Sunday, December 30, 2018


If you told me ten years ago that I’d be writing about, or even caring about, chub mackerel, I’d probably have looked at you a little funny.  Yes, I caught one every now and then, often while fishing for fluke, and I knew that they could be an important food for tuna and some other species but to be honest, they weren’t really much on my mind

I recalled Atlantic mackerel well enough, and the runs that we used to have every spring, back in the late 1960s, 1970s and early 1980s.  But those runs tapered off a long time ago, and they only time I thought about mackerel at all was when I was heading out on a shark trip, and stopped by the gas dock for bait.

But that all changed a few years ago.

Suddenly, chub mackerel started swarming my chum slicks, and showing up on the inshore grounds.  One day in September 2017—it was the day of the solar eclipse—I stopped by the Fire Island Reef on my way home from a black sea bass trip, hoping to put a few porgies (aka “scup”) in the cooler, and found the mackerel grabbing my clam-baited hooks before they got close to the structure below,

And chub mackerel were showing up somewhere else—in the commercial landings. 

Prior to 2010, it was rare to see many chub mackerel caught by commercial fishermen in the Mid-Atlantic.  2003 saw a whole 33 pounds being landed, while 2005 through 2009 saw no chub mackerel landings at all.  However, in 2010, more than 175,000 pounds were brought to the dock.  That spiked to more than 4,374,000 million pounds in 2013, then tapered off to a little over 1,400,000 pounds in 2015 and then to a little under 560,000 pounds in 2016, the last year for which landings are available (note that some landings also occurred in the New England and South Atlantic regions).

The timing couldn’t have been worse for the mackerel.

If that process had begun in 2010, or a little before, chub mackerel would almost certainly have been safely tucked into what ultimately became the Mid-Atlantic Council’s Unmanaged Forage Omnibus Amendment, which was intended to

“prohibit the development of new and the expansion of existing directed commercial fisheries on certain unmanaged forage species in Mid-Atlantic Federal waters.”
The amendment further explained that

“The Council intends to prohibit such fisheries until they have had an adequate opportunity to assess the scientific information relating to any new or expanded directed fisheries and consider potential impacts to existing fisheries, fishing communities and the marine ecosystem.
But the fact that more than one million pounds of chub mackerel had been landed in two nearly-adjacent years, that occurred during the development of the amendment, meant that there were people who didn’t want to have their potential future incomes threatened by regulations, and they settled in to keep chub mackerel out of the Unmanaged Forage amendment.

They didn’t quite succeed.

Instead, when the final rule was issued in 2017, the National Marine Fisheries Service, following the Council’s recommendation, established a 2,860,000 pound annual catch limit for chub mackerel, which represented the average of landings in recent years.  It was a rational compromise, and given that the catch limit would only be in effect through 2020, it provided the Mid-Atlantic Fishery Management Council with an incentive for putting a chub mackerel management plan on their front burner.

Predictably, the few entities that targeted the chub mackerel resource weren’t happy with that outcome.  When it issued the final rule, NMFS noted that

“One individual recommended that NMFS implement a 5.25 million-lb (2,381-mt) annual limit for chub mackerel because it reflects the historical fluctuation of the chub mackerel market, is more consistent with the market’s overall direction, avoids implementing artificial constraints, allows equal access to the market, and facilitates competition in the market rather than consolidating control by a select group of large vessels…Lund’s Incorporated and the [Garden State Seafood Association] support the higher limit, stating there is no evidence that the higher limit would harm the stock and that it would reduce discards until the [Mid-Atlantic Council’s Scientific and Statistical Committee] can set a reasonable biologically-based limit in a future action…”
That wasn’t an unreasonable argument, although it is necessary to point out that, while there was no evidence that the higher limit would harm the stock, there was also no evidence that such higher limit was sustainable, nor that such higher level of removals wouldn’t have an adverse impact on either some predator populations or on fisheries targeting such predators.

And even though NMFS did gave no effect to such argument in the Unmanaged Forage amendment, it would certainly come up again when the Mid-Atlantic Council started to consider chub mackerel management measures, to prevent regressing to a wide-open fishery when the chub mackerel measures in the Unmanaged Forage amendment sunset on January 1, 2021.

Which brings us up to today.

The plan, as described in the Public Hearing Document, would nearly double the annual catch limit for chum mackerel, to 5,070,000 pounds (2,300 metric tons), almost, but not quite, what was suggested in some of the comments to the Unmanaged Forage amendment.

