SALTWATER FISHERIES MANAGEMENT: WHAT WENT RIGHT IN THE PAST YEAR

2021 had its problems.  But from a fisheries management standpoint, it was not a bad year.  While some things could have gone better, and some issues, yet to be resolved, might still create some problems, progress was made on a number of fronts.

Amendment 7 won’t harm, and may benefit, the striped bass stock

As 2021 began, striped bass anglers were very concerned that the proposed Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass would weaken the conservation provisions of the Atlantic States Marine Fisheries Commission’s striped bass management plan.

There was good reason for such worry.  The previous summer, the ASMFC’s Atlantic Striped Bass Management Board had created a work group, and charged such work group with recommending possible measures to be included in Amendment 7, which would change the way that the ASMFC managed striped bass.  When the work group’s final report was released, just ahead of the August 2020 meeting of the Management Board, it recommended that three “themes” guide the development of the new amendment:  management stability, flexibility, and regulatory consistency.

Concepts such as rebuilding the overfished striped bass stock, and maintaining it at sustainable levels in the long term, were notable only for their absence.

Thus, when the Public Information Document for Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass was released last February, it contained a number of bad suggestions which supported the three recommended themes, but would permanently reduce striped bass abundance and impair the long-term sustainability of the striped bass stock. 

The Public Information Document asked stakeholders whether they’d like to change the current management goals and objectives, which emphasize long-term sustainability and promote a well-structured spawning stock that includes a significant number of older, larger females. 

It asked whether the fishing mortality target should be increased, to allow higher harvests, while the female spawning stock biomass target was lowered to accommodate the reduced abundance that would inevitably result from removing more bass from the population.

It asked whether the “management triggers” that require the Management Board to act when certain events take place should be weakened, to provide the Management Board with further opportunity to sit on their hands and do nothing when threats to the stock arise.

It asked whether the management plan should still require an overfished stock to rebuilt within 10 years, or whether the rebuilding period ought to be drawn out to some longer time, thus

“mitigating impacts to fisheries.”

It asked whether catch-and-release striped bass fishermen, who inflict a 9% release mortality rate on the stock, should be restricted in some way, so that there would be more fish available to catch-and-kill striped bass fishermen, who inflict a 100% mortality rate on every fish tossed in their coolers. 

Although the Public Information Document clearly admitted that

“The source of mortality does not matter to the health of the stock, as long as the overall fishing mortality is below the threshold,”

some members of the Management Board’s work group, ignoring that truth,

“indicated that recreational dead discards might be the single most important issue at this time, and addressing (or reducing discards) is the most important action that can be taken going forward.”

The Public Information Document asked some other things, too, but some of the things that it never asked were whether new measures were needed in order to rebuild the spawning stock to its biomass target, or what sort of measures might be employed to reach that target within 10 years.

The need to rebuild the stock by 2029, as the management plan required, was not really mentioned at all.

Thus, conservation-minded stakeholders seemed to be facing long odds when a series of webinar/hearings were held last March.  Judging from the recommendations in the work group’s report, along with some of the language in the Public Information Document, it seemed that momentum at the Management Board was running against the striped bass, and that those representing the long-term interests of the fish, rather than the short-term interests of the fishing industry, were taking on another lost cause.

But things didn’t turn out that way.  

Stakeholders cared about the striped bass’ fate, and came out in numbers, all along the coast, to insist that the Management Board not weaken its striped bass management program, and that it instead begin a serious effort to rebuild the stock.  Over 3,000 stakeholders commented, either at the hearings or in writing, and those comments were so lopsided, in favor of conservative striped bass management, that there was reason to hope that the Management Board might take heed.

It looked like such hope would be rewarded when, at the beginning of the May Management Board meeting, Patrick Keliher, the Maine fishery manager who also chaired the ASMFC at the time, rose to say

“While we are not at the point we were in 1984, the downward trend of this stock is evident in the assessment.  For many of the Commission’s species, we are no longer in a position to hold hope that things will revert to what they have previously been if we just hold static.  The change is happening too fast and action needs to be taken…[The Management Board needs to consider] what is best for this species, and also what is best for the future of the Commission.”

And, over all, the Management Board seemed to listen, both to the comments of the stakeholders and to those of Mr. Keliher. 

There were, of course, some dissenters, who tried to undercut stakeholders’ clear demands for conservative management.  Both Martin Gary, of the Potomac River Fisheries Commission, and Tom Fote, New Jersey’s Governor’s Appointee, tried to suggest that the webinar format skewed stakeholder response.  The former claimed that there were “folks that struggled” with the webinar format and, as a result, “there are some underrepresented sectors” in the comments, while the latter alleged that speakers on the webinars tended to be younger than those who typically spoke at in-person hearings, and suggested that some might not have been comfortable commenting on line.  Neither person could explain why such tech-unsavvy folks didn’t just pick up a pencil and send in written comments, as 3,000 pro-conservation stakeholders did.

Michael Luisi, the Maryland fishery manager who was one of the strongest proponents for beginning the new amendment, tried to frustrate the thousands of stakeholders who provided comment, and salvage his hopes for Amendment 7,  saying,

“I would prefer at this time, based on the comment, that we think more about the consequences to the commercial, recreational, and for-hire fisheries,”

and asking that none of the issues be removed from the initial draft of the amendment.

But such pro-harvest voices were in the distinct minority.  The Management Board left the plan’s goals and objectives, its biomass  and fishing mortality targets, and its 10-year rebuilding timeframe intact.  In a move that surprised most observers, Megan Ware, another Maine fishery manager, even added a proposal to protect the 2015 year class to the draft amendment.  

