SCUP AND BLACK SEA BASS: SAME ISSUE, SAME MANAGERS, TWO DIFFERENT OUTCOMES

The Mid-Atlantic Fishery Management Council’s compliance with the Magnuson-Stevens Fishery Conservation and Management Act has vacillated over the years.

Its decision to adopt a 1999 summer flounder quota that only had an 18% probability of preventing overfishing, which was a clear violation of the injunction in Magnuson-Stevens’ National Standard 1 that

“Conservation and management measures shall prevent overfishing,”

set the stage for the landmark federal appellate court decision in Natural Resources Defense Council v. Daley, in which the court found that a fishery management measure must have at least a 50% probability of preventing overfishing to be legally valid.

For many years after NRDC v. Daley was handed down, the Mid-Atlantic Council toed the line; despite frequent criticism, particularly from some recreational fishing groups, it adhered to the letter of federal law with respect to its management measures.  Such adherence was, for a time, rewarded, with the Mid-Atlantic Council being the only federal fishery management council that had no managed species either overfished or experiencing overfishing.

But in recent years, the Mid-Atlantic Council has been less rigorous when adopting management measures, particularly those that impact the recreational fishery.  While commercial fishermen still seem to be held to hard quotas, the Council, as well as the National Marine Fisheries Service, has demonstrated a willingness to let anglers exceed their recreational harvest limits with impunity, maintaining regulations that are likely to lead to overharvest, instead of adopting new rules likely to constrain such anglers to their annual harvest limit.

On Tuesday, December 14, the Mid-Atlantic Council, at a joint meeting with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board, addressed 2022 recreational specifications for summer flounder, scup, and black sea bass.

In the case of the latter two species, anglers grossly exceeded their recreational harvest limits, and Council staff made it clear that substantial harvest reductions would be needed to prevent anglers from exceeding such limits once again.  In order to constrain anglers to their respective harvest limits, staff explained, scup landings would have to be reduced by 56%, while a 28% cut in black sea bass landings would be required.

The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee, which includes representatives from NMFS, the Atlantic States Marine Fisheries Commission, the Mid-Atlantic Council, and the affected states, disagreed.

In the case of scup, Monitoring Committee members

“discussed that they were not comfortable with the 56% reduction in harvest that may be needed to prevent [a recreational harvest limit] overage as described in the Council staff memo.  They discussed the socioeconomic repercussions of these cuts and that scup biomass is still nearly double the target level.  Some [Monitoring Committee] members initially discussed that status quo recreational measures may be appropriate for a third year for these reasons and given that final action on important ongoing Council and Board actions are expected in the near future…

“Ultimately, many [Monitoring Committee] members were not comfortable with status quo recreational measures and felt there was a need for some reduction in harvest, particularly due to the recent years of low recruitment.  The [Monitoring Committee] discussed that increasing the current minimum size in state and federal waters may also allow more scup to reach maturity and spawn.  The [Monitoring Committee] recommended increasing the minimum size by one inch in state and federal waters.  They felt this was an appropriate approach to achieving an equitable reduction in harvest that specifically decreases the harvest of immature scup.  This increase in minimum size would achieve an approximate 33% reduction in recreational harvest if implemented coastwide…  [emphasis in original]”

Unfortunately, a 33% reduction was far less than the 56% reduction that was probably needed to keep recreational landings at or below the 2022 harvest limit.   While the Monitoring Committee may have shown sympathy and compassion worrying about the “socioeconomic repercussions” of a 56% reduction in scup landings, such possible repercussions don’t justify a  regional fishery management council’s failure to keep landings within the harvest limit.  Such councils are supposed to set landings levels that achieve optimum yield, with Magnuson-Stevens defining “optimum” as

“The term ‘optimum’, with respect to the yield from a fishery, means the amount of fish which (A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; (B) is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor…  [emphasis added, internal formatting omitted]”

Using socioeconomic considerations to increase landings is a concept that was intentionally deleted from Magnuson-Stevens when the Sustainable Fisheries Act of 1996 became law, specifically because doing so led to chronic overfishing and depleted fish stocks.  It was also an issue addressed by the court in the NRDC v. Daley decision, which stated that

“under [Magnuson-Stevens, NMFS] must give priority to conservation measures.  It is only when two different plans achieve similar conservation measures that [NMFS] takes into consideration adverse economic consequences.  [emphasis added]”

Thus, the Monitoring Committee’s advice, which would set recreational management measures that allowed anglers to exceed their 2022 harvest limit based, in part, on socioeconomic concerns, was not in accord with applicable law.