In setting that limit, the Mid-Atlantic Council’s Scientific and Statistical Committee admitted that they had no biological data to go on, saying

“that insufficient information exists to assess the status and trends of chub mackerel in the northwest Atlantic and instead relied on expert judgment to derive their [allowable biological catch] recommendation.  The SSC agreed that this level of catch is unlikely to result in overfishing given the general productivity of this species in fisheries throughout the world, combined with the relatively low capacity in U.S. Atlantic waters.”
But capacity can always increase, if the fish and the markets are there.  And that statement, if anything, understated just how “insufficient” the available scientific information is.  

Elsewhere in the Public Hearing Document, that insufficiency was made clear, when the Mid-Atlantic Council stated that

“The stock structure of chub mackerel in the western Atlantic Ocean has not been well studied.  Studies from other regions suggest, based on differences in morphology, spawning seasons, and/or sizes at maturity, that sub-stocks may exist…
“Migratory patterns in the western North Atlantic are also not well understood…
“Limited quantitative estimates of the contribution of chub mackerel to the diets of any predator species are available…
“The stock status of chub mackerel in the western Atlantic Ocean is unknown as there have been no quantitative assessments of this species in this region…
“Scientific experts on the Council’s Scientific and Statistical Committee (SSC) and the Chub Mackerel Fishery Management Action Team reviewed the available data and concluded that chub mackerel are so data poor that even stock assessment methods designed for data poor stocks would not be appropriate for this species…”
So no one knows whether the chub mackerel that we see of the East Coast constitute a single stock, that can withstand substantial fishing pressure, or are composed of a number of sub-stocks that, because of their smaller size, might be more vulnerable to fishing activity.  No one understands their migratory patterns.  They don’t know how chub mackerel fit into the ecosystem.  They don’t know whether the stock is healthy or not, what level of fishing mortality it can sustain, and readily admit that there are so many unknowns that they can’t even begin to figure out how to assess the health of the population.”

Even so, they have faith—and “faith” is probably the only word that fits, because “knowledge” certainly doesn’t—that it’s OK to nearly double chub mackerel landings.

And, in truth, it very well might be.  But “might” is a pretty weak basis to uphold such an increase in harvest.

“Conservation and management measures shall be based upon the best scientific information available.”
Court decisions have made it clear that “the best” scientific information doesn’t mean perfect data; “the best” means “the best,” even when that “best” isn’t very good.

But no one has tried to address the question of what managers ought to do when they don’t even have iffy data, but instead have no data at all.  Except, perhaps, for the Unmanaged Forage amendment, which suggests that NMFS shouldn’t allow an existing forage fish fishery to expand “until they have had an adequate opportunity to assess the scientific information relating to any new or expanded directed fisheries and consider potential impacts to existing fisheries, fishing communities and the marine ecosystem.”

Perhaps if there is no scientific information that allows managers to understand, much less consider, potential impacts to existing fisheries, etc., they should permit no expansion at all.

And that’s where the public comes in.

Remember that Magnuson-Stevens requires that fisheries be managed for “optimum” yield which, as the Public Hearing Document notes,

“is [maximum sustainable yield] as reduced by social, economic, and ecological factors, which in practice takes the form of a reduction in the [allowable biological catch].”
Section 8.3.2 of the Public Hearing Document addresses the so-called “Alternative 3.B” of the Chub Mackerel Amendment, “[Optimum Yield] is Less than [the allowable biological catch].” 

“Under this alternative, the Council would adopt an [optimum yield] value that is less than the [allowable biological catch] that is recommended by the [Scientific and Statistical Committee] for upcoming fishing years.  The Council may consider doing this to address ecosystem considerations, which could include biological, ecological, and/or economic considerations.  The Council has not yet considered specific alternatives for a reduced [allowable biological catch].  If you wish to recommend a lower [allowable biological catch] than that recommended by the [Scientific and Statistical Committee], please provide a specific value and the basis for that recommendation.”
 That’s it in a nutshell.   

Over the past few years, as chub mackerel appeared here off Long Island, I’ve been struck by their importance as forage to inshore shark species, in particular the common thresher and sandbar sharks.  When chub mackerel appear in my chum slick, the sharks are never far away. 

