MAGNUSON-STEVENS: MAKING A GOOD LAW BETTER

 Last Monday, Rep. Jared Huffman (D-CA), Chairman of the House Natural Resources Water, Oceans, and Wildlife Subcommittee, along with Rep. Ed Case (D-HI), introduced the Sustaining America’s Fisheries for the Future Act.  The Act represents the latest effort to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, and amend that law to better address problems currently facing the living marine resources of the United States.

Magnuson-Stevens has typically been reauthorized every ten years or so; however, the last reauthorization occurred back in 2006, when new requirements to govern all managed fisheries with annual catch limits, to hold fishermen accountable when such limits were exceeded, and to constrain catch in such fisheries to or below the level established by each regional fishery management council’s Scientific and Statistical Committee were added to the law.

The reauthorization before that one produced the Sustainable Fisheries Act of 1996 which, for the first time, created real, legally-enforceable standards for federal fishery managers, led to the elimination of overfishing in most domestic fisheries, and to the complete rebuilding of 47 once-overfished stocks.

For a while, it appeared that each reauthorization effort fine-tuned Magnuson-Stevens just a little bit more, and made it a better and more effective law.

Unfortunately, for a number of years we have seen legislation that, if it had been adopted, would have reversed that trend, and slashed key provisions out of the current law.  Whether we’re talking about H.R. 4742, introduced by Rep. Doc Hastings in the 113^th Congress, or H.R. 1335 (114^th Congress), H.R. 200 (115^th Congress), H.R. 3697 (116^th Congress), or H.R. 59 (117^th Congress), all were sponsored by Rep. Don Young (R-AK), and all would have caused real harm to what is now the most effective, and most successful, marine fishery law in the world.

So we should probably be happy that Magnusson-Stevens was not reauthorized in recent years.

But now, with the introduction of Rep. Huffman’s bill, there is reason to hope that we will see not only a new reauthorization, but also a reauthorization that continues the tradition of fine-tuning Magnuson-Stevens and making it a more effective tool for fishery conservation and management.

Rep. Huffman didn’t draft his bill in haste.  Before embarking upon that process, he first held “listening sessions” in all of the regions represented by fishery management councils; I was invited to speak at the Mid-Atlantic session, where I joined a panel of anglers, commercial fishermen, conservationists, and academics to provide our views on the law.  Similar panels, convened on every coast, gave the Congressman a chance to hear a wide variety of viewpoints, and to understand why stakeholders were calling for change.

After that, “discussion drafts” of the bill were created, and sent out for further comment, to better assure that the bill, once introduced, would be on the right track.

So the bill that was finally introduced this week represented close to two years of inquiry, investigation, and conversation, all aimed at improving the nation’s premier marine fisheries law.

Upon introducing the legislation, Rep. Huffman stated that

“Americans coast-to-coast depend on healthy oceans and fisheries…We know that the MSA has worked well, but new approaches are needed in this era of climate change, new technologies, evolving science needs, and increasing ocean use…With the Sustaining America’s Fisheries for the Future Act we can strengthen fishing communities and ensure a high standard of sustainable fisheries continues well into the future…”

Rep. Case, the bill’s co-sponsor, noted

“…This reauthorization provides critical updates to ensure the long-term sustainability of our fisheries by integrating climate change as a critical consideration.  I’m especially pleased that this bill includes significant reforms to promote accountability, transparency and representation for our nation’s fisheries management councils…These are long overdue and necessary reforms to ensure long-term public trust in the work that these councils are doing on behalf of our nation.”

The Sustaining America’s Fisheries for the Future Act is a broad bill that touches on many different facets of the fishery management process, from funding ways to maintain working waterfronts and addressing the impacts of climate change on regional fisheries to adopting a new, minimum probability tof success for stock rebuilding after the initial rebuilding plan fails and a new plan must be put in place.

So what does the bill do?

Title I is called “Climate-Ready Fisheries,” and tries to force federal fishery managers to come to grips with climate change, which is a particularly serious problem off New England and the upper mid-Atlantic, something Rep. Huffman has acknowledged, saying

“We heard concerns about climate change everywhere.  But the concerns are different depending on where you are.  So in the North Atlantic, it’s ground zero for shifting stocks…”

The bill directs federal fishery managers to take account of climate-related stress in fishery management plans, and to identify the stocks most vulnerable to climate change in order to develop ways to maximize such stocks’ resilience to changing ocean conditions.

Another provision establishes a process for a regional fishery management council, or the Secretary of Commerce, to determine whether a stock has expanded into the jurisdiction of another council, and also to determine how such expansion ought to influence the management process.  Hopefully, such provision might finally offer a solution to the continuing problem of quotas, fixed decades ago when fish were distributed far differently along the coast, that are now held by fishermen located hundreds of miles from the fish, while fishermen who have fish minutes from their docks can’t participate in that abundance, because they have little or no quota at all.

It’s difficult to see any solution to that problem so long as regional fishery management councils continue to side with existing quota holders, instead of embracing change.  For that reason, I’m a little disappointed that the version of the bill that was finally introduced did not call for the creation of a “shifting stocks task force,” composed of people who do not sit on the councils, charged with establishing objective standards for reallocation, and empowered to address the situation existing in any fishery cited in a petition filed by any member of the public.

That sort of task force might have finally forced the resolution of existing quota problems, yet even without it, the bill would take us to a better place than we were in before.

Title II deals with strengthening fishing communities.  It’s where issues such as fisheries disaster relief, supporting working waterfronts, and aid with seafood marketing is housed.  They’re important issues, but not directly tied to conservation, so I’ll leave them for others to describe.

Title III is referenced “Strengthening public process and transparency,” which makes its purpose pretty clear.  Although not directly addressing conservation issues, it would create an environment where good public policy, including conservation measures, could more easily thrive. 

One way it would do that is to make some meaningful changes on the federal fishery management councils, increasing tribal representation on the Pacific and North Pacific fishery management councils, and providing for a voting seat for a New England Fishery Management Council liaison on the Mid-Atlantic Fishery Management Council and a voting seat for a Mid-Atlantic liaison on the New England Council.  The latter two liaison seats are intended to protect the interests of fisheries that cross jurisdictional borders, and are just one more example of how the Sustaining America’s Fisheries for the Future Act is addressing issues caused by shifting stocks driven by climate change.

