, phasing out septic tanks, putting teeth in environmental crime enforcement and creating an office of resilience and coastal protection to fund and coordinate response to rising sea levels.”

There’s no doubt that, if DeSantis carries through with that effort, Florida’s waters, and the fish that depend upon them, will be far better off than they are today.

If you’re the sort of person who lives their life based on stereotypes, none of that could be possible, because a conservative Republican just would not do such things.

But it seems that DeSantis is doing them.

We don’t know why he’s taking actions that fellow Republican Governor Scott refused to do.  Maybe the stereotypes don’t apply, and he just wants to see Florida’s water quality improve.  Or, perhaps, some of the stereotypes are right, and he’s all about business, but has figured out that in a tourist-dependent state like Florida, business isn’t going to do too well if sunbathers are forced to share a beach with dead sealife, and visiting anglers find more fish floating on the surface of the bay than they find on their hooks.

But in the end, it’s actions, not motivations, that matter.  DeSantis appears to be doing what needs to be done.

Which is why, to successfully manage our living marine resources, we need to focus on people, not party, and then motivate those people—whatever that takes—to do right by our fish, our seas and our future.

CAN CHESAPEAKE STRIPERS CATCH A BREAK?

Chesapeake Bay is the single most important place in the world for Atlantic striped bass.

The benchmark stock assessment released in 2013 noted that

“Tributaries of Chesapeake Bay, most notably the Potomac River, and also the James, York, and most of the smaller rivers on the eastern shore of Maryland, are collectively considered the major spawning grounds of striped bass…”

and anyone who has spent the last three or four (or more) decades fishing for stripers has probably noticed that the Maryland young-of-the-year index seems to be the most reliable predictor of future striped bass abundance.

That being the case, one might suppose that fishery managers would take particular care to protect both the big females that spawn in the Chesapeake rivers, and the immature fish that sometimes abound in Bay waters before they have recruited into the spawning stock, but it turns out that neither of those suppositions are true.

The Atlantic States Marine Fisheries Commission’s first striped bass management plan, released in 1981, noted that

“Many states adopted larger minimum sizes and other restrictive regulations to conserve the stocks. Maryland instituted a 15 pound maximum in the early 1930’s, which was changed to a 32 inch [total length] maximum in the mid 1970’s, but stayed with an 11 inch [total length] minimum until 1957 when 12 inches [total length] was instituted.  In a package of new and revised striped bass regulations put into effect in 1980, the minimum size in the Upper Bay only was raised to 14 inches [total length] from June through October.”

Those were the commercial rules, and apparently the best that Maryland could do.  At what was close to the depths of the last stock collapse, they were willing to limit harvest—but only in part of the Bay, for part of the year—to a two-year-old fish, that only would have had to live for another four or five years before it could, perhaps, start to replenish a population that had already headed most of the way downhill.

Recreational fishermen were held to somewhat less restrictive limits; the same pioneering stock assessment tells us that

“The age classes taken in the recreational fishery are much the same as those described in the commercial section…However a trophy fishery for the large fish is permitted.  Beginning in 1962 the sport fisherman was allowed to take one striped bass per day over 15 pounds during the period May 15 to March 1 (presently 32 inches [total length], May 1 to March 1.”

Thus, unlike the commercial fishermen, recreational fishermen weren’t limited to immature and newly matured striped bass; they were permitted to harvest some of the oldest, most fecund spawners, too.

As a result of such liberal regulations,

“In 1962 both [the commercial and recreational] fisheries depended heavily on four year olds from the dominant 1958 year class and the sport fishery took significant numbers of the strong 1960 year class as well.  In 1976 the recreational fishery took primarily the already heavily fished 1970 year class from around the Bay Bridge.  Smaller fish were taken in other areas.”

After 1970, the striped bass didn’t have another dominant year class for nearly two decades, and it’s hard not to wonder whether that would have been the case if the Chesapeake fisheries hadn’t “depended heavily” on bass that were still too young to spawn.

