THE FLUKE FAIRNESS ACT: WHY IT IS (BUT SHOULDN'T BE) NEEDED

Scroll through the list of bills introduced in the current session of the Senate, and you’ll come across S 1747, a bill introduced by Sen. Charles Schumer (D-NY) a little less than a year ago. The legislation is called the “Fluke Fairness Act.”  It’s one of a series of bills with that name, introduced over the past few sessions of Congress, and the fact that Senator Schumer had to introduce it at all is testimony to one of the biggest flaws in the federal fishery management system.

It's stuck in the past.

Think back to the early 1980s, if you were even alive back then.  You might recall the Reagan presidency, the dying days of disco, the first IBM PCs, and Atari gaming systems that hooked up to your TV and play games such as "Space Invaders" and "Pong."  

All of those things are long gone.

But one thing that you might not remember were how many summer flounder were caught by the boats from various states, in both the commercial and recreational fisheries.  Yet when the fluke catch was allocated between the commercial and recreational sectors, and between commercial fisheries in each coastal state, such allocations were based on what happened back in the 1980s—and those forty-year-old landings still govern today.

The Mid-Atlantic Fishery Management Council, along with the Atlantic States Marine Fishery Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board, has poked at them a little, and spent a lot of time debating reallocation, but in the end, little has changed.

Yet a lot of things have happened since Ronald Reagan handed over the White House to George H. W. Bush, things that include a warming ocean, and the steady movement of summer flounder to the north and east.  Such movement has been so pronounced that a benchmark stock assessment, completed in 2018, noted that

“In recent years the proportion of recruits in the south has declined while the proportion in the middle area has increased.  Spawner biomass is more evenly split between the middle and south regions, but similar to recruits, the proportion of spawner biomass in the south has declined as the proportion in the middle and northern areas has increased.

“…summer flounder are shifting northeast over time, and this shift has continued in recent years…the shift northward is evident even in small fish, indeed, recruits appear to be shifting northward at a faster rate than spawners, suggesting that they are not merely tracking the expansion of spawners northward.  There are apparent changes in spatial distribution of summer flounder over the last four decades with a general shift northward and eastward.  Spatial expansion is more apparent in the years of greater abundance since 2000, although it has continued even with the more recent declines in biomass.”

Yet even if both small and spawning-sized summer flounder “are shifting northeast over time,” and there has been “spatial distribution of summer flounder over the last four decades with a general shift northward and eastward,” one thing remains unchanged:  The greatest part of the commercial summer flounder quota resides with the southern states, where the flounder were, and has not shifted northward and eastward along with the fish.  

The baseline allocation still awards 27% of commercial landings to North Carolina and 21% percent to Virginia, even though the center of summer flounder abundance is probably somewhere south of New York, which only receives 7.5% of such allocation.

In 2019, the allocation was tweaked just a bit, to throw the northern states a few crumbs.  While the baseline allocation remains in effect if the commercial summer flounder catch limit is below 9.55 million pounds, any additional quota will be divided up among the states more evenly, with all states between Massachusetts and North Carolina, except for Delaware, receiving 12.375% of such additional quota.  Under any imaginable scenario, North Carolina and Virginia will still receive the lion’s share of the catch.

Even that modest concession was condemned by southern fishermen, who called any effort to provide more fish for their northern counterparts a

“quota grab,”

argued that

“with any allocation, there are winners and losers…reallocation will bankrupt people in the south…[and that] managers shouldn’t take what people have and give it to other states,”

and complained that

“changing allocations will affect business models and business plans.”

In late 2019, the State of New York filed suit against the U.S. Secretary of Commerce, seeking to challenge the summer flounder allocation; to date, the courts have provided the state no redress.  Thus, Senator Schumer’s Fluke Fairness Act may offer the only chance to bring summer flounder allocations into the 21^st Century.

