DID THE MID-ATLANTIC COUNCIL'S RECENT ACTIONS COMPLY WITH THE LAW?

Regular readers of this blog know that I am a strong supporter of the federal fisheries management system, and of the Magnuson-Stevens Fishery Conservation and Management Act that governs its operation.  They also know that I am a frequent critic of the Atlantic States Marine Fisheries Commission, and its ability to exercise virtually unfettered discretion when managing inshore fish stocks, free of a law such as Magnuson-Stevens that assures that overfishing will be ended and depleted fish stocks will be rebuilt.

Given those beliefs, I was surprised by two of the actions taken by the Mid-Atlantic Fishery Management Council last Wednesday, which seemed to push, and in one case, probably overran, the boundaries established by fisheries management law.

The actions affect two different species, scup and black sea bass.  The circumstances of each action bear certain similarities, but also some very real differences; those surrounding the scup decision probably offer the best justification for extraordinary action, so we probably ought to consider that situation first.

Right now, scup are very abundant, and the stock appears to be healthy.  An operational stock assessment released earlier this year found that at the end of 2018, spawning stock biomass was estimated to be about 186,578 metric tons, which was approximately twice the biomass target.  The same operational assessment found that fishing mortality was well below the overfishing threshold.  Scup enjoyed record-high recruitment in 2015, although recruitment was below average in 2016 through 2018.

In describing the state of the stock, the operational assessment said

“The age structure in current fishery and survey catches is greatly expanded compared to the truncated distribution observed in the early 1990s.  Most survey aggregate biomass indices are near their time series high.  Recent survey indices suggest the recruitment of several large year classes over the last 15 years.  These simple metrics indicate that current mortality from all sources is lower than recent recruitment inputs to the stock, which has resulted in a spawning stock biomass that is well above the management target.”

Thus, all appears well with the scup population.  However, all is not well with the scup management program.

Managers have long viewed scup as a primarily commercial species, with 78 percent of the overall catch allocated to the commercial sector, based on what the National Marine Fisheries Service believed were the recreational and commercial shares of the catch during the years 1988-1992.  

Recent revisions to recreational landings estimates have demonstrated that anglers’ catch during the 1988-1992 base years was understated, and that anglers were actually responsible for about 35 percent of the overall catch.  As a result, the Mid-Atlantic Counsel has initiated a new amendment to the management plan that, when completed, will probably alter the current allocation to provide more fish for the recreational sector.  

But until that amendment is completed, recreational catch is restricted to 22 percent of the catch.

That’s where the problems come in.

Recreational landings weren’t only higher than previously thought during the 1980s and ‘90s; they turned out to be higher than believed today.  In October, the Council (and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board) decided that the 2020 recreational harvest limit for scup should be set at 5.92 million pounds.  Unfortunately, the new recreational catch data showed that 2018 landings were about 12.98 million pounds.  That meant that, in order to constrain harvest to 5.92 million pounds, or 22 percent of the overall annual catch limit, recreational harvest would have to be cut by 55 percent.

To do that, federal regulations (state regulations differ) would have to be tightened dramatically, from a 50-fish bag limit, 9-inch minimum size and year-round season to either a 3-fish bag limit (if the size and season remained the same), a 12-inch minimum size (keeping the current bag and season) or a 5-fish bag and 10-inch minimum, without any season change.

That would constitute a very big cut, particularly for a fish that remains very abundant, and that isn’t harvested at anywhere close to its maximum sustainable rate.  That’s because the commercial fishery doesn’t catch its entire large quota; for the years 2014-2018, the commercial sector never caught more than 84 percent of its allocation, and in 2018, caught only 55 percent of the commercial quota.  And that’s not likely to change, because the commercial fleet comes in under-quota not because they can’t catch the fish, but because they can’t sell them for anything like a reasonable price.  The market for scup is just too limited.

Thus, even with anglers overfishing their quota, the overall catch remains below the acceptable biological catch, and well below the overfishing threshold, because of the big commercial overage.