Amendment 3 to ASMFC’s striped bass management plan brought a little tough love to fishermen everywhere, and even in Chesapeake Bay, the cradle-robbing came to an end for a while, as fishery managers in every state came together to bring back the stock.  For the first and only time in the history of striped bass management, everyone was on the same page and protecting the same size class of fish.

But as soon as the enforced abstinence began to pay off, Amendment 4 to the management plan, adopted in 1989, allowed “producer” areas, such as Chesapeake Bay, to drop their minimum sizes, arguing that such smaller minimums

“are necessary for the maintenance of historical fisheries on native fish which have primarily small fish available to them.”

The contribution that such “historical fisheries” made to what must also be deemed a collapse of “historical” proportions was not discussed in the Amendment.  And the harvest of immature fish began once again.

So for striped bass, Chesapeake Bay—the place that, given its importance to the health of the bass population, should see some of the most conservative and best-thought-out management on the coast—is once again a perilous place to be.

After the 2013 benchmark assessment advised that striped bass landings should be reduced by 25%, ASMFC began the process of drafting Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan.  

Almost all of the states saw the need for the catch reductions and jumped right on board—or, at least, almost all of the coastal states did.  While the vote to reduce harvest passed, there were four jurisdictions opposed:  Maryland, the District of Columbia, Virginia and the Potomac River Fisheries Commission—all four of the jurisdictions that abut Chesapeake Bay.

Comments by Kyle Schick, the Legislative Proxy from Virginia, pretty well summed up the Bay jurisdictions' arguments.

“We don’t have to stop [fishing above the target fishing mortality rate] in one year; we don’t have to do such a drastic thing over three years.  We need to do something, but I don’t think that the economic impact that this is going to catch—and recreational fishermen, they don’t want to go to one fish.  They don’t want to have this huge catch reduction.  They may talk about it now, but we’ll see what happens.  Right now we have marinas that have been going out of business at the highest rate in history; the same thing with tackle shops.  It doesn’t have anything to do with the lack of catching rockfish; I can tell you that right now.  That statistic is way off.”

“Economic impact,” not biological impact, you might note...

You could almost hear the Spirit of ’76—1976, that is, when what had been the big 1970 year class, “already heavily fished,” was pounded hard around the Bay Bridge—pass through the meeting room.

In the end, ASMFC’s Atlantic Striped Bass Management Board tried to be kind, and made a special concession to the folks on the Bay, allowing them to reduce their harvest by only 20.5%, and to use 2012, rather than 2013, as their base year.

But, as so often happens when such concessions are made, the Management Board’s good deed did not go unpunished. 

While commercial fishermen in the Bay made the required harvest reductions, the recreational fishermen didn’t come close.  Instead of cutting back, they actually increased their landings by 35%.

To say that the Bay states were unrepentant for missing their mark would be an understatement.

At the October 2016 Management Board meeting, Phil Langley, representing the Maryland Charterboat Association, complained that

“the charter-recreational fishery is being squeezed into part of Year 4 and part of Year 5 fish,”

and asked that restrictions be eased.

Robert T. Brown, of the Maryland Watermen’s Association, said that

“To me, the 20.5 reduction in the Chesapeake Bay, we were trying to be politically correct instead of a common sense approach to fish and management…

“Mother Nature, on its own, limits the upper size of the fish during the migration of the spawning stock, because 95 percent of the fish 24 inches and greater migrate out of Chesapeake Bay back to the ocean.  This shortens the window of harvestable size fish 20 inches to 24 inches, a four inch window that we pretty much have.

“This has caused economic hardship on our charterboat fisheries as they cannot catch their two fish per person limit during the regular season…”

Which is an interesting argument, because if you take it at face value, harvest somehow spiked even without folks limiting out…

But then, some folks always want more.

And some people are fine pushing the burden of conservation onto other folks’ shoulders.  Despite the recreational overharvest in Chesapeake Bay, overall striped bass landings met the required reduction because coastal anglers reduced their harvest far more than the required 25%.  Thus, when questions were raised about the Bay overage, Michael Luisi, the state fisheries administrator for Maryland, got his back up a bit, saying

“When we see numbers, an increase in harvest of 58.4 percent in the Chesapeake Bay [which revised recreational landings estimates have reduced to “only” 35 percent], it kind of leads I think, board members to believe that Maryland and Virginia, Potomac River may not have contributed to the successful management…Did the Technical Committee intentionally not make any comments regarding this performance being a basis for success?”

