IS THE BLUEFISH REBUILDING AMENDMENT GOOD ENOUGH FOR GOVERNMENT WORK?

Last Tuesday, the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Bluefish Management Board met to discuss and approve the final version of the Bluefish Reallocation and Rebuilding Amendment to the Bluefish Management Plan, and send the completed document on to the National Marine Fisheries Service for review and implementation.

They began with a pretty good draft prepared by Council and ASMFC staff, which I discussed in more detail in last Sunday’s edition of One Angler’s Voyage.  And as I predicted last Sunday, once the Council and Management Board got their hands on the document, they chipped away at some of the staff’s good work but, thanks to the strictures of the Magnuson-Stevens Fishery Conservation and Management Act, ended up with an amendment that should put the bluefish stock on the path to rebuilding, and get such rebuilding done within a reasonable time.

What emerged from Tuesday's meeting wasn’t bad.  Now, NMFS must review the amendment to determine whether it is consistent with Magnuson-Stevens and with existing regulations, and then examine the entire administrative record, including the public comment, and decide whether that record supports the amendment’s conclusions.

NMFS may then approve the amendment in full, disapprove it in full, or approve it in part, while disapproving certain provisions.

In most cases, the Council’s management measures are approved in full.  NMFS then issues proposed regulations reflecting such measures, calls for public comment, and then issues final regulations that are either identical to the proposed rules, or contain one or two small tweaks made in response to comments received.

But it doesn't always happen that way.

So will the new bluefish amendment be fully approved?  That's probably the most likely outcome, but it is also possible that NMFS might balk at one of the amendment’s key provisions—the rebuilding plan itself.

Although rebuilding is usually the focus of any amendment addressing an overfished stock, it was only one of six issues considered by the Mid-Atlantic Fishery Management Council (a seventh, state-specific issue was also considered by the ASMFC).  That's because the reallocation and rebuilding amendment began life simply as a reallocation amendment, with rebuilding only tacked on after the 2019 operational stock assessment found bluefish to be overfished.

Three of the other five issues in the new amendment only address allocation issues.  There is no reason to believe that any of them will meet with any resistance at NMFS, although 

However, the proposal that addressed the commercial/recreational allocation led to an interesting debate. 

The current allocation, which awards 83% of landings to the recreational sector (at least in theory, although a provision allowing inter-sector transfers of unlanded recreational quota historically gave the commercial sector far more than 17% of the overall estimated harvest), was based on reported commercial landings and estimated recreational landings during the years 1981-1989. 

During those years in the 1980s, anglers kept most of the blues that they caught, but that began to change in the early 1990s, as catch-and-release began to dominate the fishery.  By 1994, recreational fishermen were releasing about two-thirds of the bluefish that they caught, a trend that has remained unchanged for more than 25 years. 

It doesn’t make sense to use landings to govern a largely catch-and-release recreational fishery, in which the angling experience is valued more than dead fish on the dock.  Thus, Council and ASMFC staff suggested that managers adopt a new allocation based on each sector’s catch, rather than their landings.  While such change didn’t completely reflect the realities of the fishery, as “catch” was defined as landings plus fish that died after release, and not all fish actually caught, it was one step in the right direction of managers considering the characteristics of the fishery that they were managing, instead of applying a one-size-fits-all landings-based measure.

The staff-preferred approach would have shifted the bluefish allocation from 83% recreational/17% commercial, and instead would have awarded 87% of the fish to the recreational sector, and 13% to the commercials.

But like any allocation change, that suggestion was hotly contested by those losing quota.  Commercial representatives on both the Council and the Management Board immediately put up a substitute motion to retain the status quo.  Commercial fishermen naturally supported the substitute motion, as did representatives of the for-hire fleet, many of whom have participated in both the commercial and recreational sectors.  Most made the expected argument that giving up quota would cause them economic harm, although others were a bit more creative.

Earl Gwin, a Council member from Maryland, argued that increasing the recreational quota at the expense of the commercial sector was equivalent to

“taking food out of people’s mouths who want to buy it at the fish store.”

More than one seized on the prevalence of catch-and-release in the recreational fishery to argue that if the anglers are releasing their fish, a quota increase wasn’t needed.  To that end, Emerson Hasbrouck, the Governor’s Appointee from New York, observed that

“People are going to release them all, so there is no need for additional [recreational harvest limit].”

Perhaps it was such statements that triggered the most curious, and most inaccurate, comment of the debate, made by Tom Fote, the Governor’s Appointee from New Jersey, who claimed that the fishery was trending toward catch-and-release only because decreasing bag limits were pushing harvest-oriented anglers out, so that only catch-and-release anglers were left.  Other anglers could justify fishing when they could take 10 or 15 bluefish home, Fote argued, but

“When you put a 3-fish bag limit on…You’re forcing the recreational fishery, the subsistence fishermen, out.”

The only problem with his argument is that it is totally unsupported by the facts.  As noted earlier, catch-and-release began to dominate the fishery around 1994, while the 3-fish bag limit was only adopted for the 2020 season.  Thus, for more than two-and-a-half decades, states allowed anglers to retain between 10 and 15 bluefish each day, and despite such liberal limits, anglers still released two-thirds of their fish.