It is a simple bill, only five sections long,  The heart of the Act is Section 4(a), which reads

“Fishery Management Plan Modification.—Not later than 1 year after the date of enactment of this Act, the Council shall submit to the Secretary, and the Secretary may approve, a fishery management plan for the commercial management of summer flounder under title III of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1851 et seq) or an amendment to such plan that shall be based on the best scientific information available; establishes commercial quotas in direct proportion to the distribution, abundance, and location of summer flounder as reflected by fishery independent surveys conducted by the National Marine Fisheries Service and State agencies; considers regional, coastwide, or other management measures that comply with the National Standards; and prohibits the establishment of commercial catch quotas for summer flounder on a State-by-State basis using historical landings data that does not reflect the status of the summer flounder stock, based on the most recent scientific information.  [internal numbering and formatting omitted]”

Managing summer flounder based on current distribution and abundance, rather than on what fishermen, many of whom are now undoubtedly retired or dead, caught four decades ago seems a sensible way to proceed.  However, just as Vladimir Putin denies that the Ukraine exists separate from Russia, because of how things stood one hundred or more years ago, the southern fishermen claim a virtually unextinguishable right to a summer flounder quota based on the last century’s landings.  And like Putin, those who hold outdated quotas choose to ignore today’s realities.  

Thus, while Senator Schumer’s bill shouldn’t be necessary, fishermen’s refusal to address the realities of shifting stocks creates no other alternative.

Such intransigence isn’t limited to summer flounder.  Warming waters and shifting stocks have impacted many fisheries, particularly off the upper mid-Atlantic and New England coasts, but the regional fishery management councils, faced with fishermen unwilling to embrace any sort of change, have offered no meaningful relief.

Thus, when Rep. Jared Huffman (D-CA) distributed a discussion draft of the bill that eventually became Sustaining America’s Fisheries for the Futures Act of 2021, that draft included a section that would create a so-called “shifting stocks task force,” which could compel the councils to act on reallocation.  Such task force would have been composed of recognized fishery experts, but would have excluded members of the regional fishery management councils.  It would have been directed to

“develop, in consultation with the Administrator [of the National Oceanic and Atmospheric Administration] and Regional Fishery Management Councils, science-based decision-making criteria to make allocation determinations that minimize the risk of overfishing and maximize stock and ecosystem resilience with the effects of climate change, are consistent with the national standards, the other provisions of the Magnuson-Stevens Fishery Conservation and Management Act…and any other applicable law.”

And things wouldn’t have stopped there.  The task force would also have made

“recommendations to the Administrators and to the Regional Fishery Management Councils…for the allocation and distribution of fishing privileges based on [the science-based criteria that it had developed].”

 Even more frightening to current quota holders, the discussion draft language provided that

“Any member of the public may present a petition to request the review of potentially shifting stock…

“Upon completion of a review [of such petition] the Task Force shall determine which Regional Fishery Management Council’s or Councils’ geographic area of authority the fishery is located in; and submit to the Administrator, each affected Regional Fishery Management Council, and the petitioner written recommendations for allocation and distribution of fishing privileges within the fishery [internal formatting and numbering omitted]”

Such recommendations could not be ignored.  Instead,

“Upon receipt of a recommendation from the Task Force…the Administrator shall begin consultation with the affected Regional Fishery Management Council regarding necessary changes to fishery management plans; and not later than 180 days after the date of receipt of the Task Force’s recommendation, ensure that a compliant fishery management plan that fully accounts for the best available science on shifting stocks and the recommendations of the Task Force is created, published, and implemented.  [emphasis added; internal formatting and numbering omitted]”

Fishermen are very comfortable keeping allocation decisions within regional fishery management councils, where they have some control over the outcomes, and there are no legally enforceable criteria that might compel them to cede quota to someone else.  To quota holders, few things could seem as threatening as the concept of basing allocation on clear, science-based criteria that reflects the current state and spatial distribution of a stock, rather than on events that happened many decades ago.

Thus, the Standing Stocks Task Force section was, unfortunately, removed from the version of the bill that Rep. Huffman eventually introduced. 

Allocation decisions remain rooted in the past, and legislation such as Sen. Schumer’s Fluke Fairness Act remain the sole vehicle that might yet compel fishery managers to make allocations that reflect present, and perhaps even future, realities.