Later he went on to say that

“The actual written report that we have in our briefing materials speaks to the emergence of the 2011 year class.  It reads that ‘the harvest in the Bay in 2015 was undoubtedly lower than it would have been, had regulations remained status quo.’  I just wanted to make that comment, because I believe it strengthens what was reported as kind of a likely reduction.”

In other words, “Forget that we failed to meet our obligation to reduce harvest, and actually increased our landings.  We could have done even less, and caught even more…” 

In fact, the regulations imposed pursuant to Addendum IV weren’t even in place for a year when fishery managers from the Bay region began their effort to have them relaxed.  By the November 2015 Management Board meeting, Michael Luisi of Maryland had already put a motion on the floor to

“initiate an addendum to reconsider the reduction options in Addendum IV for the 2016 fishing season in the Chesapeake Bay based on the results of the 2015 assessment update and retrospective projections.”

He said that

“I think some people—I know a lot of my stakeholders are under the impression that this addendum was a one-year plan to get fishing mortality to the target and they’re expecting that there be some consideration of relief.”

That’s a somewhat ridiculous argument on its face—sort of like a dieter who, having cut back on meals for a year in order to reach their target weight, says “OK, I’ve lost forty pounds.  Now I can go back to eating nothing but Dunkin Donuts, ice cream, Big Macs and pizzas—four times a day.”

Because reductions don’t mean a thing unless, once you’ve reached your goal, you continue the behaviors that got you there in the first place.

Yet, no matter how ridiculous, Michael Luisi’s efforts to increase the Chesapeake kill were supported by Robert O’Reilly, his counterpart in Virginia, who argued

“We always stayed within the guidelines that the board had [except, of course, the requirement to reduce anglers’ landings in accord with Addendum IV]; and, quite frankly, there has been opportunities missed already on the 2011 year class, if everyone doesn’t know that.  These fish are pushing out into the coast at a trickle to some extent that will turn into much more than a trickle as we go through this process…”

Those comments sum up what has always been the predominant striped bass management theme in the Bay states, a perceived need to kill off as many immature fish as possible can before such fish enter the coastal migration and so are “lost” to Chesapeake fishermen.

But there is good reason to question whether such “need” really exists.

In December 2018, something called the “Invitational Pigzilla Tournament” was held in Virginia Beach.  Striped bass were the target.

The tournament ran for a month, and the number of big fish killed would have done credit—if “credit” is the right word—to Montauk, Cape Cod or Rhode Island during peak season.  

The winning fish was 60 lbs. 11 ounces, and fish over 50 filled the next 20 places.  The smallest prize winner—and they pay out 30 places—weighed 41-0, and even the five “Junior Angler” prizes went to fish between 57-8 and 53-11.

To put that in context, the winning bass at last year’s Martha’s Vineyard Striped Bass and Bluefish Derby, also a month-long event held in what is supposedly “big bass” territory at the best time of year, was only 39.20 pounds.

The first reaction a lot of bass anglers will have when they see the “Pigzilla” results is to wonder whether it’s really necessary to kill so many of the biggest, prime breeders when the stock is in iffy shape.

The second reaction should be to ask if, with so many large fish available to Virginia anglers, there is a need to kill the small ones at all.

True, the big bass aren’t generally available to Bay anglers during the summer, but the fact is, given the current state of the stock, they’re not available to coastal anglers in most other places, either. 

Here on the South Shore of Long Island, there is no viable summer striped bass fishery.  In 2018, we got a shot of big bass for maybe two weeks in late June and early July, but not much outside that until the very end of October, when a sand eel bite lasted for three or four weeks.  Outside of that, it was a very quiet season.  

I belong to a fishing club with nearly 100 members, most of whom are active and talented anglers.  Every October, it awards a modest prize for the largest striped bass weighted in.  This October, the prize went unclaimed, with not a single striped bass weighed in.