I spent most of my offshore time last summer working with some graduate students, helping them catch sharks that they then sampled and tagged.  We fished the same area every time, and when the mackerel were  off Fire Island, we had thresher sharks in the 250 to 400 pound range take our baits, and when the threshers weren’t there, we found sandbar sharks so abundant that we only fished one line, hooking a sandbar, sampling and tagging it, then hooking another as soon as the previous fish was released.  Once the chub mackerel moved east, the threshers moved with them, eventually showing up off Montauk as soon as the thresher sharks did.  Similar patterns played out in previous years.

So there’s clearly an ecosystem component.

But there’s a precautionary component, too.  Decisions should be based on data; biologists shouldn’t find themselves shooting blindly into the dark, merely hoping not to do harm.  When data is lacking, caution should be the byword.

So this time, let’s try to get forage fish management right.

The Mid-Atlantic Council is taking comments until January 18. Such comments can be made here

We should all tell the Council that increasing landings, based on a complete lack of data, is not the right thing to do.

Thursday, December 27, 2018


One of the striking things about salt water fisheries management is how well some fishery management plans work, and how others don't work at all.

Consider the striped bass.  

The successful recovery of the striped bass stock, from its collapse in the late 1970s/early 1980s to its declared recovery in 1995 has often been ballyhooed as one of the great fishery management success stories.  While that success is perhaps overstated, as itseems that striped bass abundance is, once again, on the decline, there is no question that, a generation ago, managers did a good job rebuilding the stock. 

Then, take a look at winter flounder—at least at the Southern New England/Mid-Atlantic stock—along with some other New England groundfish such as cod.  

Those stocks collapsed, too, but no one is telling any success stories about them, as abundance still grinds along at historically low levels and, at least in the case of flounder, there is a real chance of complete extirpation from some waters where it was once abundant.

The question of why one stock benefits from conservation measures, and why another remains badly overfished, has been a puzzle for a very long time.  Recently, a paper with the unwieldy name of “Path-dependent institutions drive alternative stable states in conservation,” which appeared in the Proceedings of the National Academy of Sciences of the United States of America, sought to shine some light on that question.

It turns out, according to that paper, that fish are victims of choices that people made in the past, as

“historical contingencies trap similar institutions in dramatically different, but predictable, states.”
To say it another way, it all depends on the management path originally chosen; if a fishery is managed conservatively from the start, conservation is likely to continue.  On the other hand, once a fishery becomes overexploited, it is very difficult to change its course, and manage it in a sustainable manner.  

“we found that people often get trapped by their past decisions.  If they start out overharvesting, they tend to continue overharvesting.  But once people start conserving, this this behavior is also self-perpetuating and gets amplified.  Policies change slowly.”
However, the paper notes that laws such as the Magnuson-Stevens Fishery Conservation and Management Act, which require that depleted stocks be rebuilt within a relatively short time, are a valuable tool that can overcome the tendency of overfished stocks to remain overfished, and move them onto a path toward sustainability.  

“This research suggests that short, intensive harvest-reduction efforts (such as recovery mandates) can spur conservation that is self-perpetuating.”
That makes sense, because such laws, and their mandates, can force institutions to change patterns of behavior that they would be unlikely to change on their own.  And so long as such laws and mandates remain in place, they serve as a bulwark against institutional backsliding toward overharvest.

Particular attention needs to be paid to the finding that “short, intensive harvest-reduction efforts” can spur self-perpetuating conservation efforts, because that finding brings the common practice of imposing relatively weak, incremental management measures, that fall short of what is needed to recover the stock, into serious question. 

And that, in turn, seems to discredit those who demand more “flexibility” in the fishery management process, either in the form of legislation such as the so-called “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act” that the House or Representatives (but thankfully not the Senate) passed earlier this year, or in the form of the stock rebuilding programs described in the Theodore Roosevelt Conservation Partnership’s report, A Vision for Managing America’s Saltwater Recreational Fisheries, where

“Instead of having a fixed deadline for stocks to be rebuilt…the regional councils and fisheries managers [would] set lower harvest rates that would allow fish stocks to recover gradually while diminishing socioeconomic impacts.”
It’s certainly a contentious view, but it’s one that seems to find validation in real-world events.  

Even setting aside the 217 managed fisheries, taking place all over the world, that were examined by the authors of the paper, a hasty analysis of what has worked and what failed on the upper East Coast of the United States seems to provide support for the paper’s findings.

The paper's findings help to explain why, since the turn of this century, federal fishery managers have been so much more successful at rebuilding fish stocks than have the states, whether working on their own or through the Atlantic States Marine Fisheries Commission.  They also explains ASMFC’s only real success, the recovery of the striped bass population in 1995.