It would seem that the easy answer would be to reallocate the unused commercial fish to the recreational sector, leave recreational regulations at status quo and move forward from there.  Unfortunately, the management plan doesn’t provide for such quota transfer, and there is no time to put an amendment allowing such transfer in place for the 2020 fishing year.

That left the Council stuck between following the process, and putting in unnecessarily strict recreational regulations, or doing what seemed to make sense, but violating what seems to be a clear provision of the management plan.

The Council (and the Management Board) took the latter course.  At Wednesday’s meeting, they agreed to make no change to recreational regulations, even though by doing so, they effectively guaranteed that anglers would overfish their share of the overall annual catch limit, perhaps by more than 100 percent.  

Still, if both recreational and commercial catch are the same in 2020 as they were in 2018, the overall catch will remain about 2 percent below the acceptable biological catch, and 18 percent below the overfishing limit.

That should work.  Except that by adopting those regulations, the Council would be allocating the recreational sector far more than just 22 percent of the catch.  And that violates the terms of the management plan.

That clearly makes Michael Pentony, Regional Administrator of NMFS Greater Atlantic Region, uneasy.  He expressed real uncertainty about taking such action at the October Council meeting.  On Wednesday, he seemed more comfortable about the status quo regulations, undoubtedly because there is no compelling reason to impose new restrictions on anglers.  However, he still said (note that I might have missed a word or two at the end of the quote) that fishery mangers

“do have to balance tension between doing the best thing for the fishery with doing the best thing for the [scup] stock and following the [law and rulemaking] process.”

If I had to make a prediction, I would predict that, in the end, NMFS approves the status quo regulations.  The argument against doing so is strictly technical, and based solely on the management plan’s 22 percent recreational allocation; there is no conservation need for stricter measures.

While I believe that the decision to adopt status quo regulations could be successfully challenged in court, because it is inconsistent with the terms of the management plan, I think it is highly unlikely that anyone will bother to bring such a challenge.  The commercial fishery isn’t likely to spend money on a court fight over fish it doesn’t intend to catch, and the conservation community is unlikely to intervene in a situation that is unique in its facts, will not tend to establish a precedent that will lead to overfishing and will not tend to weaken fisheries laws.

I'll even admit that I believe that staying status quo on scup regulations is, in the end, the right thing to do.

But when it comes to black sea bass, my views on the propriety of the Council’s actions, the possible implications of those actions, and the overall “rightness” of maintaining status quo regulations are very different.

In some ways, the black sea bass fact pattern is similar to that of scup.  Both fish populations are healthy.  The abundance of both was at or over 200 percent of target at the end of 2018, but is slowly declining after a historically large recruitment event.  And for both, recreational landings are higher than previously believed, leading to the need for more restrictive regulations to keep anglers within the respective recreational harvest limits.

But after that, things diverge.

The 2011 year class of black sea bass, and the resulting 2012 recruitment and 2014 spawning stock biomass, were the highest recorded in a time series going back thirty years.  Since 2014, spawning stock biomass has been steadily declining, with another big year class in 2015 serving only to slow, but not halt, that decline.  While spawning stock biomass was estimated to be around 240 percent of target at the end of 2018, by 2021 it will probably have fallen to about 160 percent of target, which is still very good, represents an unquestionable decline.

The operational assessment states that

“Recent survey indices suggest the recruitment of a large 2011 year class and a strong 2015 year class in both [the northern and southern] regions.  Modest catches over the past few years would indicate that current mortality from all sources is lower than recent recruitment inputs to the stock, which has resulted in a spawning biomass that is well above the management target.  Despite uncertainty associated with the most recent year estimates, exploitable biomass is expected to decrease in coming years due to a poor 2017 cohort along with declining abundance of the 2015 cohort.”