And the dearth of fish wasn’t limited to the South Shore.  Out in Montauk, the surfcasting community holds its annual Korkers Cup contest on Columbus Day weekend, traditionally one of the best times to catch a striped bass on Long Island’s East End.  Many surfcasters from all over Long Island, and beyond, attend. 

In 2018, for the first time, not a single striped bass was weighed in.

That’s not a good sign.  But more, it is testimony to the fact that, even here on the coast, except for a few select locations, we don’t have any better chance to catch as summer striped bass than Virginia anglers do.  Yet no one allows us to keep 20-inch stripers as a means to assuage our pain.

So the question is, why are Chesapeake anglers allowed a fishery based on hundreds of thousands of little fish, and then allowed to kill big spawners, too?

I was going to end there, with a rant, but just this morning, I heard some encouraging news that makes me hope that, finally, we might see a change for the better.

Someone posted on Facebook, saying in part that

“At the [Virginia Marine Resources Commission Finfish Management Advisory Committee] tonight we were informed that VMRC has been ordered by the Virginia Secretary of Natural Resources to implement a maximum size limit (around 36 inches or so) for striped bass…”

I don’t know if that statement is true, but I have crossed paths with Virginia’s Secretary of Natural Resources before, when he held a previous post, and so know for a fact that he understands the need for good fisheries management and is willing to work hard to achieve it.  Thus, I have reason to hope that the report is accurate.

Because you can probably manage a small-fish fishery successfully, if that’s what you want, and you can sustainably manage a big-fish fishery, too.

But for a very long time, “burning the candle at both ends” has been seen as a sure way to go down in flames.

By snuffing out one end of the candle, and ending its kill of big spawners in Chesapeake Bay, Virginia would be taking a big, needed step to help out the troubled striped bass population, and would create an example that Maryland, if it had any sense, would be quick to follow.

It’s certainly a good idea.  Let’s hope that its time has, in fact, come.

SLOT LIMITS NO PANACEA FOR SUMMER FLOUNDER

The summer flounder population has been in a decline. Such decline is due, in large part, not to overfishing (although modest overfishing has occurred in one or two recent years), but to at least six consecutive years of below-average recruitment of young fish into the flounder population.

Biologists haven’t yet figured out why such low recruitment is occurring. Some sort of unfavorable, and hopefully transient, oceanographic condition is the likely culprit, but exactly what that condition might be, no one really knows.

On the other hand, over the past few years, there has been a persistent drumbeat of non-scientific opinion, which seems to have originated somewhere in the New Jersey angling community, that blames the poor recruitment on current recreational fishing regulations, and more particularly, on size limits that result in most of the recreational harvest being composed of female fish, which grow larger and faster, and live longer, than males.

An article that appeared in a New Jersey fishing magazine is typical. It claimed that “blame must be assigned to any management strategy that forces us to target spawning class females exclusively. It’s crazy; we’re talking about biological suicide! Basic logic, and good common sense, would indicate that a smart management plan should allow angler retention across a broad spectrum of year classes and sizes rather then keying us into this cubbyhole where we now find ourselves.”

The author of the article also argued that “NMFS is mismanaging this totally rebuilt fishery so badly that if we continue down this road we will in fact be in trouble again soon. The regulatory inspired discards are deplorable and any manager that continues to allow this to continue is in my opinion displaying a despicable lack of responsibility to the resource.”

But while that language is all couched in concern for the resource and a seeming desire to protect the summer flounder spawning stock, the same writer also complained that

“the problem is that the sizes we used to keep, and that once made up a good portion of our seasonal catches, are now off limits. Face it, most fluke have always been around 16 to 17 inches long. Back in the day and in a ‘newly rebuilt’ fishery they are still roughly the same size. Contrary to the preservationist theory, preventing public access to fluke will not create a sea full of halibut! One might say that fluke fishing is generally fine; however, it’s fluke keeping that’s our problem.”