Federal fishery managers have no choice but to rebuild overfished stocks; they are mandated to do so by law.  And they are required to do it in a relatively short period of time, which is also dictated by law.

Those requirements largely take political considerations out of the picture, as federal fisheries managers lack both the discretion to allow overfishing to continue and the discretion to allow stock abundance to languish at depleted levels.  Should they try to do so, their decisions could, and almost certainly would, be subject to judicial review.  Thus, federally-managed stocks are, for the most part, healthy and not overfished.

That is not the case at ASMFC, which is not bound by law to take any management action at all.  Everything there is, in the end, discretionary.  

Such incremental measures were adopted with the best intentions; with the hope of, as expressed in the “Vision” report, “diminishing socioeconomic impacts” of the management program.  But, as the recent paper suggests, all that such measures have done to date is perpetuate overfishing and frustrate conservation efforts.  There is no reason to believe that the tautog's future, at least in Long Island Sound, won’t simply mirror the past.

The interesting thing is that the management of some other fish stocks help to prove that it really is the management approach, rather than the management institution, that determines whether a rebuilding plan will succeed.  For in the three fisheries mentioned at the beginning of this essay, striped bass, Southern New England winter flounder, and cod, the usual roles were reversed.  It was ASMFC that imposed “short, intensive harvest-reduction efforts” on the striped bass fishery, and federal fishery managers, led by the New England Fishery Management Council, who took an incremental, and ultimately catastrophically ineffective, approach to managing flounder and cod.

After the striped bass stock collapsed, and Congress passed the Atlantic Striped Bass Conservation Act, which gave ASMFC the authority to enforce its plan to recover the stock, the Commission released Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass.  Amendment 3 was short, consisting of only three pages, and to the point, having only two objectives.

Objective 1 was to

“prevent directed fishing mortality on at least 95% of the 1982 year class females, and females of all subsequent year classes of Chesapeake Bay stocks until 95% of the females of these year classes have an opportunity to reproduce at least once…”
Objective 2 was to support

“restoration efforts in the Delaware River system including the Delaware Bay and that a moratorium on striped bass fishing in the Delaware Bay system be implemented…”
Those were certainly “short, intensive harvest-reduction efforts.”

And they worked.

They didn’t work at all.  Both stocks of cod, as well as the Southern New England winter flounder, remain badly overfished--so badly overfished that a decade of new and restrictive management measures haven’t yet been able to turn things around.

Thus, the conclusions of the paper seem to accord with what fishermen see on the water.  Rigorous conservation measures, applied in time, can restore fish populations, and if good conservation practices are maintained, populations—and fisheries—will remain healthy.

But once a fishery falls victim to a culture of overharvest, the consequences of such culture can be very hard to undo.

Thus, moving forward, both policy and law, at all government levels, should support the kind of effective fishery management currently mandated by Magnuson-Stevens, because experience has shown that incremental cuts in harvest, that fail to get overfishing under control, solve nothing.

No matter how well-intentioned, such incremental cuts are, to both fish and fishermen, ultimately the unkindest cuts of all.

Sunday, December 23, 2018


We’ve all heard the story of The Boy Who Cried “Wolf!”  It’s a time-tested parable warning of the risks of creating a crisis where none exists, and it’s something that everyone who deals with conservation issues must keep in mind.  Because if we decide to say that everything is a crisis, even when it is not, no one will believe us when a true crisis really appears.

I kept that parable in mind a couple of weeks ago, when I wrote a blog warning of troubles that might lie ahead for the striped bass.  In many ways, that blog was premature, as it was based on a preliminary stock assessment report that had not yet been finalized, much less released, and on some rumors and second-hand stories that I could not verify with any certainty.

Normally, I need more than that when I sit down to write. 

I try to give all of my readers the straight scoop on things, so I’m hesitant to base any thoughts and reporting on less-than-definitive sources.  Thus, I hemmed and hawed a bit before writing that bass piece, and when I finally went ahead, I didn’t only consider the boy who cried out when the wolf wasn’t there, but the other lad watching the meadow, who just yelled “Sheep!  There’s no danger,” even though he had more than enough reason to believe that something hungry and large was lurking, not quite seen, in the brush at the edge of the meadow.

Crying “Sheep!” goes back a long way.

A lot of serious striped bass fishermen have been worried that at least one wolf, and maybe quite a few more, has been stalking their favorite fish for close to ten years, but the folks in charge of the stock kept on telling them that everything was OK. 