So yes, the stock is declining.  In addition, black sea bass is a more popular food fish than scup, and commercial fishermen have had no trouble landing their entire quota.  Although the commercial quota will nearly double in 2020, which may create some market issues, there is little reason to believe that the commercial sector won’t at least come close to catching their quota next year.  There will probably be very little, if any, unusued commercial quota to offset any recreational overage.

The recreational quota increased substantially, too, but that increase was more than absorbed by the new estimates of recreational landings, which were much higher than previously believed.  Because of that increase, 2019 recreational landings are expected to be around 7.33 million pounds, and would require a 20 percent reduction to constrain such landings to the 5.81 million pound recreational harvest limit for 2020.

Achieving such reduction would require changes to the federal regulations (again, state regulations differ particularly in the Northeast) that would amend the current 15-fish bag limit, 12 ½-inch minimum size and season that runs from February 1-28, and May 15-December 31 to either a 6-fish bag, with the same minimum size and season, or to a season that ran from February 1-28 and July 6-December 31, with the current minimum size and bag limit.

States between Maine and New Jersey, which already have regulations much more restrictive than the federal rules, would have to find ways to make their own 20 percent cuts in harvest.

Such harvest reduction was not embraced by the Black Sea Bass Advisory Panel, which opposed any cuts and believed that, if anything, landings should be increased.  The Black Sea Bass Monitoring Committee noted that it is difficult to constrain landings when sea bass are abundant, that the stock has mantained itself at high levels despite multiple years of recreational overharvest, that warming winter waters may result in the production of more large year classes, that there are signs of a strong 2018 year class, that the need for harvest reductions was largely driven by allocation and changes in recreational estimates and not a conservation need, and that the size of the needed reduction wasn’t known until the operational assessment came out in August.

In consideration of those factors, the Monitoring Committee recommended that no changes be made to recreational black sea bass regulations, and that the 2019 status quo be maintained.

As a result, the Monitoring Committee recommended, and the Council adopted, not only status quo recreational rules, but a situation in which recreational landings would total 7.33 million pounds, recreational discards would account for another 2.64 million pounds, commercial landings would be 5.58 million pounds and commercial discards would add 1.40 million pounds, for an overall 2020 catch of 16.95 million pounds.

Because of the Council’s actions on Wednesday, 2020 black sea bass landings probably won’t exceed the overfishing limit, but are expected to exceed the recreational harvest limit by 26 percent, the recreational annual catch limit by 23 percent, and the acceptable biological catch by 12 percent.

That latter point, exceeding the 15.07 million pound acceptable biological catch previously established by the Council’s Scientific and Statistical Committee, creates a substantial legal issue, as Section 302(h)(6) of Magnuson-Stevens states that each regional fisheries management council must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established [elsewhere in the law]  [emphasis added]”

The National Standards Guidelines developed by NMFS provide some guidance on what that means.

In those guidelines, “Catch” is defined as

“the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries.  Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded.”

“Acceptable biological catch” is

“a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the calculation of [the overfishing limit], any other scientific uncertainty, and the Council’s risk policy.”

And an Annual Catch Limit is

“a limit on the total annual catch of a stock or stock complex, which cannot exceed the [acceptable biological catch], that serves as a basis for invoking [accountability measures].  An [annual catch limit] may be divided into sector ACLs.  [emphasis added]”

When you apply those guidelines to the Mid-Atlantic Council’s recent black sea bass actions, a number of problems emerge.

First, there’s the fact that the newly recommended regulations, if adopted by NMFS, will result in a recreational catch that exceeds the nominal annual recreational catch limit by more than 20 percent, and thus should trigger the need for accountability measures being imposed in 2021, even though anglers followed the Council’s newly-adopted rules.  

There is a real question as to whether a management action that has less than a 50 percent chance of constraining recreational landings to the recreational harvest limit is even valid under the rule created by the court in Natural Resources Defense Council v. Daley, 209 F. 3^rd 747 (DC Circuit, 2000), which requires that fishery management actions must have at least a 50 percent chance of success to be deemed valid.