Yet the Monitoring Committee provided such advice not only in the case of scup, but black sea bass as well.

In that case, the Monitoring Committee acknowledged chronic recreational overages, but still advised that

“The [Monitoring Committee] 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, unlike with scup.  Therefore, the [Monitoring Committee’s] primary recommendation was for status quo measures in 2022…

“Despite the expected negative impacts to the recreational fisheries in each state, several [Monitoring Committee] members agreed that a half inch minimum size increase in all states and federal waters could be considered an equitable solution if a reduction is deemed necessary due to the [Accountability Measure].  This change would be expected to reduce harvest in numbers of fish by 13% at a coastwide level; therefore, it would not be expected to prevent [a recreational harvest limit] overage in 2022..

“The [Monitoring Committee] also agreed that, as an alternative to the half inch increase in the minimum size in all states, each state could determine their preferred measures to achieve a 14% reduction in harvest.  They selected 14% because it is half the full 28% reduction that would be needed to prevent [a recreational harvest limit] overage in 2022…  [emphasis in original]”

At the December 14 meeting, the Council and Management Board first addressed the question of scup.  Adam Nowalsky, a Council member who also serves on the Management Board as the Legislative Proxy from New Jersey, moved that both management bodies adopt the 33% landings reduction recommended by the Monitoring Committee, rather than the 56% landings cut needed to keep anglers from exceeding the recreational harvest limit.  In doing so, he said that

“I find myself in a very difficult position,”

because scup biomass was still close to twice the target level, and even  cutting the population in half would still leave a healthy stock, suggesting that no reduction in landings was really needed.  However, he said that he believed that the 33% reduction was consistent with mitigating the bodies’ response to recreational catch estimates and the biological indicators.

Nowalsky’s motion was seconded by Paul Risi, a Council member from New York, who observed that

“There are plenty of these fish,”

and that allowing anglers to target abundant scup takes pressure off other species.

The motion was also seconded by Management Board member David Borden, the Governor’s Appointee from Rhode Island, who called it

“A means for us to move forward,”

and an acceptable compromise measure.

But such comments were rebutted by Michael Pentony, the National Marine Fisheries Service’s Regional Administrator for the Greater Atlantic Regional Fisheries Office, who noted that the Council was legally obligated to adopt management measures that would prevent anglers from exceeding the recreational harvest limit.  He stated that

“To paint this as a compromise, that may be so, but the regulations don’t allow us to make a compromise.”

Mr. Pentony then read from the regulation, found at 50 C.F.R. 648.122(b), which states, in part, that

“If the Regional Administrator determines that additional recreational measures are necessary to ensure that the sector [annual catch limit] will not be exceeded, he or she will publish a proposed rule in the Federal Register to implement additional management measures for the recreational fishery,”

and declared

“That’s the regulation that I intend to follow.”

The only problem was that only about 6% of all recreational scup landings come from federal waters, meaning that NMFS’ ability to impose additional recreational management measures is very limited.  It could close federal waters to all recreational scup fishing, which in theory would keep any federally-permitted for-hire vessel from fishing for not only scup, but other species, more than three miles from shore.  However, because the for-hire scup fishery is an open-access fishery, with permits immediately available to anyone who wants one, it would be a simple matter for a party or charter boat to ask NMFS to cancel their scup permit, so that they could fish in federal waters for summer flounder and black sea bass, and then merely have a new permit issued when federal waters opened again.