“…I come away this afternoon with a lot of uncertainty.  I see a disease issue that we don’t have a handle on that could make a major impact.  We hear about a law enforcement issue that could be substantial; we don’t know.  The 2008 numbers I understand are not good.
“You have issues in the northern range that are trending down substantially.  Maine and New Hampshire, especially Maine, a good chunk of those anglers didn’t see any striped bass this year.  I guess I don’t see things quite as positively as some, and I think it’s time for caution.  We have had a number of proposal come forward and each one has a little impact on mortality, but I haven’t seen anything that has combined them all…”
At the time he said that, the Management Board was debating an addendum to the management plan that would increase the commercial harvest.  Vito Calomo, the legislative proxy for Massachusetts, supported the increase, and tried to reassure his colleagues on the Management Board that there was no wolf out there, and so no need to worry, because

“[The striped bass are] in the ocean, they’re on the ocean side, not in state waters like they have been for years.  There are more people who want to open up the EEZ because they’re in the ocean.  You take an airplane ride, you can see them in the ocean.  There are people that sneak out there and know they’re in the ocean.  That is where the majority have migrated.  Reasons; I am not the scientist; I don’t disagree with that, but they’re in the ocean.  There is an abundance of them in the ocean…”

Still, there were some good shepherds who kept scanning the edge of the forest; in January 2011, their diligence seemed to pay off when one wolf stepped into the open, in the form of an update to the stock assessment, which found that recruitment of young fish into the population had been low, and warned that, whether recruitment remained low or returned to average levels,

“Female [spawning stock biomass] will fall below the threshold [meaning that the stock will become overfished] by 2017 under both recruitment scenarios.”
That was enough to convince the Management Board that there really were threats in the offing, and in March 2011, it initiated an addendum to reduce striped bass harvest.  But final action on the addendum was delayed until November, and by then, the wolf had faded back into the forest, and it seems that the Management Board’s memories of the threat the wolf posed had faded away, too.

When they met in November, many members of the Management Board suggested that since the stock wasn’t yet overfished, and since overfishing wasn’t yet taking place, there was no reason to take any action.  Unlike federal managers who, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, are required to take remedial action if the stock is likely to become overfished within the next two years, those at ASMFC have no duty to act to avert a crisis, and may wait until the soft, smelly stuff has really and truly hit the fan before they begin to talk about what they might have to do.  As a result, the Management Board halted all efforts to reduce harvest until after the next stock assessment.

“a bad economy, adequate stock abundance, stable commercial landings, more pressing management issues, natural changes in distribution, mycobacteriosis, scare tactics, multispecies considerations, and not tripping any of the triggers as reasons for the northern recreational problem [of low abundance] and/or reasons for status quo.”
The notion that “no triggers were tripped” was a reference to a provision in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which requires managers to take certain actions if the health of the striped bass stock declines. 

Two of the triggers are tripped if the stock becomes overfished, or if overfishing occurs.  But there are also two triggers that trip when the situation is less dire.  

One requires the Management Board to reduce fishing mortality if it finds that the fishing mortality rate is above the target (but not the threshold) for two consecutive years, and the female spawning stock biomass drops below the target (but not the threshold) in one of those years; the other requires the Management Board to draw up a plan to rebuild the biomass to target levels within ten years, should the biomass fall below target for two consecutive years, and fishing mortality rise above target in one of those years.
Since Amendment 6 was adopted more than fifteen years ago, fishery managers have assured anglers that they didn’t have to worry about the health of the stock, because if any of those triggers were tripped, managers would have to take action.

Things didn’t turn out that way.

When the 2013 stock assessment report was released, it turned out that the latter two triggers, which dealt with violating the targets, but not the thresholds, had both been tripped.  The Management Board did act to reduce fishing mortality, but made no effort to initiate a rebuilding plan, even though Amendment 6 clearly required that they do so.

And that brings us to where we are today.

As I noted in this blog two weeks ago, the striped bass assessment for 2018 suggests that bass are facing problems.  Two different models indicate that the stock is overfished and that overfishing is taking place on the coast; they only disagree on how severe those problems might be. 

That assessment is being peer reviewed.  The peer review committee has not yet issued its report on the assessment, and it is possible—perhaps not likely, but surely possible—that such report will either disapprove both models, or otherwise moderate the assessment’s finding that, yes, the “stuff” has now hit the fan.

