MID-ATLANTIC FISH STOCKS: WHEN POLITICS DRIVES THE PROCESS

 Tomorrow, the Atlantic States Marine Fisheries Commission will be holding a webinar/hearing on the proposed “Recreational Harvest Control Rule.”  I probably should listen in, and perhaps provide comment, but I haven’t registered for the webinar yet, and I’m still not sure that I will.

Usually, I comment on management proposals out of a long-held belief that public input, if well-thought out and properly presented, can have a meaningful effect on the management outcome.  I’ll admit that, at times, trying to move the management process feels a lot like banging my head against a brick wall.  But over the years, I have also had regulators ask for my thoughts on various proposals and mention testimony I made at hearings some weeks after the fact, indications that public input was being heard and valued. 

And anyone who sat in on the May 2021 meeting of the ASMFC’s Atlantic Striped Bass Management Board knows that many Management Board members, in deciding what provisions should appear in the first draft of Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, referenced public comment as a major consideration driving their decisions.

That’s how the fishery management process is supposed to work, with science shaping the management options and the public—the ultimate owner of all the nation’s living marine resources—shaping the policy decisions that determine which of the various science-based management measures will ultimately be adopted.

Unfortunately, the fishery management process also has a political component, and when politics ends up driving that process, both good science and good public policy often end up riding in the back seat, where they can be all too easily forgotten and ignored.

That seems to be what’s happening with the Recreational Harvest Control Rule.

I’ve written about the Control Rule before, most recently five weeks ago, when I noted that it was being rushed through the approval process and an unreasonably fast pace.

That’s what happens when politics takes control.  And we should have no doubt that politics, and representatives of the recreational fishing industry, rather than representatives chosen by recreational fishermen, is driving the Control Rule process.

The history of the Control Rule arguably dates back to federal legislation called the Modernizing Recreational Fisheries Management Act of 2018—better known as the “Modern Fish Act”—which was largely an effort by various angling industry and industry-affiliated organizations to find a way to kill more red snapper in the South Atlantic and Gulf of Mexico than was possible under existing law.

In an effort to circumvent legally-mandated annual catch limits that restrict recreational red snapper landings to sustainable levels, the Modern Fish Act amended the Magnuson-Stevens Fishery Conservation and Management Act by, among other changes, adding a finding that

“While both provide significant cultural and economic benefits to the Nation, recreational and commercial fishing are different activities.  Therefore, science-based conservation and management approaches should be adapted to the characteristics of each sector.”

To further that finding, the Act added another amendment that gave regional fishery management councils

“the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulations, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component.  [emphasis added]”

However, the Modern Fish Act also made it clear that the existing provisions of Magnuson-Stevens that required regional fishery management council actions to prevent overfishing, timely rebuild overfished stocks, establish binding annual catch limits, and require fishermen to be held accountable for exceeding their catch limits remained in full force and effect.

While the effort to undermine federal red snapper management was unsuccessful, it probably isn’t surprising that many of the same affiliated recreational fishing industry organizations—the American Sportfishing Association, Center for Sportfishing Policy, Coastal Conservation Association, Congressional Sportsmen’s Foundation, National Marine Manufacturers’ Association, and Recreational Fishing Alliance—sought another opportunity to undermine Magnuson-Stevens’ disciplined, science-based management process, perhaps hoping that if “alternative” management measures could be established in any recreational fishery, anywhere in the country, that precedent might allow them to convince southern fishery managers to place less emphasis on annual catch limits and excessive recreational landings in the southeastern red snapper fisheries.  Thus, such organizations proposed what has now become the Recreational Harvest Control Rule in the Mid-Atlantic.

Mid-Atlantic fisheries were particularly vulnerable to such an effort, as there was wide discontent, particularly among the party boat fleet, with the Mid-Atlantic Fishery Management Council’s approach to black sea bass management.  While spawning stock biomass was well over twice the target level, indicating a more-than-healthy stock, recreational management measures were growing steadily more restrictive due to the high level of recreational fishing effort and the resulting high landings, a situation that was tailor-made for industry spokesmen who sought to inflame opinion against the federal fishery management process.

At first, it didn’t appear that the industry’s proposed control rule was going to go very far.  As noted in the transcript of the May 2020 meeting of the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board,

“One really important issue that the [Mid-Atlantic Council’s Fishery Management Action Team] highlighted was it doesn’t seem like this approach as described would be necessarily feasible under the current Magnuson requirements for catch limits and accountability measures.”