With Ms. Ware's action, the amendment began to change shape.  Instead of being a document that would threaten the long-term health of the striped bass stock, it was slowly morphing into an amendment that might benefit the bass, instead.

That change continued at the August Management Board meeting, when Ms. Ware rose to speak again, and successfully argued that a provision to rebuild the striped bass stock by 2029, its 10-year deadline, be included in the draft amendment, which will be presented to the Management Board for its meeting late in January 2021.

In the past year, Amendment 7 has come a long way.  It’s not yet finished, and the final version could still include weakened management triggers that insert additional years of delay into the management process.  So it’s far too early to declare a victory.

Still, at this point, it is clear that Amendment 7 will not represent a loss.  The worst provisions have already been stripped out.  

Right now, the Plan Development Team that is preparing the next draft of the amendment seems committed to the 2029 rebuilding deadline.  Other provisions could limit the use of conservation equivalency, which currently allows states to escape some of their responsibilities to conserve and rebuild the stock.  A revised management trigger that will compel the Management Board to respond to below-average spawning success is likely to be included among the options sent out for public comment.

Even if the Management Board strips out those good things, the final version of Amendment 7 shouldn’t have a net negative impact on the striped bass management program. 

Given where we started a year ago, that is, in itself, a win.

7-year rebuilding plan for bluefish

On November 12, 2019, the National Marine Fisheries Service formally notified the Mid-Atlantic Fishery Management Council that the bluefish stock had become overfished.  The Magnuson-Stevens Fishery Conservation and Management Act dictates that, after such notice was made, NMFS and the Council had no more than two years to implement a bluefish rebuilding plan.

What happened next demonstrated why Magnuson-Stevens is such an effective fishery management law.

By the December meeting of the Mid-Atlantic Council, which was held jointly with the ASMFC’s Bluefish Management Board, a draft scoping document, which updated a previous scoping document that focused solely on allocation, but would now also solicit public comment on the rebuilding process, was already prepared for review and release to the public.

Scoping hearings were held in February 2020.  The majority of those who commented at such hearings belonged to the recreational and commercial fishing industries and, as it typical of industry members, either questioned the data, questioned the need for a rebuilding program, and/or sought a rebuilding program that would have the least impact on their businesses.  For many, but not all, that translated to the longest possible rebuilding period.

But the public didn’t have the last word on the rebuilding process.  Magnuson-Stevens requires that

“For a fishery that is overfished, any fishery management plan, amendment, or proposed regulations…for such fishery shall specify a time period for rebuilding that shall be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities…and the interaction of the overfished stock of fish within the marine ecosystem; and not exceed 10 years…  [emphasis added, internal formatting omitted]”

Thus, not only did a plan to rebuild the overfished bluefish stock have to be put in place, but that plan must contain measures to rebuild the stock in no more than 10 years, and in a shorter time if doing so would be reasonably possible. 

In many such situations, regional fishery management councils have defaulted to the 10-year maximum rebuilding period without giving thought to a shorter rebuilding timeline, but when the Mid-Atlantic Council contemplated that possibility in the case of bluefish, Michael Pentony, the National Marine Fisheries Service’s Regional Director for the Greater Atlantic Regional Fisheries Office, took that option off the table.  He noted that bluefish weren’t badly overfished, that recovery should be possible in less than 10 years, and that dragging out the rebuilding process over a 10-year period would thus violate Magnuson-Stevens’ requirement that the rebuilding period be as short as possible,

Eventually, the Council and Management Board considered options to rebuild the stock in either 5 or 7 years, and while the 7-year plan wasn’t perfect, in that it violated the Council’s risk policy in the early years of rebuilding by allowing too great a probability of overfishing, it still kept that probability low enough to comply with all legal standards, and was ultimately the one adopted by both management bodies.

As with striped bass, we see bluefish management measures that fall short of perfection.  But, to an even greater degree than is the case, so far, with bass, we also  see bluefish management measures that will provide clear benefits to the stock, which were quickly put in place once bluefish became overfished, and which will hopefully rebuild the stock in less than the 10 years permitted by Magnuson-Stevens.

Thus, thanks to actions taken in 2021, bluefish management is headed in the right direction.

 

ICCAT bans shortfin mako landings

The period from late 2017, when shortfin mako sharks were first found to be badly overfished, and the first months of 2021, was embarrassing to United States fishermen and marine conservation advocates, as the U.S,, which has long been a leader in the conservation of highly migratory fish stocks, reversed its traditional stand and became one of the primary obstacles to mako conservation.

That occurred after scientists at the International Commission for the Conservation of Atlantic Tunas determined that shortfin makos were badly overfished, and that fishing mortality would have to be slashed to nearly nothing in order to stop the decline in abundance and give the North Atlantic mako stock a reasonable chance to rebuild by 2070.  Such scientists advised that ICCAT adopt a no-retention policy for the stock, but such recommendation was rejected by both the United States and the European Union, which together represented the nations with the first-, second-, and fourth-highest mako landings.

A number of excuses were made to justify the U.S. opposition:  The United States had already imposed measures to reduce dead discards of makos in its pelagic longline fishery, while other nations did not.  The United States reported its mako bycatch, while other nations did not.  The United States accurately reports where its makos are caught, but (if the South Atlantic remained open to harvest), other nations might not.  Such excuses were presented as a need to “level the playing field,” but were largely an exercise in finger-pointing.  If the end result is a ban on mako landings, it didn’t really matter if the U.S. had started its trip down the conservation road a little earlier than others; once a ban was adopted, everyone, including the United States, would end up in the same place.