Thus, there’s more than a little reason to suspect that the real motivation behind calls for a fluke “slot limit,” which sets a minimum and a maximum size limit that would permit anglers to keep smaller fish than they are allowed to retain today, was to increase the harvest rather than the spawning stock biomass. Nonetheless, the concept has always been veiled in terms of conservation and better science.

The current summer flounder management plan doesn’t permit the use of slot limits in federal waters. At its December 2018 meeting, the MAFMC discussed the merits of including the use of slot limits in such management plan.

Prior to the meeting, MAFMC members were provided with an analysis of the possible benefits and drawbacks of using slot limits to manage the summer flounder fishery. According to such analysis, from a biological perspective, slot limits don’t fare very well.

The analysis didn’t consider any particular set of slot limits. It addressed both the situation where all summer flounder kept by fishermen must fall between an established minimum and maximum size, and that described in an article published in Delmarva Now, a Delaware news outlet, which noted that “many anglers point to a slot season, where anglers might keep a couple smaller (and potentially, male, flounder) along with one large fish per trip.”

It turns out that such combination of a slot limit plus an additional “trophy” fish may create the worst situation of all.

As explained in the materials provided to MAFMC members, one study

“compared to a standard minimum size limit, the slot limit options considered would ‘certainly result in greatly increased number of fish harvested’ due to the higher availability of smaller fish compared to larger fish. Although discards may decrease under certain slot limits, total removals (i.e. harvests and discards) would likely increase due to the increase in harvest. An increase in removals of numbers of fish would increase the fishing mortality rate. Under some slot limit options, marginal benefits to spawning stock biomass (SSB) were predicted; however, these benefits were eliminated when a trophy class was considered in combination with the slot limits.”

A second study also found “that slot limits could result in the number of summer flounder harvested by anglers, as well as a small reduction in the number of female summer flounder harvested. They found that slot limits generally resulted in lower harvest and more discards by weight, and higher and higher and more frequent catch limit overages, compared to minimum size limits.”

The two studies, performed by trained fishery biologists, refute the claims made by slot limit supporters in the angling industry. It turns out that the use of slot limits in the recreational summer flounder fishery would increase, not decrease, overall fishing mortality. Slot limits have no material impact on the health of the spawning stock and, particularly if anglers are also allowed to also keep one larger fish on each trip, might have no impact at all.

Based on those findings, it’s hard to credit claims that fishery managers are currently mismanaging the fishery by imposing conventional minimum size limits, much less that such conventional limits are “crazy,” “biological suicide,” or represent “a despicable lack of responsibility to the resource.”

Moreover, the use of slot limits creates some practical management problems. The MAFMC’s materials reveal that, particularly when the recreational harvest limit is low, “a very narrow slot limit would be necessary to constrain summer flounder to the [recreational harvest limit]. Narrow slot limits could be more challenging to enforce and could lead to greater noncompliance than wider slot limits or a standard minimum size.”

Despite the negative impacts of slot limits, a substantial majority of the members of the MAFMC agreed to authorize their use at its December 2018 meeting. It’s reasonable to wonder, “Why?”

The answer to that question can be found in the words of the New Jersey writer quoted above, who complained that “the sizes we used to keep, and that once made up a good portion of our seasonal catches, are now off limits…most fluke have always been around 16 to 17 inches long.” Because the one thing that slot limits do better than a conventional minimum size, if “better” is the right word to use, is that they increase the number of summer flounder that anglers are able to keep, and that is what the slot limit debate has always really been about.

As that New Jersey author noted, “it’s fluke keeping that’s our problem.”

The fact that the MAFMC voted to allow the use of slot limits doesn’t mean that such limits will ever be used. Right now, they are just one more tool that managers will have at hand.

But should they ever be used, it’s now clear that such use will have nothing to do with increasing the size of the spawning stock, and everything to do with increasing the recreational kill.

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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/

WHAT IS THE WHITE HOUSE TRYING TO SAY ABOUT FISHERIES MANAGEMENT'S FUTURE?

For those who haven’t yet heard, S. 1520 is now law.  President Trump signed it last Monday.