For all regional fishery management councils, the bill would require roll call votes on all non-procedural matters, so every member’s voting history would be a matter of public record.  Councils are directed to try to hold meetings in person, but to also make remote meeting and voting available.  The bill would also shore up conflict of interests standards somewhat, get a greater diversity of stakeholders, including members of the academic and environmental communities, into council seats, and expand protections against sexual harassment and assault.  One notable provision would require at least one seat on each council to be filled by individuals who have no financial interest in the fisheries being managed.

Title IV addresses one of the hottest issues in fishery management, and particularly in recreational fishery management, modernizing fishery science and data.  It encourages the expansion and improvement of electronic technologies used in fishery management, along with uniform standards for such technologies.  Title IV also includes language that would require the Secretary of Commerce to provide a detailed report on the stock assessment process, including the methods used, the assessments completed and not completed during the previous year, a schedule of planned assessments, a description of data needs, and a description of the technologies that are and could be employed to collect needed information.  Recognizing that cooperative research may provide the means to fill some research needs, Title IV creates a comprehensive framework for authorizing and funding such research, and also authorizes a Northeast Regional Pilot Research Trawl Survey and Study to complement current studies conducted in the region by the National Marine Fisheries Service.

Recreational data concerns are included in Title IV as well.  One of the bill’s provisions would provide, in part, that

“If recreational catch data for a stock of fish come from more than one survey program, such as Federal and non-Federal sources, including from States or Marine Fisheries Commissions, the Secretary shall implement measures, which may include the use of calibration methods, as needed for the timely integration of such data to ensure consistent methods and approaches are used for monitoring of catch against the relevant annual catch limits and for other fishery science and management purposes.”

Such language, should the bill become law, should go a long way to avoid the sort of debacle that recently occurred at the Gulf of Mexico Fishery Management Council where recreational fishermen, trying to avoid the consequences of their excess red snapper landings, deferred the needed data calibration process for two more years, and thus exposed the rebuilding red snapper stock to additional, and unnecessary, risk.  Another provision would initiate a long-term data improvement process, in which data needs, and the ways that managers might fulfill them, would be subject to periodic and ongoing review.

Finally, Title V would address traditional fishery and habitat conservation concerns.  The essential fish habitat section of Magnuson-Stevens, which is in many ways the current law’s most toothless provision, would be generally bolstered, while provisions dealing with habitat areas of particular concern would be significantly strengthened.  Language would also be added to strengthen provisions designed to eliminate or minimize bycatch in federal fisheries. 

Title V would strengthen the language that requires managers to end overfishing.  It would also add new criteria for determining when a fishery management plan is failing, and must either be amended in order to achieve rebuilding by the specified rebuilding date or, in the alternative, declared a failure and replaced with a new plan.  

In what might be one of the shortest but most significant provisions in the entire bill, the legislation provides that, in the event that a fishery management plan fails to rebuild a stock by the required time, any subsequent rebuilding plan must have at least a 75% probability of success, instead of the 50% probability established as a minimum standard in Natural Resources Defense Council v. Daley two decades ago.  Should such standard ever become law, it is possible that shattered stocks such as Georges Banks or Gulf of Maine cod, or Southern New England/Mid-Atlantic winter flounder, might finally have a fighting chance to rebuild.

And because healthy stocks of larger fish depend upon having healthy stocks of forage to feed on, the bill would create new protections for forage fish stocks, to assure that they will be able to fill their role in the food web.

As long as it was, the above review only hit the high points of the Sustaining America’s Fisheries for the Future Act, and concentrated on those provisions directly related to the conservation of fish stocks.

Capitol Hill is a strange place, particular over the past few years, and it is impossible to predict whether the law will find passage before the 117^th Congress ends about 17 months from now, or what it will look like if it does.  For the bill still has a long way to go, past committee hearings, staff negotiations, floor votes, and—if everything happens as we hope—the President’s desk.  A lot can happen, and a lot of changes can be made, over that time.

But right now, we’re in a win-win situation.  If the bill fails to achieve passage, U.S. fisheries will still be governed by the best fisheries management law in the world.  And if the bill is finally is signed into law, we’ll still be governed by Magnuson-Stevens, but the best fisheries management law in the would will be even better than it had been before.

 

 

 

 

 

 

 

REBUILDING STRIPED BASS--WITHIN 10 YEARS

One of the most frustrating aspects of the Atlantic States Marine Fisheries Commission’s striped bass management program is the Atlantic Striped Bass Management Board’s repeated failures to put a 10-year rebuilding plan in place, even when it’s called for in the management plan.

Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass contains two “management triggers” that supposedly require the Management Board to put such rebuilding plan in place.  The first is Management Trigger 2, which reads

“If the Management Board determines that the biomass has fallen below the threshold in any given year, the Board must adjust the striped bass management program to rebuild the biomass to the target level within [no more than 10 years.]”

That trigger is tripped when the stock becomes overfished. 

It has now been over two years since the last benchmark stock assessment, which found striped bass to be overfished, was formally released, but there is not yet a rebuilding plan in place, despite the fact that Max Appelman, ASMFC’s former Fishery Management Plan Coordinator for striped bass, clearly advised the Management Board, at it’s August 2019 meeting, that

“the clock is sort of ticking, and the ten year clock began in May when the information [in the benchmark assessment] was presented to the Board,”

and then later reinforced that message, saying

“The ten-year timeframe, the clock is ticking on that yes.”

The other rebuilding-related trigger, Management Trigger 4, comes into play when the stock is declining in the face of increasing fishing mortality, but has not yet become overfished.  That trigger reads,

“If the Management Board determines that the female spawning stock biomass falls below the target for two consecutive years and the fishing mortality rate exceeds the target in either of those years, the Management Board must adjust the striped bass management program to rebuild the biomass to a level that is at or above the target within [no more than 10 years].”

That trigger was tripped in 2013, after a benchmark stock assessment revealed that the parameters specified in Management Trigger 4 had been met.

But in 2014, as in 2019, no 10-year rebuilding plan was initiated.