An angler who has been long involved with striped bass conservation wrote a piece warning fellow fishermen that not just one wolf, but a whole pack, was getting ready to feed.  It’s possible that he was wrong, and crying “Wolf!” in vain, but there is also a very good chance that he’s pretty much dead on target.

The reaction to what he wrote was intriguing.  

A number of anglers, taking up the alarm, forwarded his piece to their friends.  At least one used it as a base for his own video.  There was considerable buzz.

But then the sheep-soothing began.

A writer down in Maryland got onto Facebook and chided all of the folks who started talking about the assessment, saying that it was wrong to start discussing possible problems until the peer review report was completed and formally released. 

From the standpoint of science, that was good advice; from the standpoint of fisheries politics, maybe not.  

The folks who don’t want to see more restrictive regulations are aware of the assessment’s conclusions, too; if anglers do nothing, those folks could have a three-month head in the fight for the hearts and minds of the Management Board, a head start that could prove impossible to overcome.

“early indicators do show we may be facing new management decisions on striped bass in the very near future.  But preliminary is the key word here, meaning its probably too soon to react to sensationalism from either side just yet.
“At least until February!”
February is when the Management Board will next meet.  But the peer review report itself will be out before that, likely in early January.  Once it comes out, anglers will know where the striper stands.  

If the final report confirms that the bass is in trouble, anglers ought to be actively contacting their ASMFC reps before the February meeting, to make sure that their views on the subject are known.

Waiting until February would give folks who aren’t so concerned with the striper’s future months to argue, unopposed, that managers should ignore the Amendment 6 triggers, as they ignored one of those triggers in 2014, and not worry about a rebuilding plan.  

They could use the time trying to convince Management Board members to change the reference points that define overfishing and an overfished stock, and so increase landings of an already overfished resource, while anglers just sat on their hands.  There has already been talk about making such changes at ASMFC.

That sort of thing should be cause for concern.  

While the article contained no glaring falsehoods, and even admitted that striped bass abundance was in a 12-year decline, its reasonable, low-key tone seemed to hide an underlying bias. 

It noted that

“There are members of the ASMFC who believe that certain biological reference points are too conservative; for example, lowering the target and threshold to accommodate new modeling approaches, environmental factors, migration shifts or updated recreational harvest (MRIP) methodologies could actually remove the ‘overfished’ and ‘overfishing’ by way of a penstroke.”
and tried to reassure anglers that

“As for the trawl surveys and where researchers collected striped bass samples used in the overall stock analysis, questions remain as to whether or not the spawning class fish are truly gone, or if they’ve traveled farther east into deeper offshore grounds in the Exclusive Economic Zone (EEZ) or even into Canadian waters.”

But what’s missing is the other side of the equation.  There are quotes from folks saying that bass might be in the EEZ, and that there is no reason to worry, but there is no discussion of things like the impacts of a lowered biomass target on spawning stock structure, and no quotes from the many people who fear that we may be facing a serious problem.

In honesty, I know of fishery managers, from more than one state, that are sending a similar message, so I can’t say the article’s message was out of line.  But it makes me uneasy.

Sleep, little sheep, you are safe, don’t you worry—and should the wolves come, we can at least hope that they do their job fast…

That message poses a problem.

Some of us instinctively want to protect the sheep.  We spend our time looking out for wolves, trying to catch that first whiff of scent, the first stealthy sound, that first glimpse of something not clearly seen, that warns us that danger is out there.  It’s our nature to worry.

And when we see people trying, far too hard, to convince the sheep that there’s no danger, it starts to set off alarms.

Maybe we’re wrong.  Maybe we are crying “Wolf!” just a little too often, and a little too loud.

But folks crying “Sheep!” make us nervous.  Things just didn’t go well when we heard them do that before.

Thursday, December 20, 2018


The long fight over the so-called “Modern Fish Act” is over; on Wednesday, December 19, the House followed the Senate’s lead and, by unanimous consent, passed an effectively toothless piece of legislation that will have no meaningful impact on U.S. fisheries, and was a very, very different bill from what was first introduced in Congress more than a year and a half ago.

Thanks to the efforts of conservation-minded fishermen and the broader conservation community, a bill that would have substantially weakened the Magnuson-Stevens Fishery Conservation and Management Act, and threatened the health of U.S. fish stocks, was whittled down into something that might best be described as a “participation trophy” given to those who tried very hard, but ultimately failed, to significantly damage the federal fishery management process.

