MARINE FISHERIES: ACCOUNTABILITY IS FOR EVERYONE

Section 303(a)(15) of the Magnuson-Stevens Fishery Conservation and Management Act states that every fishery management plan must

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specification, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.  [emphasis added]”

Guidelines issued by the National Marine Fisheries Service flesh out that statutory mandate, saying

“[Accountability measures] are management controls to prevent [annual catch limits], including sector [annual catch limits], from being exceeded, and to correct or mitigate overages of the [annual catch limit] if they occur.  [Accountability measures] should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible…”

On the whole, NMFS has done a fairly good job of adopting and enforcing accountability measures in commercial fisheries.  Whether it is managing Atlantic cod and other important northeastern groundfish, summer flounder, scup, and black sea bass in the mid-Atlantic, or amberjack in the southeast, the agency’s fishery management plans require that, should the commercial sector exceed its annual catch limit, that sector must repay the overage, on a pound-for-pound basis, in the next fishing year.

The repayment might be made on a fishery-wide, state, seasonal, or other level, but regardless of how repayment occurs, commercial fishermen are held very strictly accountable when they land more fish than they are entitled to in any given year.

Recreational fishermen, on the other hand, are given far more leeway.  In many fisheries, mid-Atlantic black sea bass being one of the clearest examples, both the Mid-Atlantic Fishery Management Council and NMFS itself seem to be willing to find—or create—excuses for chronic recreational overfishing, instead of holding the recreational sector accountable for its actions.

In recent years, anglers overfished their annual harvest limit by 84% in 2016 (admittedly, there seemed to be at least one major outlier in the data for that year), 4% in 2018, and 56% in 2020, while falling 3% short of the recreational harvest limit in 2017 and 5% below the limit in 2019.  2021 is not yet over, and final figures for this year will not be available for another couple of months, but preliminary indications, based on landings through August 31, suggest that 2021 recreational landings will again be well in excess of the recreational harvest limit, even before dead discards are taken into consideration.

The accountability measures for the black sea bass fishery are imposed when the most recent 3-year average of recreational catch (i.e., landings plus dead discards) exceeds the most recent 3-year average of recreational catch limits.  The nature of such accountability measures depends upon the state of the fishery.  Because current black sea bass biomass is roughly twice the biomass target, the following accountability measures apply:

“If biomass is above the target (B>B_MSY):  Adjustments to the recreational management measures (bag, size, and seasonal limits) would be considered for the following year, or as soon as possible once catch data are available.  These adjustments would take into account the performance of the measures and conditions that precipitated the overage.”

The average of landings for the years 2018-2020 exceeded the average annual catch limits for those years, meaning that accountability measures should be invoked for the 2022 season.  A report of the most recent meeting of the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee, which suggests management measures to the Mid-Atlantic Council, states that

“The [representative from NMFS’ Greater Atlantic Regional Fisheries Office] on the [Monitoring Committee] said the regulations required a change in the measures given that an Accountability Measure (AM) was triggered…”

Despite such recreational overage, and a recommendation from Mid-Atlantic Council staff that landings be reduced by 28% in order to keep them below the 2020 recreational harvest limit, the Monitoring Committee stated that it

“preferred no change in the measures given that biomass is more than double the target and there are no concerning trends in recruitment or other stock status indicators…the [Monitoring Committee’s] primary recommendation was for status quo measures in 2022.”

If NMFS insisted on a reduction in landings, the Monitoring Committee recommended a 13% or 14% reduction, the former achieved through a ½-inch across-the-board increase in the size limit, the latter by allowing the states to adopt regulations that would achieve the required cut, even though such small reduction would almost certainly assure that recreational catch would again exceed the recreational catch limit in 2022.

Such recommendation by the Monitoring Committee marked the third time in three years that the Committee recommended status quo monitoring measures that it knew would lead anglers to exceed the applicable catch limits, recommendations that have so far been followed by the Mid-Atlantic Council.

The commercial fishery has managed to stay within its quota during those years, but it is very difficult to imagine that NMFS and the Mid-Atlantic Council would have been similarly sanguine, and done nothing to address the overage if the commercial fishing sector had exceeded its quota in even one year, much less chronically exceeded its catch limit as the recreational sector has done.