Given that the United States had earlier opposed listing the shortfin mako on Appendix II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, a listing that would only require that the U.S. document international commerce in the species, and certify that such commerce involved legally-captured fish and did not threaten the makos’ survival, its resistance to a retention ban seemed to be less rooted in any considerations of fairness and level playing fields than in a desire to monetize the mako shark resource to the greatest degree possible, regardless of how that impacted the shark.

However, when the presidential administration changed in 2021, bringing leadership changes to the Department of Commerce, the National Oceanographic and Atmospheric Administration, and to the National Marine Fisheries Service, it appears that the United States position on makos changed as well.

At the November 2021 ICCAT meeting, the United States agreed to a resoltion that would limit total mako fishing mortality to 250 metric tons.  Such proposal would completely ban mako retention in 2022 and 2023, although if the level of dead discards falls below 250 mt after that, could allow for very limited harvest.

It was a big step forward.

Speaking personally, although I will never, under any possible circumstances, live long enough to see makos recover in 2070, I can rest a little easier knowing that the fish that I have admired, pursued, and enjoyed for so long now has a decent shot at survival.

NMFS stands up to Mid-Atlantic Council

Over the past couple of years, the Mid-Atlantic Fishery Management Council has not done itself proud when it comes to scup and black sea bass management.  Instead, it has allowed anglers to repeatedly exceed their annual limits, failing to take any action to rein in such resource abuses even when, in the case of black sea bass, Council inaction was likely to result in not only the recreational harvest limit, but the allowable biological catch, being exceeded.

The National Marine Fisheries Service had, for a while, gone along with the Council, deeming its status quo measures a temporary accommodation to recent changes to the Marine Recreational Information Program, which estimates recreational catch, effort, and landings, and to a dearth of 2020 recreational fishing data due to the COVID pandemic. 

As 2021 drew to a close, it appeared that the Council might again ignore recreational overages, in whole or in part.  In the case of scup, projections indicated that recreational landings for 2021 would probably be close to double the recreational catch limit; Council staff, deciding that the best course would be to average landings over a period of years to account for inevitable error in the annual estimates, recommended the adoption of management measures that would reduce anglers' landings by 56% in 2022.  But the Council was reluctant to force such a large reduction, and favored a 33% cut instead.

In the case of black sea bass, anglers were projected to exceed the recreational harvest limit by a substantial amount, resulting in Council staff recommending a 28% cutback to prevent more excess harvest in 2022.  Overharvest in the three previous years, 2018-2020, was high enough to require that accountability measures be imposed.  Yet many Council members only wanted to adopt a 14% cut.

While that was better than status quo, it was not good enough.  NMFS had decided that temporary measures, designed to address unexpected and transient events, would not be allowed to continue.

Regional Administrator Michael Pentony made that position clear.  He noted that with respect to the inadequate scup cutback

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

If the Council ignored his advice, as it ultimately did, and approved the 33% reduction, he made it clear that he would be legally obligated to impose additional restrictions, including a possible closure of federal waters, to better ensure that the recreational harvest limit would not be exceeded again.

A similar discussion occurred with respect to black sea bass, although in that case, enough states feared a federal waters closure that they approved the full 28% cut.

It was nice to see NMFS finally take a stand against chronic recreational overharvest, and in favor of regulations designed to keep the affected fisheries healthy in the long term.

On balance, it was a good year

When dealing with fisheries issues, the big, spectacular wins, such as passage of the Sustainable Fisheries Act of 1996 or adoption of Amendment 3 to the Interstate Fishery Management Plan for Atlantic Striped Bass, don’t happen often.  The fact that I had to go back to the previous century to find those two examples certainly demonstrates that.

In the day-to-day fight to protect the nation’s fisheries, victories are usually very small, incremental gains that make it a little more likely that a stock will be sustainably managed, or that an overfished stock will begin to rebuild.

Sometimes, merely not losing a fight can feel like a major win, as was the case a few years ago when the  so-called “Modern Fish Act,” which could have seriously undercut federal fishery management, was reduced to something resembling an inconsequential red snapper bill.

Viewed in that context, 2021 was a pretty good year.

ICCAT’s decision to ban the retention of shortfin makos was a major step toward reversing that species’ decline and hopefully rebuilding the stock in the next 50 years.  While the mako’s future is still cloudy, and may depend upon the 250 metric ton fishing mortality limit being achieved, that future looks far brighter than it did just two months ago.

The future of the striped bass, although still quite uncertain, is looking much brighter, too.  The fact that thousands of stakeholders turned out to comment on the pending amendment, and convinced the Atlantic Striped Bass Management Board to strip most of the bad ideas out of the current draft of Amendment 7, holds out hope that a similar turnout in 2022, when the final draft is released for public comment, will convince the Management Board to strip the rest of the bad proposals out of Amendment 7, and instead produce a document that will improve the management plan and better assure a sustainable striped bass fishery in upcoming decades.

Bluefish rebuilding was mandated by law, so the mere fact of a rebuilding plan provides little cause to rejoice.  However, the fact that the rebuilding period was compressed into 7 years, rather than the 10 arguably allowed by law, was a welcome development, and hopefully an example that can be followed in other plans impacting other fisheries.

NMFS standing up to the Mid-Atlantic Council was another example of NMFS only doing what the law required.  However, in an environment where not doing what the law required was tolerated before, the mere fact that NMFS has finally lost its patience with recreational overharvest becomes a good sign.

That doesn’t mean that all is well in the fisheries world.  There will be plenty of challenges to keep advocates busy in  the new year (and we’ll look at some of them on Sunday).  But in an arena where wins can often feel frustratingly few and far between, it is good to look back on a year, to find that nothing went terribly wrong, while a few things turned out pretty well.