Of course, that’s not what the folks who have long supported the Modern Fish Act are saying.  A release issued by the Center for Sportfishing Policy, the group that coordinated efforts to pass the bill, gushes with praise for the bill’s passage.

It quotes Johnny Morris, founder of Bass Pro Shops, as saying

“The Modern Fish Act is the most significant update to America’s saltwater fisheries regulations in more than 40 years…”
The fact that it’s a change to the law, and won’t have any immediate impact on regulations, seems to have escaped him.

Jeff Angers, the president of the Center for Sportfishing Policy, called the bill’s passage

“a historic day for America’s 11 million saltwater anglers,”
although that’s not really saying too much, as the evening when Abraham Lincoln and John Wilkes Booth both met, for a critical moment, in Ford’s Theater was a “historic day,” too.  But the passage of the Modern Fish Act will have far less dire results for America’s fish stocks than the shot fromBooth’s derringer had for the nation.

In the end, the whole thing ended not with a bang, but with a whimper.

Saying that, let’s take a look at what really happened.

The original Modern Fish Act, H.R. 2023, was introduced in the House of Representatives on April 6, 2017.  It would have serious weakened some of Magnuson-Stevens’ most important provisions, limited the actions of regional fishery management councils, and compromised the integrity of federal fisheries data. 

Such bill would have relieved fishery managers of the need to adopt annual catch limits for many recreational fisheries, and thus made them far more vulnerable to overfishing.  The list of fisheries that would have been exempt from annual catch limits included those that had not been subject to a stock assessment within five years, leading to an untenable situation in which data-deficient stocks, which are the stocks most in need of precautionary management, would have lost their best safeguard against overfishing.  H.R. 2023 would also have abolished the annual catch limit requirement for all recreational fisheries where overfishing is not occurring, even if such fisheries were very badly overfished, and at extremely low levels of abundance.

In addition, H.R. 2023 would have allowed annual catch limits to be set for “stock complexes.”  While that might seem to make sense on the surface, particularly in the case of southern reef fish, where thirty or more species might be included in a single fishery management plan, it ignores the fact that some components of a stock complex will inevitably be healthier than others, and that not all are subject to the same fishing pressure. 

Along with eroding the annual catch limit requirement, H.R. 2023 would have also eroded regional fishery management councils’ ability to adopt innovative and effective fishery management measures.  It would have placed a moratorium on commercial catch share programs for any species that also supports a recreational fishery, despite the fact that imposing such programs have often proven to be the only reliable way to end commercial overharvest.  It would also have made it very difficult to issue exempted fishing permits, which allow managers to try out new ideas and approaches on a small scale, before adopting them for the entire fishery.  Ironically, many of the same people and organizations who supported H.R. 2023 later resorted to exempted fishing permits to address long-standing issues in the Gulf of Mexico red snapper fishery, and so illustrated a real flaw in the bill.

Finally, H.R. 2023’s language threatened to degrade the quality of the science used to conduct stock assessments and make other fisheries studies, by seeking to include information collected or otherwise provided by untrained fishermen, among others, into what should be data-driven scientific reports.  At the same time, the bill would have diverted the energies of fishery managers at the South Atlantic and Gulf of Mexico fishery management councils from their primary duty of managing and conserving fish stocks, and forced them to revisit the commercial and recreational allocations of all managed species every five years, whether or not conditions had changed and whether or not there was any data supporting the need for reallocation.

In the end, H.R. 2023 never made it out of committee as a stand-alone bill.  Instead, its provisions were incorporated into a much broader Magnuson-Stevens reauthorization bill, H.R. 200, formally titled the “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.”  H.R. 200 would have done even more harm to the conservation provisions of Magnuon-Stevens than H.R. 2023, causing some in the environmental community to label it the “Empty Oceans Act;” even so, Modern Fish Act proponents claimed H.R. 200 as their own, and proclaimed a victory when the House passed it in July 2018.

H.R. 200 had virtually no chance of being passed in the Senate, where the Modern Fish Act took the form of S. 1520.  While S. 1520 took a somewhat less radical approach to annual catch limits, it included far more language restricting the use of catch shares.  Over all, H.R. 2023 and S. 1520 were substantially similar in intent and effect.

As there was no broader Magnuson-Stevens reauthorization bill introduced in the Senate, S. 1520 was reported out of committee as a stand-alone bill.  However, thanks to the efforts of conservation-minded fishermen and the greater conservation community, the bill that emerged from committee after a February 2018 mark-up was very different from the bill that was originally introduced.