As a result, Council members weren’t particularly moved by Mr. Pentony’s warning, which didn’t really even apply to members of the Management Board, since the ASMFC has unlimited discretion to adopt any management measures that it chooses, and isn’t bound by even minimal legal standards.

Thus, it wasn’t too surprising that the Council called NMFS’ bluff, voting 12 to 7 to approve the mere 33% reduction, which the Management Board also adopted with 6 states in support, NMFS and North Carolina against, Delaware and Virginia casting null votes (meaning that the state delegation couldn’t come to a majority position on the issue), and the Potomac River Fisheries Commission abstaining.

Then it was time for the black sea bass debate, which followed much the same lines, but played out just a little differently.

The 2022 recreational harvest limit for black sea bass was 6% larger than the limit for the previous season, and in fact was the largest black sea bass harvest limit ever set by the Council.  Even so, the recreational landings were even greater; as mentioned earlier, landings would have to be reduced by 28% to prevent overharvest. 

Because the average recreational landings had exceeded the average annual recreational catch limit for the past three years, an accountability measure was invoked, which required management measures to be adjusted to prevent another overage.  Because of such accountability measure, the Regional Office informed the Council that there was no justification to maintain status quo, as the Monitoring Committee wished to do, and also meant that the Council had to set coastwide management measures that set a minimum conservation standard for each state’s regulations.

Council staff advised that, to achieve a 28% landings reduction, management measures equivalent to a coastwide 14-inch minimum size, 5-fish bag limit, and May 15-September 21 season would be required; to achieve the lesser, 14% reduction, the same bag and size limit would apply, although the season could be extended through October 31.

This time, Michael Pentony of NMFS made the initial motion, moving that the Council and Management Board adopt management measures that would achieve the 28% reduction.  His motion was seconded by Kate Wilke, a Council member from Virginia, and by Management Board member Joseph Cimino, New Jersey’s state fishery manager.

Mr. Pentony’s reason for making the motion paralleled the arguments he had made earlier with respect to scup.  He cited another federal regulation, 50 C.F.R. 648.142(d), which states in relevant part that

“The [Mid-Atlantic Fishery Management Council] shall…recommend to the Regional Administrator measures that are projected to ensure the recreational [annual catch limit] for an upcoming fishing year or years will not be exceeded… 

“After considering public comment, the Regional Administrator will publish a final rule in the Federal Register to implement either the state specific conservation equivalency measures or coastwide measures to ensure that the applicable specified target is not exceeded.  [emphasis added, internal formatting omitted]“

He also said that

“In order for me to approve conservation equivalency…I have to be assured that the preferred measures…would achieve the needed reduction,”

and noted that if he didn’t receive the needed assurance that the management measures approved byu the Council would achieve such reduction, he would be compelled to adopt a single set of coastwide regulations, something that would have a disproportionately severe impact on the southern states, which have historically enjoyed a smaller size limit than states to farther north.

Mr. Pentony’s motion put many Council and Management Board members in a difficult spot.  They might not want to see a 28% reduction in landings, but at the same time, they didn’t want to see NMFS shut down the federal waters fishery.  That was particularly true of states south of New Jersey, which caught most, if not all, of their sea bass in federal waters. 

Roy Miller, the Governor’s Appointee from Delaware, summed up the situation by noting that the motion “boxes in” states between Delaware and Virginia.  Because such states have enjoyed a 12 ½ inch size limit for a number of years, the motion would increase their size limit by 1 ½ inches.  He observed that the situation was similar to the one that the Council and Management Board had just addressed with respect to scup, but that the black sea bass fishery was much more important to the southern states than the scup fishery was.  In the end, he lamented that the black sea bass reduction presented

“A frustrating challenge…we are handcuffed.”

Skip Feller, a Council member from Virginia, went a step further, saying

“You just put the southern end for-hire industry out of business.”