A POTENTIAL NEW THREAT TO THE PUBLIC'S ABILITY TO ACCESS MARINE RESOURCES

On January 27, 2021, President Joseph Biden signed an executive order intended to address climate change and related environmental threats.  Included in that order was language that instructed the Secretary of the Interior, in consultation with other agency heads, to prepare a report

“recommending steps that the United States should take, working with State, local, Tribal, and territorial governments, agricultural and forest landowners, fishermen, and other key stakeholders, to achieve the goal of conserving at least 30 percent of our lands and waters by 2030.”

Taken at face value, the executive order seemed beneficial, as the conservation of the nation’s lands and waters is a worthwhile and necessary goal.  The resultant report, “Conserving and Restoring America the Beautiful,” set an appropriate tone, reinforcing the need for conservation action, but also recognizing that conserved lands and waters do not need to be placed out of the reach of affected stakeholders, and acknowledging that stakeholders are an inherent part of the conservation process.  A portion of the report’s introduction reads:

“The President’s national conservation goal also provides an opportunity to better honor and support the people and communities who serve as stewards of our lands and waters.  Rather than simply measuring conservation progress by national parks, wilderness lands, and marine protected areas in the care of the government, the President’s vision recognizes and celebrates the voluntary conservation efforts of farmers, ranchers, and forest owners; the leadership of sovereign Tribal Nations in caring for lands, waters, and wildlife; the contributions and stewardship traditions of America’s hunters, anglers, and fishing communities; and the vital importance of investing in playgrounds, trails, and open space in park-deprived communities.  The President’s challenge is a call to action to support locally led conservation and restoration efforts of all kinds and all over America, wherever communities wish to safeguard the lands and waters they know and love.  Doing so will not only protect our lands and waters but also boost our economy and support jobs nationwide.”

That’s a vision that I, and I believe most saltwater anglers, can readily support.  It is a vision that would benefit our oceans and the living marine resources that reside therein, and by benefiting such resources, would benefit anglers and angling-related businesses as well.

Unfortunately, as I noted in an essay that I published on this site more than one year ago, there are some in the conservation community who are viewing the so-called “30x30” initiative not only as a way to conserve and safeguard the nation’s coastal waters, but as a way to promote no-take marine reserves that would effectively prevent public access to publicly-owned marine resources.

On October 7, 2021, a group of 44 marine scientists sent a letter to the Secretary of Commerce and the Secretary of the Interior, along with other leading government officials, alleging that

“We must strengthen and expand our U.S. [Marine Protected Area] system to achieve the vision of America the Beautiful.”

Such letter also recommended that the government

“Establish additional highly to fully protected areas in more U.S. regions,”

a recommendation that, if enacted, would assure that anglers on every coast would likely be confronted with closed areas that prevented them from accessing the fish present therein, even if such fish belonged to healthy populations and were being fished at or below target mortality levels, or included highly migratory species that did not linger in the closed areas and were vulnerable to capture elsewhere throughout most of the year.

Despite the burden that such arbitrary prohibitions would place on the recreational fishing communities adjacent to and dependent on the closed areas, far too many conservation groups are also calling for the creation of such “fully protected” marine reserves as part of the 30x30 process. 

Now, a paper recently published in the journal Environmental Research Letters proposes a new idea that would support no-take marine protected areas while further burdening public access.  Titled “Self-financed marine protected areas,” its abstract states

“Marine protected areas (MPAs) are an important tool for conservation but can be victims of their own success—higher fish biomass within MPAs create incentives to poach.  This insight underpins the finding that fishing persists in most MPAs worldwide, and it raises questions about MPA monitoring and enforcement.  We propose a novel institution to enhance MPA design—a “Conservation Finance Area (CFA)”—that utilizes leased fishing zones inside of MPAs, fed by spillover, to finance monitoring and enforcement and achieve greater conservation success.  Using a bioeconomic model we show that CFAs can fully finance enforcement, deter illegal fishing, and ultimately maximize fish biomass.  Moreover, we show that unless a large, exogenous, and perpetual enforcement budget is available, implementing a CFA in a no-take MPA would always result in higher biomass than without.  We also explore real-world enabling conditions, providing a plausible funding pathway to improve outcomes for existing and future MPAs.”

As a practical matter, what that means is that the creation of an MPA, with an accompanying Conservation Financing Area, would not only deny anglers access to the marine resources present in the protected area, but also to those resources located outside the protected area itself, but within the region designated as a “finance area,” where access to such resources would be limited to the highest bidders—almost certainly commercial fishing enterprises.

Anglers would almost certainly be unable to compete for access in an environment when

“A CFA would be a designated area around a no-take zone where fishing vessels can lease exclusive fishing rights, with the proceeds of leasing used to finance MPA enforcement.”

The paper’s authors attempt to justify such pay-to-play access by likening the lease fees to the fees paid for toll roads, tuition at public universities, or the entrance fees at national parks, but none of those comparisons are appropriate, as access to toll roads, and at least to the extent that space is available, to public universities and national parks, is not exclusive; anyone may access such facilities at any time.  That would not be the case in a Conservation Financing Area, where exclusive fishing rights are granted.

Even more egregious is the authors’ efforts to liken fishing in a CFA to hunting in “game reserve” which

“collect[s] sizeable access fees in exchange for special hunting opportunities in areas of high diversity and abundance,”

as such game reserves offer their product (given their nature, I hesitate to call such activities “hunts”) on private land, surrounded by high fences, which constrain the movement of animals that are often purchased and artificially stocked and/or raised by the landowner.  Such activity not conceptually different from raising and harvesting cattle or any other sort of farmed livestock.  The CFA, on the other hand, would see a governmental entity selling the right to harvest public resources to the highest bidder, while preventing broad public access to the public waters in which such resources reside.