In the latter case, ASMFC staff was complicit in the Management Board’s inaction.  Michael Waine, then the Fishery Management Plan Coordinator, advised the Management Board, at its August 2014 meeting, that

“Management Trigger 2 [sic] in Amendment 6 says that you need to rebuild the [spawning stock biomass] back to its target over a specified timeframe that should not exceed ten years.  I think that there is sort of a combination of things happening.  The board is acting to reduce [fishing mortality].  Through that action we see the projections showing that [spawning stock biomass] will start increasing towards its target, but we’re uncomfortable with projecting out far enough to tell you when it will reach its target because the further on the projections we go the more uncertainty that is involved.  Therefore, I think the trend is to get back towards the target, but we can’t tell you just how quickly that will happen.”

Waine’s comment explain why it is so difficult for the ASMFC to rebuild the striped bass resource. 

Both in 2014 and in 2019, the rebuilding triggers were not the only management triggers that were tripped; triggers requiring reduced fishing mortality also came into play, and on both occasions, the Management Board did take action to reduce fishing mortality to or below the target. 

The prevailing attitude seems to be that, if fishing mortality is reduced to target, rebuilding will eventually take care of itself. 

At one of the Plan Development Team meetings held earlier this summer, to put together some options for the draft Amendment 7, we saw the same kind of thinking when one of the Technical Committee members somewhat condescendingly said (I may get the precise words wrong, but I know I’ve captured the spirit)

“What a lot of people don’t understand is that when we reduce fishing mortality to target, rebuilding is going to occur.”

We actually understand that fact just fine.  But what the Management Board, maybe some Council staff, and perhaps even some Technical Committee members don’t understand is that when Amendment 6 sets a 10-year deadline to rebuild the stock, and says that the stock “must” be rebuilt during that timeline, then rebuilding the stock in some longer timeframe, whether it's 13 years, 15 years, or some enigmatic “eventually” isn’t good enough.  Stakeholders want to see the stock rebuilt more quickly than that.

It’s not unreasonable to expect the Management Board to do what it said it would do in its own amendment.

Certainly, stakeholders would celebrate if they did.  When the Management Board solicited public comment on what the draft Amendment 7 should address, changing the 10 year timeline—except, perhaps, to make it shorter—didn’t seem to be atop anyone’s agenda.  There were 529 comments, made in writing and at public hearings, to keep the current 10-year rebuilding timeline, 45 to make it shorter, and none explicitly calling for stretching things out; even it we made the assumption that all of the comments to change the fishing mortality and spawning stock biomass triggers supported a longer rebuilding period, they would constitute just 18 out of 592 comments made, or about 3% of the total.

Emilie Franke, the current Fishery Management Coordinator, noted in her report to the Management Board that

“A majority of comments support maintaining the 10-year rebuilding timeline with a few comments supporting a faster rebuilding timeline.  Many comments noted concern there is not yet a rebuilding plan in place to the address the current overfished status of the stock.  Commenters noted that the Board should adhere to this rebuilding requirement as specified in Amendment 6 and should act quickly to implement a rebuilding plan to address the overall status tock [sic] by 2029 (10 years after the last benchmark stock assessment results were adopted for management use).  Many commenters expressed a need for urgency to implement a rebuilding plan and take action in response to triggers more quickly.”

So delaying rebuilding beyond 10 years certainly isn’t doing the stakeholders any favors.

But what about the comments that Waine made back in 2014, that there is too much uncertainty to put a 10-year rebuilding plan in place?

Frankly, they just don’t fly.

While uncertainty certainly increases the farther out in time one goes, federal fisheries managers, bound to the rebuilding timelines set by the Magnuson-Stevens Fishery Conservation and Management Act, have been able to work with 10-year rebuilding timelines since 1996. 

Initiating a 10-year rebuilding plan is, in practice, a good way to combat uncertainty, because with a plan in place, the stock’s rebuilding progress can be compared to pre-existing benchmarks for its recovery, and the rebuilding plan amended if needed to get the job done.  Waine reassured the Management Board that “The board is acting to reduce [fishing mortality].  Through that action we see the projections showing that [spawning stock biomass] will start increasing towards its target…the trend is to get back towards the target, but we can’t tell you just how quickly that will happen,” but, in the end, the stock didn’t increase at all.

Instead, it continued to decline, in what may have been the clearest possible example of uncertainty causing real harm.

If there had been a rebuilding plan in place, the ongoing decline probably could have been detected, and the matter addressed, much sooner than it was.

Of course, amending a rebuilding plan in mid-course goes against the ASMFC’s predilection for letting even unsuccessful management actions continue on for half a decade or so before trying to fix things, and certainly offends the Management Board’s desire for “management stability” and “flexibility.”

But bureaucratic concerns should never get in the way of rebuilding a fish stock.  After all, keeping fish stocks healthy and sustainable in the long term are the bureaucrat’s primary duties, even if accomplishing such goals might make them work a little harder along the way.

So it’s past time for the Management Board to start taking striped bass rebuilding seriously.  Instead of merely reducing fishing mortality to the target level, andt hoping that the spawning stock biomass will grow as a result, it should also be calculating the reduction in fishing mortality needed to rebuild the stock within the 10-year deadline, and then draft management measures that implement whichever reduction is greater.

And if the Management Board could do that with a 60 or 65 percent probability of rebuilding the stock within 10 years, instead of its usual 50% probability of failure, that would be a good idea, too.

 

STRIPED BASS AMENDMENT 7 BEGINS TO TAKE SHAPE

It takes a long time for the Atlantic States Marine Fisheries Commission to amend a fishery management plan.  

Such amendments take a up a lot of staff time, call for at least two rounds of public hearings, and many hours of work by the relevant management board.  The proposed Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass was initiated less than one year ago, and the fact that it could be completed as soon as next February shows a remarkable level of focus and determination on the part of everyone involved.

Although the Amendment is a long way from finished, it’s beginning to take on some shape.  The May meeting of the Atlantic Striped Bass Management Board determined what wouldn’t be in it; the plan’s goals and objectives, biological reference points, and mandated rebuilding times will remain status quo.

Neither will the Amendment address regional management issues, or commercial allocations, although a separate management action addressing the latter is almost certainly in the cards.

So that much of Amendment 7 is pretty well cast in stone.

However, as I reported a month or so ago, the management triggers are still on the table, with bureaucrats more interested in “management stability” and “flexibility” pushing hard to create additional opportunities to delay taking needed management actions.  That’s something that we’ll have to watch very closely if we hope to rebuild the stock, and keep it from declining again.