But Fote apparently decided that if the facts didn’t support his chosen position, then instead of adopting an alternative argument supported by facts, he’d instead adopt alternative facts that supported his argument, an approach that is, unfortunately, all too often used in today's world.

Those opposed to maintaining the status quo did so for a number of reasons, but almost all agreed that it was best not to base future bluefish management on the landings patterns that prevailed thirty to forty years ago. 

Massachusetts Fishery Manager Nichola Meserve summed up most of the points in her argument against the status quo, when she noted that the recreational allocation should not be based on old, and subsequently revised, landings estimates, which no longer represented the best available science.  She also noted that the allocation should be updated to reflect the current use of the bluefish resource, rather than the use of the resource some decades ago.

Most of the ASMFC states apparently agreed, for when the question was called, only Rhode Island and Florida supported the status quo.  At the same time, it was fairly apparent that the original motion, and its 87%/83% allocation, would probably be voted down, too.

Thus, Anthony DiLernia, a Council member from New York, put a new motion to substitute on the table.  It was intended to represent a compromise between the initial motion and the status quo, although what it did, more than anything else, was validate the old adage that “A camel is nothing more than a horse, designed by a committee.”

Remember the two major lines of debate that shaped the reallocation issue?  One was that the 1981-1989 base years were too far in the past to be used for future allocations; the other was that, because anglers now release most of their bluefish, allocation should be based on catch rather than landings. 

The substitute motion, perhaps trying to be all things to all people, based allocation partially on catch and partly on landings, and used three different data sets, one from the years 1981 through 2018, one from the years 2004 through 2018, and one from the years 2009 through 2018.  Such allocation would award 86% of the bluefish to the recreational sector, and 14% to the commercial fishery.

It was a mismash of the good and the bad, of old and new data, of catch and of landings.  Although one of the options drafted by Council and ASMFC staff, it had no central focus, but instead threw all of the possibilities into one big, inconsistent mélange.

But it gave anglers more than they had under the status quo and took away less from the commercials than did the staff recommendation, so philosophical inconsistencies apart, it gave everyone a chance to walk away feeling like they won something, and garnered an overwhelmingly favorable vote which, in itself, is a sort of victory when dealing with allocation issues.

In the long run, the outcome probably doesn’t matter, as another allocation measure permits the inter-sector transfer of “unused” quota, and so defeated many anglers’ calls to manage the fishery for abundance rather than for yield.  

But given that annual catch limits are expected to remain low for quite a few years, making any such transfers unlikely, the new allocation will allow those anglers who do take home bluefish to enjoy a marginally higher harvest, while the commercial fleet might, if they can find the discipline to actively manage their harvest, be able to take advantage of the lower landings to glean a higher market price.

The Council and Management Board also adopted a measure that reallocates commercial bluefish harvest among the states, slightly revised the goals and objectives of the management plan to recognize that intentionally released fish should not be deemed “discards” and also to recognize consumers’ interest in the fishery, and determined that management uncertainty should be calculated at the sector level.  

Only the latter measure has real management impact, as commercial fishermen will no longer be impacted by uncertainty arising out of recreational landings estimates, while anglers will no longer be affected by uncertainty related to commercial fishing activities.

And then, of course, there was the rebuilding plan.

Council and ASMFC staff recommended a 5-year rebuilding timeline, based on what is known as a “P*,” or probability of overfishing, approach, that was consistent with the Council’s risk policy.  Alternatives included a 4-year rebuilding timeline, which would have seen annual catch remain constant throughout that time, and a 7-year rebuilding timeline, which required fishing mortality to be maintained at a constant rate throughout the rebuilding period.

The 4-year plan would have kept landings lower than they needed to be in the later years of the rebuilding period, when a larger biomass could have supported additional removals, while the 7-year plan would have elevated landings to perilously high levels early in the rebuilding process, when the stock was at its lowest level of abundance, increased the likelihood of overfishing, and violated the Council’s risk management policy.

Despite the increased risk posed by the 7-year plan, the higher harvest it promised early in the rebuilding process was attractive to the commercial and for-hire industry members who dominate both the Council and the Management Board, and to some recreational representatives.  Thus, a motion to approve it, rather than the recommended 5-year rebuilding plan, was quickly made.

Supporters of the 7-year plan were quick to cite both scientific and management uncertainty as reasons to support the longer rebuilding period, which made little sense, as uncertainty only increases as one extends rebuilding times.  

Some, despite their lack of scientific credentials or, in most cases, even a minimal scientific education, were quick to conclude that management measures would not rebuild the bluefish stock, and that, even though the stock has been overfished for every year but one since 1985 (and perhaps before), it was natural influences, rather than overfishing, that caused the bluefish’s current decline.

Tom Fote typified that sort of comment when he complained that

“I think we’re making commercial and recreational fishermen suffer enough…based on we don’t know what…I’m not sure that we understand what’s going on with the stock,”

apparently ignoring the fact that anyone who bothered to read the last operational stock assessment does know that the stock experienced overfishing in every year between 1985 and 2017, which might suggest why it is overfished today.