It is a concept that would be anathema to the North American Model of Wildlife Conservation, which is used by the United States to manage just about all wildlife other than living marine resources, which includes among its principles that

“wildlife resources are a public trust to be managed by governments for the benefit of all citizens…”

and

“opportunity for all, which means that every citizen has the freedom to view, hunt and fish, regardless of social or economic status.”

Thus, one would hope that the Conservation Financing Area concept would never find root in U.S. fisheries management.  Still, when the realities of shrinking agency budgets collide with demands for no-take marine protected areas, it is a concept that some bureaucrats might well find attractive.

But if the paper proposing such CFAs arguably creates a new threat to public access, it also inadvertently creates a case against the use of no-take areas.  For in its discussion of creating financing areas in conjunction with such MPAs, it posits that the relevant agency would

“zone the MPA to allow for different uses in different areas…a zoning scheme that divides the MPA into two areas:  a no-take zone where all extractive activities are prohibited and human use is regulated, and a CFA where fishing effort is strictly controlled and managed for sustainability.”

Yet if such regional distinctions in fishery management are possible to establish and enforce, why not merely adopt management measures that would assure that fishing is held to sustainable levels throughout the region, eliminating the need to enforce the boundaries of a no-take area?

If it is possible to enforce the rules in one area, where no fishing at all is allowed, and in an adjacent area, where fish are theoretically abundant enough that fishermen would be willing to pay for exclusive rights to presumably high harvests, why not just impose regulations across the entire area that would average out the landings (or lack thereof) from both areas, and have the same net effect?

The paper implicitly admits that is possible, when it states

“The complexity of problems affecting the ocean requires a diverse set of solutions.  While MPAs may benefit diversity by spatially managing threats in certain contexts, other strategies, particularly adequate fisheries management and community-based management, can be similarly effective alternatives or compliments.  [emphasis added]”

 Such admission reinforces the fact that, while no-take MPAs may remain in fishery managers’ toolbox to address specific situations, they are not a panacea, and should not be the primary alternative that managers reach for, whether the goal is to achieve 30x30 or to restore and maintain healthy fish stocks.

 

 

 

MID-ATLANTIC FISHERIES: DID REALLOCATION REALLY HAPPEN?

On December 16, the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board finalized the long-delayed Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment.

Such Amendment was initiated over two years ago.  Scoping hearings were held in early 2020, and a final round of public comment on the proposed amendment took place in February and March of 2021.  At the April Mid-Atlantic Council meeting, the Council and Board met in joint session, and decided to defer final action on the Amendment until December 2021, in order to free up Council and ASMFC staff and give them time to work on the so-called Recreational Reform Initiative.

Given that the Recreational Reform Initiative includes a proposed control rule that would largely decouple recreational management measures from the recreational catch limit, allow recreational fishermen to exceed such catch limit with relative impunity, and so render recreational quotas largely academic, the Council and Management Board apparently believed that, by prioritizing the Recreational Reform Initiative, they could contrive a way for anglers to escape the bounds of their quotas, and so be allowed to catch more fish, without having to directly address the always divisive and acrimonious issue of reallocation.

However, progress on the Recreational Reform Initiative was slower than initially expected, and it became clear to most people involved that it would not be completed until some time in 2022, at the earliest.  Thus, when the December Council meeting rolled around, it became necessary to address the Allocation Amendment, whether people wanted to do so or not.

As is always the case with allocation issues, the Amendment was controversial.  Commercial fishermen, who had been awarded the lion’s share of summer flounder landings, an even bigger share of the scup catch, and 49% of black sea bass landings were, quite naturally, overwhelmingly in favor of the status quo.  They were unwilling to give up even a single fish to the recreational sector, and made comments such as

“…Taking quota from the commercial sector and giving to the recreational sector won’t even cover the recreational discards.  Any resulting reallocation will result in real hardship on the commercial industry…”

“…For years, we have been struggling with low trip limits and quotas.  The recent increase in quotas has finally allowed for better fishing and we cannot go back.  Instead of giving quota to the recreational sector, we need to lower the minimum size for the recreational fishery so they can bring their fish in instead of creating discards.  How can you justify taking quota away from a sector that has been suffering for so long?  I hope we can find a better way to help the recreational fishery.  We need to address the recreational sector problems before giving commercial quota away.  The whole process is unfair…”

“…When we go over with commercial limits, we pay it back.  There is no one looking at logbooks or filling out a bill of landing for recreational folks.  The commercial side can be held accountable…”

And,

“New York commercial fishermen will be asking for status quo on all three species.  We feel in New York that the recreational sector is basically a runaway train.  They can continue to grow every year while the commercial sector is at a standstill due to the regulations and limited access.”

Recreational fishermen just as predictably supported a reallocation that gave them more fish, arguing

“…the recent increases in recreational catch are an artifact of changes made in the [Marine Recreational Information Program] estimation process.  We feel it’s necessary to put the recreational/commercial allocation back to its previous balance before those changes.  We support the base years used to the most recent years for determining allocation…”

“…The revised [Marine Recreational Information Program] numbers were used in assessments that create our [Total Allowable Catch] and quotas, and if we use it for that then we have to use it for allocation distribution so that they are appropriate and fair…”

And,

“The recreational industry is dying a slow death.  So many anglers tell me they’re not fishing anymore due to regulations…With the pandemic, the bait and tackle shops and the for-hire fleet are hurting.  Liberalizations should be used as a tool to help rebuild the industry.”

Allocation is never about conservation.  From a conservation standpoint, what matters is how many fish are killed; who does the killing is completely irrelevant.  So long as overfishing doesn’t occur, the harvest, whether commercial or recreational, will be sustainable. 