As important as it is to get the management triggers right, and to prevent poorly-drafted triggers from undercutting the value of the biological reference points and frustrating the goals and objectives of the plan, the management triggers present a relatively simple issue:  Either the Management Board is required to act quickly and decisively when faced with a potential threat to the stock, or it is allowed to dither and delay.

Other issues present more difficult, and more nuanced, questions.  Because of that, the Striped Bass Plan Development Team has asked the Management Board to consider a number of questions related to recreational release mortality, conservation equivalency, and the recruitment-based management trigger.  Reading those questions provides some hints on what a draft Amendment 7 might look like, although the Management Board’s answers in August will tell us far more.

Recreational release mortality is the first topic addressed, and reading through the PDT questions, just like listening to the PDT meeting on the topic, makes itt clear that the PDT doesn’t really know how to go about addressing the issue.  A lot of that flows from the fact that the Management Board never really explained what the PDT was supposed to accomplish, particularly what magnitude of reductions should be achieved by PDT-designed options.  As the PDT memo notes,

“In the absence of a target for reducing effort (i.e., a percent reduction in the number of live releases), the PDT requests guidance on the range of days, months, or waves the Board would like to consider for coastwide or state-specific closures.  Without additional direction, the PDT can only focus on options for biological and ecological closures, such as seasonal closures for spawning areas and for peak temperature periods.”

While I would argue that any management action, including closed seasons, should only be taken “for biological and ecological” reasons, reality dictates that political and economic considerations are going to come into play as well.  Thus, we may very well see the draft Amendment 7 contain seasonal closures designed to reduce fishing effort in order to reduce release mortality.  

Whether those closures make it into the final document may well depend on whether stakeholders can again turn out the volume and quantity of comments in the next round of hearings that they did the first time around.

The PDT is also asking the Management Board what any closures should look like:

“Should the PDT focus on no-harvest closure options (catch-and-release fishing allowed) and/or no-targeting closure options?”

It notes that

“The PDT assumes maximum reduction of effort, and thus reduction in number of releases, would be achieved with no-targeting closures.  However, the PDT recognizes enforceability concerns and uncertainty around the level of compliance, so compliance would have to be assumed under a no-targeting closure.  With no-harvest closures, angler behavior might shift to catch-and-release fishing trips, thereby increasing the number of releases which is counter to the objective of reducing release mortality.  Additionally, there is no information on the difference in release mortality rates between catch-and-release trips versus trips harvesting striped bass.

“The most appropriate approach may depend on the reason for the closure; for example, implementing a no-targeting closure during high temperature periods when release mortality rates are increased.  Various scenarios and assumptions can be explored with MRIP effort data, likely with high PSEs, but factors like angler behavior are unpredictable and catch-and-release trips are not separable in MRIP.”

Those comments get to the heart of the release mortality issue, because it implicitly recognizes the central truth that release mortality and harvest mortality are inextricably linked, and nearly impossible to separate into neat silos.  

Someone who primarily fishes for recreation, but takes a bass home every now and again, will probably keep fishing during a no-harvest closure, if catch and release is still allowed, while a pure meat fisherman might quit—but it’s impossible to separate the two from the available data.  And it’s also impossible to know, should a non-targeting rule be put in place,  how many of those folks working the rips and the beaches, supposedly for bluefish, are actually fishing for bass.

Thus, the continuing effort to distinguish release mortality from harvest mortality still strikes me as a nearly impossible, and largely pointless, effort.  While I believe that shutting down the entire fishery during the hot depths of summer, when release mortality spikes, is a good idea in some places, in particular the Maryland portion of Chesapeake Bay (Virginia has already closed its summer Bay fishery), the other efforts to isolate release mortality from other removals seems to be little more than an exercise in spinning one’s wheels. 

It would be far easier, and probably far more effective, to place the emphasis on keeping overall fishing mortality at or below target, without spending such time trying to control where such mortality comes from.  Striped bass is primarily a recreational release fishery, and there is little reason to try to reshape it something that it is not.

The other problem with closed seasons, which the PDT recognized, is that a single coastwide closure—one proposal was December 15 through April 15—would have very different impacts in different states.  Here in New York, we’re already closed during that time, and fishermen up in New England would give a big yawn if you told them that they couldn’t fish for stripers during the winter and early spring.  But down south, off North Carolina and Virginia, and in the Chesapeake Bay, that sort of closure would have a much bigger impact.

The other option might be to require each state to close their current seasons for a period of time, to achieve a percentage reduction, but doing that starts looking very much like conservation equivalency, and would be subject to the same sort of shenanigans. 

Thus, although I believe that options for season closures will be a part of the draft Amendment 7, I’m not sure that they’ll make it into the final document, particularly because I expect some good changes relating to the use of conservation equivalency to be included.

Conservation equivalency abuses were one of the hotter topics addressed at last May’s Management Board meeting.  Dennis Abbott, the Legislative Proxy from New Hampshire, noted that conservation equivalency

“is the first item of the ten that we’re dealing with, that really gets to the meat and potatoes of why we have Amendment 7 in the works, and how we got to be overfished and overfishing occurring.

“A little history, in 2009 I was quoted widely that conservation equivalency, as I said was ‘death by 1000 cuts,” and that was in 2009.  There was some reaction to that, positive reaction to that.  But we continued on our merry way.  In 2012 I stated again, and I quote, ‘We have a canary in a coal mine that will probably fall off its perch pretty soon, and it deals with conservation equivalency.

“At that time, we didn’t take any action to limit our catch and change our regulations.  In 2020, I said that the ink wasn’t even dry on the latest addendum, when states had their CEs in the works.  It directly showed after these CEs or conservation equivalencies were approved, that we went from a proposed 18 percent savings with a 50 percent probability of success down to 15.

“In large part, I think that our application of conservation equivalency has surely been a part of how we got there…”   

Only New Jersey was opposed to addressing conservation equivalency in the draft Amendment 7, which is hardly surprising, as New Jersey has probably been the single biggest abuser of that process.  In fact, not long after Richie White, New Hampshire’s Governor’s Appointee, suggested that Amendment 7

“require a conservation equivalency proposal to provide 125 percent savings [compared to the coastwide measures], instead of the 100 percent presently required…

“require conservation equivalency proposals at thresholds of success , using a 75 percent probability of success,…[and provide that] conservation equivalency will not be allowed, if stock is overfished or overfishing is occurring…”

Joseph Cimino, New Jersey’s fishery manager, took exception, saying

“I have rarely seen an item more demonized than this.  I think it’s a shame.  You know we all struggle with MRIP estimates, there are point estimates to talk about, you know accountability in this way, I think is a little bit misguided.  It isn’t for the benefit of the stock.  Those states that don’t take CE have time and again by Board members here said they don’t need to take action…

“Where we’re pretending that 2020 measures will have the same stock conditions, the same environmental conditions, the same fishing pressure as 2017 on paper, to prove we’re going to need 125 percent reduction.  It’s just punitive, it’s not a consideration for the stock.  I don’t know why we keep going down this road…”

Cimino’s comments were rich with irony.