Capt. Paul Risi, a Council member from New York, generally agreed with Fote, and opined that

“You kind of get to the point in regulations where it doesn’t have any effect if the stock isn’t responding naturally,”

which may well be true.  The problem is that there is no clear evidence that the stock wouldn’t be “responding naturally” if appropriate regulations had been put in place.

Others fell back on the old, tired argument that bluefish abundance is due to a “cycle” and was largely unaffected by management efforts, although none chose to explain what the cause of such “cycle” might be (e.g., regular, predictable fluctuations in water temperatures, periodic shifts in the availability of forage fish, or even pulse overfishing), nor did they choose to elaborate on why, if such “cycle” exists, appropriate regulation couldn’t be used to offset its most severe effects.  After all, if the “cycle” means that the ocean will be producing fewer bluefish for a while, doesn’t it make sense to remove fewer from the population during that time, to prop up the biomass for a quicker recovery when the "cycle" again favors increased abundance?

Dr. Justin Davis, the Connecticut fisheries manager, tried to inject some rationality into the debate, admitting that scientific uncertainty clouds the bluefish assessment, but also asserting that, given the state of the stock, it doesn’t make sense to depend on some change in bluefish migration patterns to solve the stock’s problems.  He admitted that, however justified they might have been at the time, some “questionable” management decision made in 2019 probably hadn't adequately constrained recreational landings.

While the bluefish fishery isn’t identical to that for striped bass, and the Council isn’t involved with striped bass at all, the arguments were very similar to those made at last month’s meeting of the ASMFC's striped bass management board, with one faction favoring science-based conservation measures while the other held science in lower regard, and favored the highest level of landings that they could get away with.  At the Management Board, a lot of the same people were involved, and many played about the same roles.

Thus, Megan Ware, a fishery manager from Maine who championed striped bass conservation, made a substitute motion to adopt the 5-year, P*-based bluefish rebuilding plan, which was seconded, for the ASMFC, by Cherie Patterson, a manager from neighboring New Hampshire who also has strong conservation credentials. 

In making her motion, Ms. Ware stated her concern that, if the Council chose to ignore its risk policy when managing bluefish and other species (they had done so for Atlantic mackerel a short time ago), does a “policy” really exist?  She also cited public comments that supported rebuilding the stock, and argued that the five-year rebuilding option struck a middle ground between managing for abundance and managing for yield.

Significantly, an identical motion was made for the Council by Michael Pentony, NMFS’ Regional Administrator for the Greater Atlantic Regional Fisheries Office (and seconded by Virginia fishery manager Ellen Bolen), who noted that the motion is consistent with the Council's risk policy, and that unlike the 7-year option, didn’t expose the bluefish stock to greater risk during the early years of the plan, when the stock was still in its most vulnerable position.

Unfortunately, the substitute motion was not supported by the majority of the Bluefish Management Board, and was defeated on a vote of 6 in favor, 9 against, with North Carolina casting a null vote.  Immediately after that happened, the 7-year rebuilding option was approved, with the Council voting in favor, 13-7, and the ASMFC approving it by an even wider margin, 12 in favor, 3 against, and North Carolina again a null vote.

Mr. Pentony voted against at the Council, as did Max Appelman, the NMFS representative on the Management Board.

Earlier in the debate, Mr. Pentony expressed his concerns with the 7-year option, noting that if it adopted such rebuilding plan,

“the Council will have to amend the risk policy that we just adopted.  Either we have a risk policy or we don’t.”

Later on, Adam Nowalsky, who serves both as a Council member from New Jersey and as a Governor’s Appointee at the ASMFC, attempted to challenge Mr. Pentony, asking why it was acceptable to make an exception to the Council’s risk policy for mackerel, but might not be acceptable for bluefish.

In response, Mr. Pentony explained that while he also had some concerns with amending the risk policy with respect to Atlantic mackerel, the decision to approve or disapprove a management measure is made after viewing the entire administrative record.  In the case of mackerel, the Council made a strong argument for amending the risk policy for “a short duration,” and that there was a “marginal difference” between the rebuilding plan that was ultimately adopted and the one that would have been adopted under the risk policy.  He said that it was “not clear whether the same considerations would apply” to again amending the risk policy in the case of bluefish.

And thus the question remains.

The Council and Management Board have crafted a bluefish rebuilding amendment that, if the projections are accurate, should rebuild the stock within this decade, and well within the timeline permitted by Magnuson-Stevens.

At the same time, they crafted a plan that is not without flaws, and that would expose the rebuilding stocks to risks that exceed those deemed acceptable by the Council’s own policy.

Representatives of NMFS have already expressed some concerns, concerns that were significant enough to cause them to vote against the 7-year rebuilding plan.

On balance, the approved plan isn’t bad.  But from the perspective of federal fishery managers, is it good enough for government work?

Or should parts be disapproved, and better measures adopted?

Only time will tell.