On the other hand, Emerson Hasbrouck, New York’s Governor’s Appointee, observed that the Council and Management Board were finally being forced to face the consequences of their prior refusal to rein in recreational overharvest, and instead opting for status quo regulations in previous years.

After a few more acrimonious comments, Nicola Meserve, a Massachusetts fishery manager, rose to make a substitute motion, that would only require a 14% reduction.  It was seconded by Jim Gilmore, fishery manager from New York.  Because Ms. Meserve didn’t sit on the Council, it was necessary for Maureen Davidson, another New York fishery manager, to make the motion on the Council side, which was seconded by Adam Nowalsky.

Debate began anew.  Mr. Gilmore argued that, as a practical matter, strict adherence to the dictates of Magnuson-Stevens didn’t make sense in this situation.  Nowalsky, who apparently doesn’t understand the federal rulemaking process, argued that the regulation quoted by Mr. Pentony was part of the fishery management plan, not a mandate of Magnuson-Stevens.  He further argued that

“The [fishery management plan, that’s our problem right now, we have the power to change that,”

a statement that was both technically correct—the Council does have the power to change the fishery management plan—and wrong in the context in which it was made, for while the Council can change the management plan, it can only do so as part of a formal rulemaking process, in which the proposed change to the language of the regulation is published in the Federal Register, public comment is taken, and only after the public comment is considered is a final rule issued. 

Regulations requiring management measures restrictive enough to keep recreational landings at or below the annual catch limit can’t be amended on the fly while setting such management measures for the upcoming year.

Eventually, Mr. Pentony, in registering his opposition to the substitute motion, noted that, by passing it, the Council would be

“putting the agency into the position of having to disapprove conservation equivalency.”

While one member of the public, New Jersey party boat captain Victor Hartley, argued that

“The Board needs to go to the mat”

in its opposition to a 28% landings reduction, and Paul Haertel, representing the Jersey Coast Anglers Association, urged the Council and Management Board to

“Approve the substitute motion and stand up to the [National Marine Fisheries] Service,”

both Delaware’s Mr. Miller and Michael Luisi, Maryland’s fishery manager, expressed their apprehension that a mere 14% reduction would lead to a federal waters closure that would badly hurt their states’ fisheries.

In the end, when the Council voted on the substitute motion, it was defeated in a narrow, 9 to 11 vote.  The main motion, for a 28% harvest cut, was then approved by the same 11-9 margin at the Council, and by a 7-4 vote (with one null) at the Management Board, where the southern jurisdictions of Virginia, North Carolina, Delaware, and Potomac River Fisheries Commission, joined by NMFS, Rhode Island and New Hampshire, defeated the northern states of New York, New Jersey, Connecticut and Massachusetts.

So in the case of black sea bass, at least, the applicable law was observed, and the legally correct decision made.

It would be nice to think that the black sea bass vote marked the end of the pendulum’s swing, and that the Mid-Atlantic Fishery Management Council was now swinging back toward a more resource-oriented, and less angler-accommodating, posture.  However, that belief would belie reality.  In the case of scup, almost all of the fish are landed in the states between New Jersey and Massachusetts; despite their lower size limits and higher bags, the states between Delaware and North Carolina only account for one or two percent of the total landings.  Thus, the southern states were willing to accept the risk of a federal waters closure that accompanied reducing landings by only 33%.

On the other hand, black sea bass remain an important recreational target in the southern states, where most of the fish are caught in federal waters.  In that situation, the more restrictive regulations that came with a 28% harvest reduction were preferable to a federal waters closure, which would effectively shut down the entire fishery.

Thus, the difference between the scup and the black sea bass outcomes didn’t arise out of any concern for the resource, or out of any sense of obligation to comply with federal fisheries law.  Instead, such differences arose out of simple self-interest, with most delegates voting not for the option that would provide the greatest overall benefit to the nation, but on the option that would provide the greatest overall benefit to their states, their sectors, and themselves.

So long as Council decisions remain based on short-term self-interest, rather than the long-term interests of the fish stocks themselves, such stocks will never be far removed from peril.