In many ways, he wasn’t wrong. 

All of the factors he mentioned—MRIP uncertainty, striped bass abundance, environmental conditions, and fishing pressure—do vary from year to year.  But he has no problem basing New Jersey’s conservation equivalency proposals, which somehow always allow that state’s anglers to kill more and/or smaller fish than everyone else on the coast, on past data, knowing that conditions will change and render the state’s supposedly conservation equivalent regulations not truly equivalent to the coastwide rules at all.

It’s only when someone suggests that data based on the same considerations be used to hold New Jersey accountable for its regulations’ shortcomings that things such as MRIP uncertainty and changing striped bass abundance become, in Cimino’s mind, a real problem.

What Cimino actually did was create a strong argument against the use of conservation equivalency, for the very reason that uncertain and constantly changing data makes any effort to craft truly conservation equivalent regulations an exercise in futility.

The good news is that the PDT seems to be leaning toward Mr. White’s side of the table.  Its memo to the Management Board advised that

“From the PDT’s perspective, the other front-end measures being developed for CE proposals (e.g., restrictions on when CE can be used, requiring an uncertainty buffer, setting data standards) are a more effective tool to improve the performance of CE in the striped bass fishery.”

Unfortunately, it also noted that

“the PDT recommends the removal of CE accountability options from Draft Amendment 7,”

largely for technical reasons that make calculating state conservation equivalency performance, compared to coastwide management measures, very difficult if not impossible given existing tools.

Even with that deletion, it appears that some very robust proposals to rein in, and perhaps even to eliminate, the use of conservation equivalency will appear in the draft Amendment 7.

The issue of improving the recruitment management trigger also turns on technical issues, so it is probably appropriate that the issue was addressed in a memo from the Atlantic Striped Bass Technical Committee to the Management Board.

Once again, it’s a question of figuring out what the Management Board wants to do.  As the Technical Committee observed,

“If the intent of the trigger is to identify true recruitment failure, i.e., a prolonged period of very low recruitment events as seen during the 1970s and 1980s, then the current trigger would perform adequately.  However, if the Board wants to identify periods of below average recruitment that are not necessarily at historically low levels in order to be precautionary with future management, the trigger should be revised.”

Given that the latter situation—a management trigger that trips when the kind of low recruitment we’ve seen over most of the past 15 years—was what the public comment was focused on, it’s good to see that the Technical Committee provided a number of options to the Management Board.

While the current recruitment trigger only trips when a juvenile abundance index doesn’t rise above the 25^th percentile of its time series for three consecutive years, the Technical Committee suggested that the Management Board might change that standard to only require two consecutive years of 25^th percentile-or-less recruitment, or possibly such recruitment for three out of five years, or maybe a three year average, which would allow the trigger to trip even if recruitment was marginally higher in one of such years.

It also suggested that the reference period could be changed.  Instead of using the entire time series, which included the very low recruitment that occurred during the collapse years in the 1970s and ‘80s, the reference period might be updated to include only the period 1995-2012, when the stock was recovered and relatively healthy, or 1992-2006, when the Maryland juvenile abundance index indicated a period of high recruitment.  That would lead to the recruitment trigger tripping more often.

Whatever options are ultimately chosen, it seems very likely that the draft Amendment 7, and very possibly the final Amendment as well, will include a revised recruitment trigger.

Of course, the fact that there could be a new recruitment trigger doesn’t mean that it will actually trigger any management action.  The Technical Committee acknowledged that,saying

“Currently, no management response is specified for the recruitment trigger; the Board decides on the appropriate response when the trigger is tripped…

“Juvenile abundance indices and model recruitment estimates provide information on the near-term productivity of the stock.  A run of several years poor recruitment results in fewer fish entering the exploitable population and the spawning stock biomass, and levels of removals that were suitable during average or above average recruitment regimes may not be sustainable in the future.  If the Board wants to be proactive about responding to periods of lower recruitment, the Board could redefine the [fishing mortality] target or the rebuilding framework to be more precautionary.”

Unfortunately, “proactive” and “precautionary” have never been words associated with the Management Board; “dilatory” and “risk tolerant” would come much closer to the mark.  Given the Management Board’s choice of “management stability” and “flexibility” as “guiding themes” for Amendment 7, it’s highly unlikely that a recruitment trigger that requires the Management Board to actually get off its collective duff and actually do something proactive if it is tripped will be part of the package.

Still, we can hope.

So, as we gaze into the future, what do we see as the shape of Amendment 7?

The framework of the Amendment will look very familiar, with the same reference points, goals and objectives, and rebuilding time as the current Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass.  

Some parts of Amendment 7 may be streamlined a bit, if the proposed restrictions on the use of conservation equivalency make it into the document, as I suspect that they will.  At the same time, other parts of the Amendment may be made more unwieldy by the addition of clumsy efforts to reduce recreational release mortality, and possible changes to management triggers that allow the Management Board to sit on its hands for two or three years—and perhaps more—when faced with threats to the stock.  Possible changes to the recruitment trigger may beef the Amendment up slightly, but it’s far too early to be sure that will happen.

What we’re looking at now is an Amendment 7 that will be nowhere as bad as we feared it would be just one year ago, but that could still include some serious flaws.  

Yet time still remains on our side.  The draft Amendment won’t be sent to the public before the October Management Board meeting, so there is still plenty of time to see that the Management Board gets things right.

If the Management Board ends up getting things wrong, we will still have the next round of public hearings to set it on the right path.  It probably won’t be easy, but we already did it once ahead of the May meeting; if we remain focused and determined, we should be able to do it again.

On the other hand, if we lose focus, things could still turn out badly, so we need to remain prepared.