Thus, the debate over the Amendment revolved around philosophy and self-interest.

Should quotas remain status quo, just because they’ve been that way for, in the case of summer flounder, the past thirty years, and somewhat less for scup and black sea bass?

Should quotas be changed to reflect managers recent, changed understanding of commercial and recreational catch during the “base years” used to set such quotas?

Or, should quotas be updated to reflect current patterns of resource use, instead of the patterns that existed three decades ago?

However one answered those questions, the Allocation Amendment included at least one appropriate scenario.

Having said that, there were some overriding concerns.

One was that a recalibration of recreational catch and landings data, based on recent revisions to the Marine Recreational Information Program, revealed that recreational catch and landings during the base years for summer flounder, scup, and black sea bass were higher than previously believed; because of that, the current allocation understated the recreational share of the fishery.

The Magnuson-Stevens Fishery Conservation and Management Act includes a provision, known as National Standard 2, which requires that

“Conservation and management measures shall be based upon the best scientific information available.”

It could be easily argued that the then-current allocation, based on recreational data from the 1980s (in the case of summer flounder) or other earlier period, and not on the recalibrated recreational information, did not meet that standard.

There was also a 2017 federal court decision, in the matter of Guindon v. Pritzker, which found that a reallocation of red snapper in the Gulf of Mexico which favored the recreational sector because it considered a past recreational landings history in which

“actual recreational harvest in pounds of red snapper exceeded the [recreational] quota in 9 out of 16 years, including 5 of the last 6 years,”

could not be deemed “fair and equitable,” when the commercial sector was strictly held to its quota during that time.  That decision had to be taken into account, as a number of the reallocation options would adopt new base years when the recreational fishery had exceeded its quota of the relevant species, an issue that was finally addressed by removing such overages from the reallocation calculation.

The final, December 16 debate took up several hours.

It began with Eric Reid, Legislative Proxy for Rhode Island, moving that the Management Board maintain the status quo, and make no changes to existing allocations.  His motion was seconded by Shanna Madsen, of the Virginia Marine Resources Commission.  Council Member Earl Gwin of Maryland made an identical motion on behalf of that management body, which was seconded by Dewey Hemilright of North Carolina.

In support of his motion, Mr. Reid repeated some of the arguments made by commercial fishermen during the comment period, saying that reallocation would harm fishing communities and threaten food production.  He also opined that moving quota from the limited-access commercial fishery to the open-access recreational community would not solve any problems that might exist in the fishery.

However, it was clear that the no-action option was unpopular with most of those who sat on the Council and Board.  Adam Nowalsky, a Council member who also serves on the Management Board as the Legislative Proxy from New Jersey, moved to replace Mr. Reid’s motion with a substitute that would reallocate summer flounder, scup, and black sea bass between the sectors, using a formula that combined the sectors’ respective landings during the existing base years with more recent landings.

That motion was seconded by Joseph Cimino, a New Jersey fishery manager, for the Council, and by Nicola Meserve, a Massachusetts fishery manager, for the Management Board.

In explaining why they seconded the motion, Mr. Cimino noted that using historical landings over a broader period of time would be “beneficial” to the management effort.  Ms. Meserve made a similar argument, saying that balancing historical landings and recent fishery performance was the most appropriate way to address the issue.  She also observed that the Council must articulate a rationale for reallocation, and choose an allocation approach that was in the best overall interest to the nation.

While the substitute motion seemed to garner more support than the motion to maintain the status quo, a number of Council and Management Board members were clearly not comfortable with a major reallocation that would give each sector 50% of the fluke catch (instead of allowing the commercial sector 60% of landings), change the scup allocation to 63.5% commercial, 36.5% recreational (from 78% commercial, 22% recreational), and amend the black sea bass catch allocation to 40.5% commercial, 59.5% recreational (from a landings allocation of 49% commercial, 51% recreational).

Both Council and Management Board members noted that, while status quo wasn’t a viable option, Mr. Nowalsky’s substitute motion take too many fish away from the commercial sector.  But if many of the people sitting around the management table were conflicted about how to move forward, the public was far more polarized, expressing views that were no different from those presented during the earlier public comment periods.

Those representing recreational interests favored Mr. Nowalsky’s motion.

Paul Haertel, representing the Jersey Coast Anglers Association, alleged that, during the 1970s, the recreational sector had larger landings than the commercial sector did, and that the base years later adopted to allocate fish between the two sectors favored the commercial side, which had, in his words, “devastated” fish stocks and so drove down recreational landings.

Michael Waine, representing the American Sportfishing Association, and John DePersenaire, representing the Recreational Fishing Alliance, stole an argument from the commercial fishermen when they observed that summer flounder, scup, and black sea bass were all food fish; thus, anglers who sought them were seeking fish not just for sport, but to take home and eat, something that became more important during the COVID pandemic.

Representatives of the commercial industry tried to counter such claims.

Meaghan Lapp, representing the Rhode Island company Seafreeze and other commercial interests, emphasized that, while commercial fishermen were held accountable for exceeding their quotas, anglers were not, so allocating more fish to the recreational sector will merely lead to more overages and so harm commercial fishermen.  She opined that

“The recreational sector will dop what it wants regardless of [the recreational harvest limit].”

The same theme was sounded by David Aripotch, a Montauk, New York commercial fisherman, who complained about the recreational sector, saying

“They’re going hog wild.  You’re not stopping them but you’re stopping me…[The National Marine Fisheries Service] can’t rein those people in.”

But when the vote was finally taken, it appeared that Mr. Nowalsky had prevailed:  The Council approved the substitute motion by a vote of 13 to 5, with a single abstention, while the Management Board approved it 9 to 2, with both NMFS and the U.S. Fish and Wildlife Service abstaining.

