BAD COMMERCE DEPARTMENT FLUKE DECISION NOW LOOKS EVEN WORSE

After Commerce Secretary Wilbur Ross decided to overrule the Atlantic States Marine Fisheries Commission’s finding that New Jersey’s 2017 recreational fluke regulations did not comply with the provisions of ASMFC’s management plan, the effectiveness of ASMFC’s cooperative interstate fishery management program was thrown into limbo.

As noted in a press release issued by ASMFC on July 14, ASMFC Chairman Douglas Grout expressed concerns that

“The Commission is deeply concerned about the near-term impact of our ability to end overfishing on the summer flounder stock as well as the longer-term ability for the Commission to effectively conserve numerous other Atlantic coastal shared resources.  The Commission’s finding of noncompliance was not an easy one.  It included hours of Board deliberation and rigorous Technical Committee review, and represented, with the exception of New Jersey, a unanimous position of the Commission’s state members. Our decision was based on the Technical Committee’s findings that New Jersey’s measures were not conservationally-equivalent to those measures in [ASMFC’s management plan] and are projected to result in an additional 93,800 fish being harvested…”

ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee provided fishery managers with a detailed accounting of where New Jersey’s analysis fell short of the scientific standards needed to demonstrate conservation equivalency.  That accounting was forwarded to the Secretary of Commerce, along with other documentation relating to the issue.

Based on the Technical Committee analysis and other data, it was somewhat surprising when Chris Oliver, the Assistant Administrator for Fisheries at the National  Oceanic and Atmospheric Administration, sent a letter to ASMFC stating that it had overruled its noncompliance finding and found in favor of New Jersey.

In finding for New Jersey, Mr. Oliver stated that

“While there is some uncertainty about how effective the New Jersey measures will be, considering the information provided by the State, the Secretary had found that the measures are likely to be equivalent in total conservation as those required [by ASMFC].  [emphasis added]”

Bob Martin, Commissioner of New Jersey’s Department of Environmental Protection, hailed the decision, saying

“We are very pleased that NOAA worked with us to understand our position that sound science and good long-term planning must drive decisions about the management of summer flounder, one of the state’s most important recreational and commercial fish species.”

However, as time passed, news has emerged suggesting that neither “sound science” nor “good long-term planning” had much to do with the outcome.

A recent article in the Boston Globe quoted John Bullard, the regional administrator of NOAA Fisheries’ Greater Atlantic Region Fisheries Office (formerly known as the Northeast Regional Office), who said that he was not even asked for any formal input on the decision, even though his office was responsible for federal summer flounder management.

Mr. Bullard noted that

“This is the first time that no one asked me for a formal recommendation.  The secretary’s decision goes against long-standing protocol, and there’s a cost to that.

“There’s a reason to have regional administrators, because their experience and knowledge is valuable in making decisions like this one.  This is an unfortunate precedent.”

Mr. Bullard’s comments are hard to dispute.  The New Jersey decision represents the first time in 20 occasions spread out over nearly 25 years that a Secretary of Commerce has overruled an ASMFC finding of noncompliance.

And it’s not clear what grounds were used to do so.

The regional administrator was not a part of the decision, and there’s no suggestion that the Northeast Regional Science Center had any significant input, despite their day-to-day familiarity with the state of the summer flounder stock.

Mr. Bullard noted that the

“chain of command was broken with this decision,”

and pointed out that

“This is a system that keeps all states accountable to each other.  We’re now going to have to figure out how to repair that system.”

It appears that such repairs are going to be badly needed.  The Boston Globe quoted Bob Ballou, assistant to the director of Rhode Island’s Department for Environmental Management, asking a critical question,

“Going forward, does this mean states should feel free to act in an autonomous way, regardless of the laws they’re bound by, because there’s a decent chance that the secretary could overturn their decision?”

He noted that

“What the secretary did is very disturbing.”

The Globe quotes Cheri Patterson, supervisor of marine fisheries at the New Hampshire Fish and Game Department, asking another critical question, which could have disturbing implications.

“Protocols have been dismissed here.  There needs to be some clarity whether this was a political decision, and how the secretary made this decision.”

Indeed, there needs to be some clarity.  The federal government has refused to shed any light on the matter, only issuing the ambiguous—and anonymous—statement that

“The long-term sustainability of American fishing stocks, as well as the jobs that rely on them, are of the utmost concern to Secretary Ross.”

On the other hand, some things are clear.

The Asbury Park Press reported, as early as March 2, that the administration of New Jersey Governor Chris Christie

“wasted no time to petition [Commerce Secretary] Ross this week and ask him to put a hold on the new summer flounder regulations approved by the Atlantic States Marine Fisheries Commission on Feb. 2.”

That means that New Jersey was speaking to the Commerce Secretary about fluke regulations three full months before ASMFC found the state out of compliance with its management plan.

Those combinations, combined with the Commerce Secretary’s failure to consult Regional Administrator Bullard (and apparently no one else in the regional office), suggests that, as Ms. Patterson feared, the decision to overrule ASMFC could have been primarily political, and not based on scientific analysis.

That presents problems, because the Atlantic Coastal Fisheries Cooperative Management Act only permits the Secretary of Commerce to overrule ASMFC’s noncompliance ruling if the Secretary finds that ASMFC’s rules are not

“necessary for the conservation of the fishery in question.”

And that’s a decision that can only be based on data, not on politics.  Making it a political call would be patently illegal, just as illegal as the Secretary’s earlier reopeningof the recreational red snapper season in the Gulf of Mexico.

The fact that the Secretary engaged in one clearly illegal action doesn’t mean that he necessarily engaged in another.

But it certainly doesn’t rule it out, either.