 

 

ARE FEDERAL FISHERY MANAGEMENT COUNCILS AGAIN ENABLING OVERFISHING?

 It’s no secret that I’m a big supporter of the Magnuson-Stevens Fishery Conservation and Management Act, which is arguably the most complex and most successful fishery management law in the world, and of the federal fishery management system, which has made significant progress in restoring the United States’ marine fish stocks to health and long-term sustainability.

But Magnuson-Stevens has always been a controversial law.  In the beginning, the regional fishery management councils didn’t take its mandates seriously.  It took a federal appellate court decision, in the case of Natural Resources Defense Council v. Daley, to convince the councils that when the law said that

“Conservation and management measures shall prevent overfishing,”

they couldn't just provide lip service and adopt management measures that they knew were inadequate to get the job done.

As a result of strong fisheries laws, good precedents in the federal courts, and a conservation community that was ready, willing, and able to go into those courts to keep federal fishery managers on the straight and narrow when they started to veer off course, the United States created a fishery management system that, at least as applied by his local North Pacific Fishery Management Council, Rep. Don Young (R-AK) called

“a management system that is considered the envy of the world.”

The problem is that, while the United States’ fisheries management system has been successful, success can breed complacency.  Recently, I have seen reasons to worry that some of the regional fishery management councils are beginning to stray from the strict mandates of Magnuson-Stevens and, in perhaps a cause-and-effect relationship, some of the national conservation organizations that had previously been quick to intervene in council matters are paying less attention to the nuts and bolts of domestic fisheries.

I’m apparently not the only one who has noticed this going on. 

Last week, I came across an article titled “US fisheries are overfishing, again,” written by Molly Masterton, an attorney with the Natural Resources Defense Council.  In that piece, Ms. Masterton observed that

“a new report from NOAA Fisheries, the 2020 Status of Stocks report, shows some concerning trends for the health of U.S. Fisheries.

“Looking at 460 federally managed fish stocks and stock complexes, the report shows a recent increase in the number of overfished stocks.  Meanwhile, no stocks have been rebuilt to healthy levels in the previous year, and eight stocks have become overfished once again after previously successful rebuilding.

“…Despite historic successes in sustainable fisheries management, we have a lot of work to do to prevent backsliding of fisheries conservation…”

I think that Ms. Masterton’s observations are, unfortunately, right on target.

The salient facts, which haven’t changed since before NRDC v. Daley was decided, is that fishermen don’t like being regulated, that regulations often have negative short-term impacts on the recreational and commercial fishing industries, and that most of the people appointed to regional fishery management councils are, in one way or another, connected to the recreational and commercial industries.  

Thus, when faced with a fisheries issue, they are hard-wired to adopt a response that minimizes short-term pain to the fishermen, regardless of the long-term effects on the stock.

When I sat on the Mid-Atlantic Fishery Management Council nearly two decades ago, that wasn’t the case.  NRDC v. Daley had just been decided, and everyone involved—Council staff, the National Oceanographic and Atmospheric Administration's in-house attorney, and the National Marine Fisheries Service’s regional administrator—made it clear that management measures had to follow the letter of the law.

I’m not going to argue that such stance wasn’t, in itself, problematic, as all of the management measures tended to cluster around the minimum 50% probability of success, which means that they also embraced something close to a 50% probability of failure.  But everyone knew that if NMFS approved a Council action that was clearly illegal, a lawsuit brought by one of the major conservation groups would quickly be filed in response.

Slowly, that began to change.

Fishery managers, perhaps encouraged by the Magnuson-StevensFishery Conservation and Management Reauthorization Act of 2006’s requirementthat accountability measures be imposed when overfishing occurs, began recommending management actions that often had 55%, or even 60% likelihoods of success.  And Magnuson-Stevens advocacy, along with domestic fisheries management in general, began to fall out of favor with the big foundations that fund much of the conservation community.  Grant money that once funded efforts to improve the federal fishery management system was instead directed at forage fish management, or at efforts to improve fishery management at the international level.

Down in the Gulf of Mexico, where the red snapper fishery remained a hot-button issue, some members of the conservation community remained active, trying to halt recreational abuse of the red snapper resource, and a new Secretary of Commerce who was far more responsive to industry than to his own scientists’ advice.  Eventually, they brought suit to challenge NMFS’ decision to knowingly allow anglers to overfish the red snapper resource.

But up here, in the Mid-Atlantic, the conservation community largely withdrew from the fight.  They might come around to comment on protecting forage fish, or maybe deep-sea corals, but they were no longer the reliable champions of marine fish stocks that they had been when the century began.

And so the predictable happened.  With advocates for precautionary, science-based management having abandoned the field, the recreational fishing industry, along with anglers’ rights advocacy groups, were emboldened to undercut the Mid-Atlantic Council’s fishery management efforts.

Ms. Masterton wrote that

“Eight of 47 stocks once declared rebuilt have since become overfished, again.  One of these recurrent overfished stocks is bluefish, an important recreational species for anglers, which was successfully rebuilt in 2009, but 10 years later reached another overfished state.  Unfortunately, fishery managers in the Mid-Atlantic region just recently voted to select a longer, more risk prone rebuilding plan for bluefish that allows greater harvest levels than other alternatives considered.”

Her words, while accurate, fail to fill in the background on how those decisions happened and by doing so may well understate the need for concern.

The fact that bluefish were found to be overfished at the end of 2018 shouldn’t have come as a surprise to anyone.  Recreational bluefish landings had been in decline since 2010, with 2018 landings the lowest, by far, in a time series that dated back to 1985.  In addition, a recalibration of recreational catch, landings, and effort data derived from the Marine Recreational Information Program was expected to show that anglers had been catching far more bluefish than managers had previously believed.

Other indices of abundance, ranging from the Northeast Fisheries Science Center and NEAMAP trawl surveys to a composite young-of-the-year survey used to gauge recruitment, confirmed that bluefish had been in decline for a few years.

Yet, when faced with the fact that anglers had been killing far too many bluefish, the Council did not react in a way best calculated to assist the stock.  Instead, it took actions that led to outcomes that allowed the fishing industry to avoid some of the most immediate consequences of recreational overharvest, while increasing future risk to the bluefish resource.

It began with differences between Council staff and scientists on the Bluefish Monitoring Committee, with respect to how to calculate the likely recreational harvest (including release mortality) in 2020 and 2021.