However, that victory was very short-lived.

Ms. Madsen rose to make a new substitute motion, which would retain the original base years (1980-1989 in the case of summer flounder, 1988-1992 in the case of scup, and 1983-1982 in the case of black sea bass), and merely revise the allocation to reflect the recalibrated Marine Recreational Information Programs estimates of recreational catch and landings during those times.

Whether such motion represented a true reallocation of fishery resources, or merely corrected estimates of recreational effort, catch, and landings during the original base years, and so changed the allocation to what it should have been all along, is a debatable question.  However, the motion did add a new element by stating that the summer flounder and black sea bass allocation would, going forward, be based on catch, rather than on landings (the scup allocation had been catch-based all along), meaning that each sector’s dead discards of all three species would be considered as part of the allocation process.

Ms. Madsen’s motion would lead to allocations in which the summer flounder catch would be allocated 55% commercial, 45% recreational, the scup catch would be split 65% commercial, 35% recreational, and the black sea bass catch would be divided 45% commercial, 55% recreational.  In each case, the recreational sector would receive more fish than it would under the status quo measures, but less than they would receive pursuant to Mr. Nowalsky’s motion.  It was seconded by James Gilmore, the New York fishery manager, for the Management Board.  For the Council, an identical motion was made by Paul Risi, a member from New York, which was seconded by Mr. Gwin of Maryland.

The motion represented a compromise between the original, defeated motion for the status quo and Mr. Nowalsky’s substitute motion.  As such, few Council or Management Board members expressed either strong support or strong opposition.  

However, Michael Pentony, the Regional Administrator for NMFS' Greater Atlantic Regional Fisheries Office, noted that, while he had a lot of concerns about the status quo option, Ms. Madsen's motion reflected the best available scientific information, while basing allocation on catch rathern than landings represented "a good step forward."

In the end, Ms. Madsen's motion passed easily, with a Council vote of 14 in favor, 6 against and a single abstention; the Management Board voted 9 in favor, 1 opposed, and the two federal agencies abstaining, while one state’s delegation cast a “null vote” indicating that its members could not agree on what to do.

Did that vote actually represent a reallocation, or a desire to keep the allocation—meaning the base years—unchanged, while correcting an earlier underestimate of recreational catch and landings?

I’d argue that a reallocation did really take place, at least in the summer flounder and black sea bass fisheries, because the decision to base allocation on catch, rather than on landings, provides both sectors with an incentive to rein in dead discards and, depending on how well such discards are controlled, could have a real impact on what is brought back to the dock.

In the scup fishery, I’d argue that we just saw a correction that merely adjusts the existing recreational allocation to what it should have been for the past thirty years.

Given how futile allocation fights usually turn out to be, it was probably a reasonably good outcome for the recreational sector.  At the same time, the decision to retain the existing base years exposes an ongoing problem with the entire allocation process.

It always looks backwards.

In setting allocations, fishery managers still can’t break out of the box that has them planning for the future by looking at how things were in the past, instead of looking forward, and asking whether a break from the past might offer the best future opportunities for the nation.

Yet in an ocean that is beset by a changing and steadily warming climate, by increased pressure on many fisheries resources, and by new and competing uses of marine resources, it is pretty sure that whatever the future may hold, it will be very different from what went before.

In such circumstances, the past presents a poor template for what waits ahead.

STRIPED BASS AMENDMENT 7: WHAT REBUILDING MIGHT LOOK LIKE

We’re just about a month away from the Atlantic States Marine Fisheries Commission’s 2022 Winter Meeting, when the Atlantic Striped Bass Management Board will again consider the Draft Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass and, most expect, approve a version of that document for public comment.

For a while, it looked like such approval might happen last October, at the ASMFC’s 2021 Fall Meeting, but concerns over the complexity of the draft presented to the Management Board, along with the Board’s new instruction to include a rebuilding provision in Amendment 7, led to the document being remanded to the Atlantic Striped Bass Plan Development Team for further modification.

The addition of a rebuilding provision was good news for the striped bass, as the original draft of Amendment 7 was focused primarily on the procedures used to manage, and hopefully rebuild, the striped bass stock, but never directly addressed the question of how and when such rebuilding would actually take place.

To some extent, that has now changed.  The Plan Development Team met on December 16, and the discussion provided a little more clarity asa to what the rebuilding process might actually look like, at least over the next couple of years.

The good news is that the Plan Development Team appears to be committed to the 2029 rebuilding deadline.  The discussions that took place on the 16^th all assumed that such deadline was firm; there was no talk at all about pushing rebuilding further into the future.

Hopefully, the Management Board will remain equally committed to getting the job done on time.

However, I was surprised to learn that Amendment 7 will not contain any specific rebuilding proposals. Given that the short time until the 2029 rebuilding deadline, and the fact that Amendment 7 won’t become effective until 2023, I had always assumed that concrete rebuilding measures would be included in the document.  But as I listened in on the PDT meeting, it became clear that the only rebuilding issue likely to be included is whether the rebuilding plan will assume “standard”—which, for the purposes of this blog, we can consider “average”—levels of striped bass recruitment during the rebuilding period, or whether it will assume a low-recruitment scenario.  Both approaches will probably be included as options for public comment when the draft Amendment is released.

The PDT apparently intends to include rebuilding measures in a separate addendum to Amendment 7, which will presumably be initiated after the amendment is finally approved, something that won’t happen until at least May, and possibly not until August.  That will make it very difficult—in fact, pretty close to impossible—to have rebuilding measures in place for the start of the 2023 season.

There is a valid reason for such delay.  A stock assessment update will be completed in the latter part of 2022, most likely early in autumn.  Waiting until that update is released will allow the Management Board to adopt measures based on the most recent data.