Then there’s the question as to whether the stated annual recreational catch limit of 5.81 million pounds is a valid figure at all, or whether the true recreational catch limit is the 7.33 million pounds of black sea bass that will probably be landed pursuant to the status quo regulations recommended by the Council.  

That’s a very important question, because as stated above, the annual catch limit may not exceed the acceptable biological catch.  Yet the Monitoring Committee report states that, with the status quo rules in effect, the 2020 black sea bass catch will exceed the ABC by 12 percent.

That would seem to be a clear violation of both the Guidelines, which don’t have the force of law, and Section 302(h)(6) of Magnuson-Stevens, which obviously does.

NMFS could try to get out of that bind by arguing that the recreational catch limit really is 5.81 million pounds, and that, added to the other sources of catch, still results in a catch limit that is below the ABC.  However, they tried a similar argument before, up in New England, and failed.  

The action titled Conservation Law Foundation v. Pritzker, 37 F. Supp. 3^rd 254 (Dist. Ct. DC, 2014) was brought after NMFS adopted an annual catch limit for Gulf of Maine cod that was below the relevant acceptable biological catch, but then also adopted something called a “potential total catch” that included both the annual catch limit and a limited carryover of uncaught cod from the previous year, which taken together exceeded the ABC.

NMFS argued that such structure passed muster under Magnuson-Stevens, because the designated annual catch limit remained below the ABC, and did not include any possible carryover, but the court dismissed that argument, saying

“It is simply nonsensical to claim that the ultimate bound set on the amount of fish caught yearly is not an annual catch limit.  The ‘total potential catch’ is plainly an ACL, and ACLs may not exceed the [Scientific and Statistical] Committee’s recommended levels.

“…If the [National Marine Fisheries] Service’s actions violate the plain language of the Act—regardless of whether those actions are good policy or would otherwise be acceptable under the Service’s own regulations—then that is the end of the Court’s inquiry.”

The “potential total catch” was found to be the true annual catch limit.  

Following the logic of the court’s decision in Conservation Law Foundation v. Pritzker, it would not be difficult to decide that the 7.33 million pounds of recreational black sea bass landings likely to result from status quo regulations would also constitute the “ultimate bound on the amount of fish caught yearly,” would thus represent the true 2020 recreational catch limit for black sea bass, and that such catch limit, when combined with the other sources of catch, is invalid, as it would lead to an annual catch limit higher than the ABC.

It’s possible that NMFS is aware of another provision of Magnuson-Stevens that would justify adopting status quo regulations, and it’s also possible that the agency will ultimately reject such regulations based on the principles set forth above.  It’s also likely that, from a practical legal standpoint, it won’t really matter, because the big conservation groups aren’t really focused on black sea bass management and, as in the case of scup, are unlikely to challenge the Council’s black sea bass decision—should NMFS endorse it—in court.

And that’s too bad, because there is an important issue at stake.

While the Council had good reasons to support the status quo regulations, I’ve been involved with fisheries issues long enough to know that people can always find a good reason for doing the wrong thing.  And violating the clear language of Magnuson-Stevens, for any reason, is wrong.

The federal fisheries management system works so well exactly because Magnuson-Stevens lays out strict standards that the regional fishery management councils, and NMFS, must follow, no matter how badly they might want to do otherwise.  

If the NMFS and the councils are allowed to let those standards slide, just because they think that they have a good reason tor ignore the law, it will just keep getting easier and easier to find more good reasons to make exceptions to Magnuson-Stevens' management standards.

Do that long enough, and federal management could easily lose its effectiveness, and begin to look like what passes for management at the ASMFC, where the various management boards are skilled at finding reasons not to make the hard decisions needed to conserve and rebuild the fish stocks that they are entrusted to protect.

Sometimes, upholding the law and sticking to standards can lead to needlessly harsh and unpopular actions, that seem to make little sense at the time.  But it’s better to be needlessly strict on a few occasions, and maintain healthy fisheries, then to let standards lapse and allow years of hard-won gains slip away.