Much of the most objectionable language was gone.  The new version even included a conservation measure that would have required new fishery management plans, which were adopted after the original management plan failed to rebuild the stock, to have at least a 75% chance of achieving that goal, a substantial improvement over the current, 50%-chance-of-success requirement.  However, the marked-up bill still included the severe restrictions on the use of catch share programs, and still required repeated periodic reviews of allocations at the South Atlantic and Gulf of Mexico councils.  

Because of that, it was given little chance of gaining the 60 votes needed to assure passage in the Senate.

S. 1520’s original sponsor, Sen. Roger Wicker (R-Mississippi) was nonetheless determined to see the bill passed before the 115th Congress ended.  Since the only way he could do that so late in the year was to see the bill passed by unanimous consent in both the Senate and the House, he stripped out every piece of language that any member of Congress, in either chamber, might object to.  The result was a milquetoast bill that was passed by the Senate on December 17, and by the House two days later.

So what was in the bill that is finally making it’s way to the President’s desk, the bill that has been called “the most significant update to America’s saltwater fisheries regulations in more than 40 years,” and made December 19, when it passed in the House, “a historical day for America’s 11 million saltwater anglers”?

First of all, and most important, it makes no changes to the core conservation provisions of Magnuson-Stevens.  Instead, not once but twice, in two different parts of the bill, S. 1520 reaffirms that such provisions, which prohibit overfishing, require annual catch limits, and hold fishermen accountable when overfishing occurs, retain their full force and effect.

That, in itself, is a major win for conservation advocates.

It does call for two studies.  One would take a look at how fish are allocated between the commercial and recreational sectors, and hopefully suggest criteria that could be used when making such allocations.  Of course, such criteria are already out there, as NMFS has already developed an allocation policy that includes guidelines on when and why reallocation should be considered, but the final version of the Modern Fish Act makes the new study specific to only the South Atlantic and Gulf of Mexico fishery management councils—in other words, to red snapper country—so the big recreational spokesmen now have something to take back to their members, who have long been trying to change red snapper allocations.

The other study would look at the impacts of catch shares on stakeholders in mixed-use fisheries.  That’s long been a hot-button item for recreational red snapper fishermen down in the Gulf of Mexico, who repeatedly complain that the catch share program that has prevented commercial overfishing of red snapper in the Gulf of Mexico ever since it was introduced in 2007 is somehow an infringement on their ability to access the fish (even though such anglers have chronically overfished the red snapper resource).  Thus, such study represents just another small bone that Congress tossed to red snapper anglers when they passed the bill.

Once we get away from the studies, the Modern Fish Act, as passed, does give federal fishery managers the right to use management measures such as fishing mortality rates and control rules to manage recreational fisheries, so long as no overfishing takes place.  Of course, federal fishery managers could already do that; the Mid-Atlantic Fishery Management Council has been working on using fishing mortality rates to manage the recreational black sea bass fishery for a while.  But keeping this piece in the final bill does give the impression, even if it’s a false one, that the Modern Fish Act did something substantial, and I the end, that’s what participation trophies are all about.

About the only thing that S. 1520 might have substantively accomplished is to encourage the use of data from nongovernmental sources—such as The Center for Sportfish Science and Conservation that some of the anglers at the heart of the red snapper fight initially funded down in the Gulf—in stock assessments, and to force the Department of Commerce to take a look at whether current recreational landings data is appropriate for in-season management of fisheries.  And again, the Gulf red snapper fishery is one of the few—maybe the only—federal recreational fishery that’s managed on an in-season basis.

So the impact of the new law is pretty clear.  It grants a few very minor boons to the recreational red snapper fishermen, and gives the rest of America’s 11 million saltwater anglers, well, nothing at all.

Perhaps the best indication of how ineffective the bill really is can be seen in the reaction of the environmental and commercial fishing communities, who actively opposed the Modern Fish Act as it was originally introduced, but give the bill that passed a big yawn—and even faint praise.

Thus, while S 1520’s supporters are now trying to convince everyone, including themselves, that they have won an important victory, by any objective standard, they suffered a significant loss.  For the S. 1520 that will now become law makes no substantive changes to Magnuson-Stevens.

That is a clear win for conservation-minded fishermen and for the conservation community as a whole.

Next year, there will be a new Congress and a new battle, as a full reauthorization of Magnuson-Stevens moves forward.  It will probably feature a difficult and sometimes bitter debate.  But with enough work, that fight, too, can turn out well.