Down in the Gulf of Mexico, the Gulf of Mexico Fishery Management Council has been similarly reluctant to hold anglers accountable for their chronic overharvest of red snapper.

Such failure went on for many years until, in 2013, a group of commercial fishermen grew tired of anglers impairing the then-overfished red snapper’s recovery, and brought suit against NMFS to insist that the recreational sector be held accountable.  In early 2014, the United States District Court for the District of Columbia handed down its decision in Guindon v. Pritzker.  The court found that NMFS had an obligation to impose accountability measures reasonably calculated to prevent recreational overharvest, saying,

“the instant case presents an even more striking disconnect between the agency’s disconnect and the facts before it.  The administrative record is replete with references to a high degree of management uncertainty in the recreational sector, as compared with the commercial sector…

“The court will not dictate precisely which accountability measures NMFS should have required, or should require in the future.  That decision is best left to the expertise and discretion of the agency tasked with carrying out the statute…However, Section 303(a)(15) would lose all teeth and coherence if NMFS, faced with persistent overages and high management uncertainty, could claim compliance by simply identifying any control that technically qualifies as an ‘accountability measure.’  In this case, it is apparent from the record that the existing scheme does not ‘ensure accountability’ within the meaning of section 303(a)(15).”

In the end, the Gulf Council adopted a 20% buffer between the recreational annual catch limit and a lower recreational catch target in an effort to prevent recreational red snapper overharvest.  It is not difficult to understand that a similar buffer should be adopted by the Mid-Atlantic Council as an accountability measure to address management uncertainty in the recreational black sea bass fishery.  However, to date, the Mid-Atlantic Council has been steadfast in denying that any management uncertainty exists in that fishery, despite its inability to constrain recreational landings to the recreational harvest limit.  Anglers have not been held in any way accountable for their overages.

And even in the Gulf of Mexico red snapper fishery, the regional fishery management council has not  

The issue is particularly relevant in Mississippi and Alabama, states that, according to the best available NMFS data, have grossly overfished their state red snapper allocations.  Overfishing has been so severe that, after paying back their overages, neither state may have a red snapper fishery in 2022.  However, the Gulf Council was unwilling to acknowledge the NMFS data, and instead voted to delay calibrating the state red snapper landings data with the federal Marine Recreational Information Program.  By approving such delay, the Council effectively endorsed the state landings data, which apparently underestimates recreational catch and provides the Council with an excuse for not holding Alabama and Mississippi anglers accountable for their overharvest.

At least in this case, unlike that of mid-Atlantic black sea bass, NMFS recognizes that the Gulf Council’s decision did not reflect the best available scientific information, and there is still a chance that NMFS will disapprove the Council’s failure to hold certain Gulf states accountable for their recreational red snapper overages.

Still, the bias against holding recreational fishermen accountable for exceeding their annual catch limits remains strong.

Yet, if that remains a problem within the regional fishery management councils, the problem is worse at the Atlantic States Marine Fisheries Commission, which has no legal obligation to hold fishermen, including recreational fishermen, accountable when they exceed their annual catch limits.

Thus, while commercial striped bass fishermen who exceed their state quotas must repay overages on a pound-for-pound basis in the next fishing year, no similar sanction effects the recreational sector.  Thus, when 2015 recreational landings in Maryland increased by more than 50%, instead of being reduced by 20.5%, as called for in the management plan, Maryland anglers suffered no consequences, and were allowed to keep overharvesting striped bass until Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan was adopted in the fall of 2019.

Science-based fishery management measures are the key to rebuilding and maintaining the marine fishery resources of the United States.  Unless fishermen are held accountable for exceeding the annual catch limits that are an integral part of such management measures, it will be virtually impossible to compel such fishermen to comply with the measures needed to maintain healthy and sustainable fisheries.  Yet, while fishery managers usually seem more than willing to hold commercial fishermen responsible for their overages, they are far more reluctant to hold recreational fishermen equally responsible.

And that’s a mistake, particularly when anglers often catch a larger percentage of various coastal species than commercial fishermen do.

The only way to make fishery regulations work is to hold all fishermen accountable for their overages, and admit that a fish killed by a recreational fisherman is just as dead as any fish landed by the commercial fleet.

Accountability measures work, but only if they are imposed against everyone who exceeds their quotan of any species of fish.

For accountability measures are for everyone, and are not just for the commercial fleet.