As I wrote a couple of weeks ago, that’s no big deal.  While the so-called “Modern Fish Act” was once a terrible piece of legislation, the Senate did a good, if painfully slow, job of castrating the bill; the version signed into law is effectively impotent, and unlikely to cause any harm.

The folks who support the bill are still trying to convince themselves, and everyone else, that the money and effort that they poured into S. 1520’s passage represented resources well-spent, although at least one group, the American Sportfishing Association, is trying to walk back the enthusiasm just a little bit. 

After making the expected laudatory claims, ASA began to introduce a bit of realism into the picture, and apparently tried to ramp down expectations a bit as to just what the new law will do.  As it noted in a recent press release

“The Modern Fish Act isn’t going to overhaul the federal marine fisheries management system overnight.  It’ll likely take several fishing seasons before the management and data collection improvements called for in the Act begin to better align fishing regulations with actual fish abundance and harvest, and with what anglers really want out of management.

“It’s also important to note that not all the changes called for in earlier versions of the Modern Fish Act made it through in the final version.  This was the unfortunate reality of needing unanimous approval of the U.S. Senate to clear the bill.  Even though it’s big to us, in the grand scheme, bills such as the Modern Fish Act rarely receive floor time and therefore can only pass with unanimous approval.”

The ASA release was easy to follow, and to understand.  In essence, it said “Hey, thanks everyone for your help in getting the Modern Fish Act signed into law.  This is a great day for recreational saltwater fishermen.  But don’t expect to see any tangible results from the law very soon.  It might take years.  And remember, the law that passed really wasn’t the law that we wanted, so…”

But there was another Modern Fish Act-related statement that came out on December 31, and it was a little tougher to understand.  That one came straight from the White House, and it said

“Today, I have signed into law S. 1520, the “Modernizing Recreational Fisheries Management Act of 2018” (the “Act”).  The Act, however, further strengthens the Regional Fishery Management Councils, which were first established by the Magnuson-Stevens Act of 1976 to promulgate fishery management plans.  The power of these Councils has steadily increased over time, raising constitutional concerns related to the manner of the appointment and removal of their members and members of certain scientific and statistical committees that assist them.  Keeping with past practice of the executive branch, my Administration will treat the plans promulgated by the Council as advisory only; the adoption of the plans will be subject to the discretion of the Secretary of Commerce as part of the regulatory process described in section 304 of the Magnuson-Stevens Act.”

The statement was signed

“DONALD J. TRUMP

The purpose of that statement, and the message that it was meant to convey, is not clear at all.  

Some parts are just plain wrong (one of the most obvious being that there was never anything called the “Magnuson-Stevens Act of 1976”; the original law was the Fishery Conservation and Management Act of 1976, with the “Magnuson-Stevens” being added, to honor its primary sponsors, some years later).  Some parts are on shaky ground, and some parts are just a little strange, making one wonder why they were written at all.

Start with the passage of the bill itself.  

It was a bill sought by a large portion of the fishing tackle and boatbuilding industries, and when it made it through the House, a lot of folks with some time inside the legislative process predicted that, even during the holiday season, the President would have held some sort of signing ceremony, handing out pens to the dozen or more industry stalwarts who would be standing, smiles turned up all the way, at his side.

The signing could have been turned into a feel-good moment and some positive publicity for a White House that has recently been getting beat up in the news.  It could have been spun to depict a presidency that was doing good things for people.

But that didn’t happen. 

Instead, while the President did sign the law, such signing was only given cursory mention in his signing statement.  The remainder of the statement seemed to be critical of at least some parts of Magnuson-Stevens, and even of S. 1520 itself.

Reading the statement, it’s impossible not to get the feeling that the President signed the bill despite reservations, and perhaps even that, at one point, he might have been thinking about not signing at all.

The big question now is, “Why?”

The signing statement provides a few clues.

Begin with the comment that “The Act, however, further strengthens the Regional Fishery Management Councils.”  

That’s just not true.  The Modern Fish Act, as passed, calls for a couple of studies, explicitly allows the regional fishery management councils to use “alternative” management measures to manage recreational fisheries—something that have already been doing for some time—and authorizes some new approaches for gathering data, particularly data related to recreational fisheries.  But that’s all.  It doesn’t expand the powers of the councils at all.