Historically, bluefish landings in the upcoming fishing year were estimated by averaging the landings in the previous three years.  Employing that approach, which was endorsed by the Monitoring Committee, would have led to estimated future landings of 23.15 million pounds; Council staff recommended changing the historical practice, and estimating future landings based only on landings in a single year, 2018, which saw the lowest landings in a time series that stretched back over 30 years; under that approach, future landings were estimated at a mere 13.27 million pounds.

Given that the recreational catch limit for 2020 and 2021 was only 13.51 million pounds, including dead discards, the Council staff approach required a much less drastic change in regulations than the approach recommended by the Monitoring Committee.

The same pattern appeared when dead discards were considered.  The Monitoring Committee advised the Council to employ the same methodology that was employed in the stock assessment, which would keep methodologies consistent and arguably constitute the best available science; such approach assumed, based on tagging data and state angler surveys, that recreational fishermen tended to keep the smaller bluefish and release the larger ones.  Such data also suggested that recreational discards were about 9.9 million pounds per year.

The data supporting that conclusion was somewhat sparse, so Council staff thus thought that it would be better to base release mortality estimates on the size of the fish retained by anglers and encountered in MRIP surveys.  If the Council assumed that the fish released were the same size as the fish landed, then release mortality would only be 4.03 million pounds.

Based on the data alone, either approach could have been rationally adopted by the Council; each was endorsed by a different set of scientists.  But one of the reasons for creating regional fishery management councils in the first place was so people with real-world experience can bring that experience to the decision-making process.  And anyone with any experience in the recreational bluefish fishery knows that the premise underlying the Monitoring Committee’s recommendation, that anglers tend to release bigger bluefish and keep the smaller ones, reflects the way things actually play out on the water, where most anglers consider the meat of big bluefish to be “too fishy” and too oily for a pleasant meal.

Yet, not one recreational industry representative sitting on the Council would admit that was true.  Instead, they focused on the sparsity of the Monitoring Committee’s data, and argued in favor of Council staff’s recommendations.

In the end, when all posturing is put aside, it’s clear why they chose to do so.  Under the Council staff’s recommendation, anglers were awarded a recreational harvest limit of 9.48 million pounds in 2020 and 2021; had the Monitoring Committee’s advice been taken, that limit would have fallen to 3.62 million pounds, and regulations far more restrictive than the 3-fish bag limit (5 fish for for-hires) that were eventually put in place.

By the time the Council agreed to base future bluefish landings on 2018 harvest, MRIP data already made it perfectly clear that 2019 landings would be significantly higher than they were in 2018; thus, the Council acted knowing that the assumption underlying its action was false.  Then, in 2020, the Council decided to keep the same recreational harvest limit in place for 2021, using uncertainty due to COVID-19 as a way to maintain the status quo.

But decisions have consequences, and we now know that 2020 landings were about the same as they were in 2018; the Council failed in its duty to reduce those landings by 28%.  And because bluefish are known to be overfished, anglers are going to have to face a pound-for-pound payback next year if bluefish experienced overfishing in 2020.

The question is, will the Council find a way, perhaps an argument based on COVID-19, to avoid holding recreational fishermen accountable for their excessive harvest?

And if the Council tries to do so, will NMFS go along, or will it honor the promise it made to the public, and enforce the rules that are now on the books?

If it does not—and NMFS’ failure to require calibration ofrecreational red snapper data in the Gulf of Mexico, and to hold anglersaccountable for the overages that would result from such action certainly suggests that as a possibility--then Ms. Masterton’s warning carries that much more urgency.

And our fish will again need champions willing and able to fight.

 

 

ICCAT EFFORTS TO CONSERVE SHORTFIN MAKOS REMAIN STALLED

Earlier this month, delegates to the International Commission for the Conservation of Atlantic Tunas held a three-day intersessional meeting, where they sought ways to conserve and rebuild the badly depleted North Atlantic shortfin mako shark stock.

As I’ve reported in posts going back to 2017, biologists have advised ICCAT that such stock is overfished,  New measures are needed to halt its decline, and hopefully rebuild the shortfin mako population within the next 50 years. 

Despite the fact that the stock is badly overfished and experiencing continued overfishing, little real progress has been made.  A few years ago, ICCAT adopted its first minimum size limit for makos, but far more is needed.  While the 71-inch minimum for males provides some protection for adult fish, allowing about half to become mature before they can be harvested, the 83-inch minimum size for females provides the mature adults most critical to the future of the stock no protection at all.

Since then, negotiations have broken down, with one group of conservation-oriented nations, which support a complete prohibition on shortfin mako harvest, squaring off against the European Union and the United States.

The result has been stalemate.

The need to improve mako management is urgent enough that, in calling the intersessional meeting, the Chair of the panel addressing the issue observed that

“It is essential that we reach agreement on North Atlantic shortfin mako this year, and I would therefore strongly urge all [members] to engage in bilateral and multilateral consultations in advance of the meeting to try to resolve differences or to reach a compromise position.”

The Chair then went further.  In a very unusual move, he drafted his own proposed resolution to address the shortfin mako issue, which reflected the points of potential agreement between the three factions that had emerged.  In doing so, he noted that

“In 2019 it was difficult to reach consensus and only limited measures were adopted on the conservation of North Atlantic shortfin mako shark, a stock that shows signs of major concerns.  In 2020 new proposals were tabled but no further developments on a way forward could be achieved…

“At this stage…as I believe it is essential to avoid repeating the scenario faced last year, I have taken the decision to table a Chair’s proposal that could hopefully provide a good starting point for negotiations…

“I have taken note that there are some common ideas to the tabled proposals, which correspond to the clean text in my proposal.  There are also some opposite views on relevant aspects…On the other hand, I believe there are components where it might be possible to develop some common ground, which correspond to the text that I kept in brackets in my proposal…

“Accordingly, the current proposal should be identified as the work of the Chair and not a product of joint work, through consultations with, or agreement by the proponents of the three proposals already tabled.  That said, I hope that progress can be made within the context of the upcoming intersessional meeting…that I consider a critical first step of exchange of views by Heads of Delegation on the full range of issues already on the table to further develop the process of finding a way forward for the conservation of the North Atlantic shortfin mako shark.”

Others also recognized the need to find a way forward.  

