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.