The same theme is echoed in the next sentence, which states, in part, that “The power of these Councils has steadily increased over time.”  

Yet that is also a dubious assertion.  The purpose of the regional fishery management councils, as the statement itself notes, is to “promulgate fishery management plans,” along with related management measures, and that purpose—that “power,” if you will—has been essentially unchanged since the Fishery Conservation and Management Act first became law 42 years ago.

If anything, the “power” of the regional fishery management councils has actually decreased, not increased, over time, first in 1996, when the Sustainable Fisheries Act first put real limits on the exercise of such councils’ discretion by requiring them to end overfishing and rebuild overfished stocks by a legally-established deadline, and again in 2006, when the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act further limited councils’ discretion by requiring that annual catch limits be established for every managed stock, by requiring that such limits not exceedharvest levels established by each council’s Scientific and StatisticalCommittee, and by requiring that fishermen be held accountable for any overfishing that they might do.

When you see the White House make two questionable statements in less than three full sentences, you have to wonder where the source of such errors lie.  The answer to that question might lie in the assertion that the councils’ purported rising power was “raising constitutional concerns related to the manner of the appointment and removal of their members and members of certain scientific and statistical committees that assist them.”

Because that statement is entirely true.  People are making claims that the council appointment system is unconstitutional.  

But the folks who are making such claims—which are few, and have not yet been upheld by a court—are neither law professors, judges, nor Constitutional scholars, but instead fishermen trying to overthrow the federal management process.  The most recent challenge came in Goethel v. U.S. Department of Commerce, a matter decided by the U.S. Court of Appeals for the 1^st Circuit in 2017.

David Goethel trawls for cod and other New England groundfish and, as the court decision explains,

“alleged that the entire [Magnuson-Stevens Act] regulatory framework was unconstitutional…he alleged that the regional [fishery management councils] are improperly constituted, in violation of the Appointments Clause, U.S. Const. art. II [section] 2, cl. 2, because members of the councils are ‘inferior officers’ whose appointments could thus only be vested ‘in the President alone, in the Courts of Law, or in the Heads of Departments.’  Goethel argues that because the governors of the various coastal states are involved in nominating individuals to the councils, and because state executive officials are not among the permissible entities in which Congress can vest the appointment power for inferior officers, the councils are constitutionally infirm and actions taken by those councils, including the Northeast Multispecies [Fishery Management Plan], are void…”

It’s a creative argument, made by someone who wants to be able to kill a few more cod than the New England Council allows, and there’s still a chance that it might even be valid.  But because Goethel filed his lawsuit too late, it was ultimately dismissed on statute of limitations grounds, without the court ever having to decide on its merits.  (I suspect that the merits are few, as a strict reading of the Appointments Clause shows that it addresses just that—appointments, which in the case of the councils are made by the Secretary of Commerce, a “Department Head”—and does not describe how candidates for appointment may be nominated, but I am not a federal judge, and could easily turn out to be wrong.)

Much of the New England trawler fleet opposed the Modern Fish Act, and it’s not hard to picture some of them trying to convince the President to veto the bill.  There’s no clear proof of that, of course, but the fact that the White House statement raises the constitutional issue, something that is outside of mainstream legal thought, strongly hints at their involvement.

In the end, that didn’t matter for the Modern Fish Act, which did become law.  But what does it mean for Magnuson-Stevens reauthorization, which is likely to occur during this session of Congress?

We can hope that another bad reauthorization bill, such asH.R. 200, won’t again get passed in the House, where pro-conservation legislators seem to now hold the upper hand. 

But what if the Senate and House agree on a good bill, that will promote more effective fishery management, perhaps by placing more emphasis on forage fish and habitat issues?

If a bill like that made it to the President’s desk, would it be signed?  Or would backward-looking members of the fishing community, more intent on today’s harvest rather than the future health of fish stocks, manage to scuttle the effort?

Only time will tell.  But the signing statement that accompanied S. 1520 suggests that we might have reason to worry.