Current management measures are based on the condition of the striped bass stock at the end of 2017, when the big 2011 year class was just recruiting into the coastal fishery, and the strong 2015 year class was still largely unfished.  Next year’s assessment update will include data through 2021, so will consider the current state of the 2011 and 2015 year classes, as well as the impacts of low Marylandjuvenile abundance indices in 2019, 2020, and 2021, when making projections of future stock abundance. 

Delay will also assure that rebuilding won’t color the Management Board’s final decision on conservation equivalency measures.  

Should the measures needed to rebuild the stock by 2029 prove to be very restrictive, as may well be the case, more Management Board members might tend to support permissive conservation equivalency standards, in order to provide the greatest opportunity for striped bass harvest.  However, if the use of conservation equivalency is sharply curtailed in Amendment 7, as many anglers believe that it should be, it will make it easier for the Management Board to adopt rebuilding measures that will be consistent along the entire coast, and so best protect the fish as they travel through the waters of the various coastal states.

One thing that seemed virtually certain after the recent PDT meeting is that Amendment 7 will not offer special protection to the 2015 year class, nor to the smaller but still important year classes of 2017 and 2018.  Although the Management Board will make the final call on such protections, the Plan Development Team currently plans to advise against them, for a very simple and legitimate reason—calculations made by the Atlantic Striped Bass Technical Committee indicate that protecting the 2015s, and maybe the 2017 and 2018 year classes will have little impact on striped bass rebuilding. 

With or without regulations protecting the 2015, 2017, and 2018 year classes, female spawning stock biomass is predicted to rise above the threshold level at about the same time, and also take the same amount of time to reach the rebuilding target.

There are some caveats around those projections. 

Because fishery managers can’t predict how any change in regulations will impact fishing effort, the projections assume that the current effort levels will be maintained throughout the rebuilding period.  While that may be a questionable assumption—protecting the three largest year classes produced during the last ten years might well dissuade some harvest-oriented anglers from fishing if they’re unlikely to bring a bass home, while the increasing abundance of fish attributable to a rebuilding population will probably cause catch-and-release anglers, and maybe some catch-and-keep anglers, too, to fish more often—it is the only realistic assumption for the Technical Committee to make, as any other option would be nothing more than an unsubstantiated guess.

But it is possible that, if fishing effort changed in response to any attempt to protect one or more year classes, the stock could—but not necessarily would—recover more quickly than if no such protections were put in place.

That leads to another, and perhaps greater, consideration.  The Technical Committee projected the impacts of year class protections out to 2032, the year that the 2018s turn 14 years old and are combined with other, older fish in a single “14+” age category.  Estimates of stock performance grow more and more uncertain the farther out into the future the projection goes.  So while it is possible that a particular combination of regulations might grow the female spawning stock biomass more quickly, there is no way to be sure.  A combination of management measures that included a 2-fish bag limit and 18- to 23-inch slot size in the Chesapeake Bay, coupled with a 35-inch minimum size on the coast, was calculated to result in a spawning stock biomass that, by 2032, was 14% larger than could be achieved with the current management measures (other combinations of Bay and coastal size limits would have theoretically increased SSB by between 1% and 8% by the same year), the “confidence interval,” which denotes the likely error, was larger than that, rendering the supposed 14% difference insignificant. 

In the end, the only way to increase the spawning stock biomass is the simplest and most obvious one:  If we want to have more live striped bass in the ocean, we need to start killing fewer of them.  Reducing fishing mortality is the only way to rebuild the striped bass stock.  We can do that by imposing seasons, when no striped bass fishing—even catch-and-release—is allowed, or we can do it by transforming some portion of the current catch-and-keep fishery, where 100% of the bass tossed into coolers are killed, into an expanded catch-and-release fishery, where 91% of the bass returned to the water survive.

But one way or another, the only way to restore the bass population is by killing fewer fish.

That’s why waiting for the stock assessment update to be released makes biological sense.  The update will tell fishery managers how large the biomass is today, whether it is still in decline, or or whether has begun to increase in response to the management measures put into place for the 2020 season.  Based on that information, the Technical Committee will be able to calculate the fishing mortality rate, deemed F_rebuild, which will restore the female spawning stock biomass to its target level by the end of 2029.  The assessment update will also provide an estimate of the current fishing mortality rate, which is needed to determine what measures will be needed to achieve F_rebuild and keep fishing mortality at or below that level until the stock is rebuilt.

The downside of waiting for the assessment update is that the management measures needed to achieve F_rebuild probably won’t be put into place until 2024, unless the Management Board is willing to impose a mid-season change of management measures at some point in 2023, which is a sort of action that the Management Board has historically been loath to take.  That means that managers will have only five, rather than six, years to rebuild the stock by the 2029 deadline, which in turn suggests that the management measures will have to be more restrictive if they are to achieve their goal.

Put all of that together, and it means that at least some members of the Management Board will probably try to find ways to delay rebuilding, so that the Board could adopt a somewhat more relaxed management regime.

Thus, one of the big, if unspoken, takeaways from the December 16 meeting is that the Plan Development Team is willing and able to put together a rebuilding plan that should restore the striped bass stock by 2029—IF the Management Board instructs it to do so.  Thus, the task that confronts those of us seeking to restore the striped bass stock is to keep the Management Board on the straight and narrow, and prevent them from inserting provisions into Amendment 7 that will permit, and even encourage, further rebuilding delays.

Successfully completing that task, and convincing the Management Board to formally adopt a plan to rebuild the stock by 2029, will undoubtedly be the most challenging part of the entire Amendment 7 process.

 

 

 

 

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.