In May, the American Elasmobranch Society, a professional organization of scientists who focus their research on sharks and rays, sent a letter to Dr. Paul Doremus, who was then serving as the Acting Administrator of Fisheries at the National Oceanographic and Atmospheric Administration (as noted in last week’s blog, Janet Coit has since been appointed as the permanent Assistant Administrator).  In that letter, the Society urged NMFS to support meaningful mako conservation, saying, in part,

“On behalf of the American Elasmobranch Society (AES), the world’s pre-eminent professional organization of shark and ray scientists, l am writing to draw your attention to our recent Resolution (included below) urging the United States (and Mexico) to heed urgent scientific advice for North Atlantic shortfin mako sharks through domestic protections and an international retention ban under the International Commission for the Conservation of Atlantic Tunas (ICCAT).

“As you are likely aware, most sharks and rays exhibit life history characteristics (slow growth rate, late maturity and few young) that make them especially susceptible to overfishing and slow to recover from a depleted state…AES aims to add our perspective to the shark and ray fisheries management debate in hopes of supporting the formation of effective, science-based measures for these vulnerable species.

“Shortfin mako shark protection was one of two priority matters that our society chose to address at our annual business meeting, held virtually in July 2020…We shared the Resolution with the NOAA ICCAT Commissioner last October; we understand that ICCAT was unable to reach mako management decisions during its 2020 annual (virtual) meeting.  Given the resumption of ICCAT mako negotiations in the coming weeks, as well as recent changes in NOAA leadership, we respectfully resubmit our Resolution for your consideration.”

Unfortunately, it appears that the efforts of both the ICCAT panel Chair and the American Elasmobranch Society were in vain.  When the three-day intersessional meeting ended a week ago, little progress was made on mako conservation, and the United States was still insisting on some mako harvest.  Further efforts have been postponed until ICCAT’s annual meeting—the same annual meeting where mako conservation efforts have gone to die over the past two years.

All three factions appear to be locked into their positions. 

The largest faction has solidified around a resolution introduced by Canada, and co-sponsored by Gabon, Sierra Leone, the United Kingdom, Senegal, Chinese Taipei, Guinea-Bissau, and The Gambia, which would prohibit the retention of any shortfin mako sharks.  A similar resolution has, in the recent past, also been supported by Panama, Liberia, Guatemala, Angola, El Salvador, Egypt, Norway, Uruguay, Japan, and China.

The non-retention resolution is supported by the most recent ICCAT stock assessment for shortfin makos, which noted that

“For [two runs of a population model, each of which made slightly different assumptions], a [total allowable catch] of between 800-900 [metric tons], including dead discards, resulted in a >50% probability of the joint probability of [a fishing mortality rate that is below the rate that results in maximum sustainable yield] and [spawning stock fecundity that is above the fecundity level that is necessary for the shortfin mako stock to produce maximum sustainable yield] by 2070.  [Another model run], which assumed a low productivity stock-recruitment relationship, showed that only [a total allowable catch] between 0-100 [metric tons] (including dead discards) resulted in a >50% probability of [achieving the desired result] by 2070.”

The European Union proposal would permit the retention of shortfin makos that are dead when brought alongside a fishing vessel; although the EU was willing to limit retention to just two shortfin makos per trip.  In support of such proposal, EU negotiators have repeatedly argued that

“discarding dead fish is not helping conservation,”

but in doing so failed to acknowledge that allowing any retention could encourage fishermen to seek, rather than avoid, encounters with shortfin makos.

The United States’ position is, perhaps, the most frustrating of all, because the U.S. recognizes the need for mako conservation; however, it has also called for a 500 metric ton annual catch limit, and the retention of some makos that are alive and likely to survive release when brought alongside the vessel.  

Such 500 metric ton catch limit is calculated to have only a 52% probability of rebuilding the shortfin mako stock by 2070.  That is a curious position for the United States to take, as the Draft Amendment 14 to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan, released last September, states that

“As described in the 1999 [fishery management plan], when addressing management measures for overfished Atlantic shark stocks, NOAA Fisheries’ general objective is to rebuild the stock within the rebuilding period with a 70-percent probability…

“…NMFS uses the 70 percent probability of rebuilding for sharks given their life history traits, such as a late age at maturity and low fecundity (i.e., instead of 50 percent, which is commonly used for other species).  [emphasis added]”

Given such a policy on shark rebuilding, which has been in effect for more than two decades, it is difficult to understand why the United States would be fighting for shortfin mako management measures that, at best, would only have a 52% probability of success.

Part of the answer to that question may come from the United States' alleged desire to maintain landings in the recreational shark fishery.  Mako sharks are a popular recreational species, and the mako fishery makes a significant contribution to the recreational fishing industry, with many charter boats, tournament operators, boat dealers, marinas, bait and tackle shops, and fuel docks profiting from the continued harvest of such badly depleted species.

If that is the true reason for this nation's intransigence, and I strongly suspect that it is, I am deeply saddened.

I have been a participant in the northeastern shark fishery for more than forty years.  Over that time, I’ve caught my share of makos, eaten a few, and even slipped some tournament money into my pocket after putting anglers on prize-winning fish.

But over those four decades time, I have also learned to respect and admire the shortfin mako. 

I know how it feels to see a mako's blue-black dorsal slicing through the ocean.  I know what it’s cobalt back looks like as it swims past the boat, maybe chasing bluefish away from the chum pail, maybe as a hooked fish finally being brought boatside.  I know the awe a mako inspires—and, yes, the little frisson of fear, too--when a fish in the 400-pound class rockets out of the water, barely a leader-length away from the boat, while I look up at it spinning against the sky, and hope that it lands in the water from which it came, instead of on the deck where I stand.

And I know that, as an angler who was going offshore for many, many years, I would gladly forego seeing such things again, if only I could assure that the next generation of anglers, and the generations who come after them, will have to opportunity to see, know, and admire the wild beauty of a shortfin mako in the open sea.

The thought that people would deny others that future, just to kill a few fish, or make a few dollars, in the short term, disgusts me.

So I urge anyone reading this post to support mako conservation, and send your message to NMFS, and the U.S. ICCAT delegation, ahead of ICCAT’s annual meeting this fall. 

And if anyone reading this is involved with HMS at NMFS—and I strongly suspect that some of you are—I ask that you reconsider the U.S. position on mako conservation. 

Encountering a mako on the offshore grounds is reward enough.

There is no need to kill one.