Thus, many of the traditional advocates of science-based fishery management were lulled into complacency, believing that the Control Rule was headed for a dead end.  The industry, however, worked with both the National Marine Fisheries Service and the Atlantic States Marine Fisheries Commission to come up with revisions to its original proposal that might, in theory, satisfy Magnuson-Stevens’ requirements.

It’s far from impossible that one or more of the Recreational Harvest Control Rule proposals will fully meet the legal standards imposed on federal fishery managers.  The problem is that, because the Control Rule effort has been hijacked by politics, the process is being rushed toward completion before the scientific merits of the Control Rule have been fully explored; the public is being asked to comment on management proposals without being given the information needed to know how such proposals will impact the long-term health of managed fish stocks.

Which is why I’m not sure that I’m going to participate in tomorrow’s public hearing.  I lack the information that I need to make informed comment.  It’s clear that the only other comment that I could make—that the process ought to slow down until the public can be fully informed, and is able to make intelligent comment—would be completely ignored, overridden by the political desire to have the Control Rule in place before the 2023 fishing season.

Neither state nor federal fishery managers want to adopt regulations that would further restrict black sea bass fishermen, even if 2022 recreational landings far exceed the recreational harvest limit for the year.  That message came through loud and clear when the Mid-Atlantic Council and the ASMFC’s Interstate Fishery Management Program Policy Board met last February; members’ concerns about moving too quickly were swiftly dismissed by other members’ deep reluctance to adopt more restrictive 2023 rules.

So, as I mentioned in the blog that I published in March, both the Council and the ASMFC seem Hell-bent on approving the Control Rule for the 2023 season, despite the fact that models deemed “critical” to the Control Rule will not be ready by that time, with one ASMFC representative justifying such haste by explaining—if that’s the right word—that such models were

“critical, not required.”

That sort of attitude, which prioritizes getting the Control Rule done quickly, rather than getting the Control Rule right, has characterized the entire Control Rule process.

Tomorrow night, New York stakeholders will be asked to comment on four possible approaches to the Control Rule.  In making their comments, they will be relying on the ASMFC’s Draft Omnibus Addendum to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and Bluefish Fishery Management Plan, which sets out the four approaches in detail.

Such draft addendum informs stakeholders that one option, the “Percent Change Approach,” differs from current management in that

“it includes additional consideration of biomass compared to the target level (B/B_msy) when determining if the recreational management measures should be liberalized, restricted, or remain unchanged.  The amount of change varies based on the magnitude of the difference between a confidence interval (CI) around an estimate of expected harvest and the average [recreational harvest limit] for the upcoming two years, as well as considerations related to biomass compared to the target level (B/B_msy).”

It then goes into more detail explaining how the approach works.

The draft addendum then goes on to describe the “Fishery Score Approach,” explaining

“The fishery score is a formulaic method that combines multiple metrics into one value which is used to determine the appropriate management measures.  Based on the score, the stock would be placed in one of four bins with corresponding management measures.  The fishery score would be based on four metrics: biomass (B) relative to the target (B_msy), recruitment (R), fishing mortality (F), and fishery performance…Each metric has a weight assigned to it, determined by the Technical/Monitoring Committee such that metrics with a stronger relationship to harvest would have more weight in the fishery score while still accounting for metrics that impact harvest but may not drive harvest.  Additional metrics may be added and weighting schemes adjusted as more data become, [sic] based on the recommendations of the Monitoring/Technical Committees.”

Again, more details of how the approach would work were provided.

Then there was the “Biological Reference Point Approach.”

“Under this option, the primary metrics of terminal year B/B_msy and F/F_msy from the most recent stock assessment would be used to guide selection of management measures.  Management measures would be grouped into seven bins…Each bin would have a set of default measures which would be implemented the first time the stock in placed in that bin.

“To define the bins under this option, fishing mortality (F) would be considered in two states:  overfishing (F greater than F_msy) or not overfishing (F equal to or below F_msy).  B/B_msy would be further divided to provide more responsive levels of access based on the following:

·        Biomass is greater than or equal to 150% of target.

·        Biomass is greater than or equal to the target but less than 150% of target.

·        Biomass is less than the target, but greater than or equal to the threshold (the threshold is ½ the target).

·        Biomass is less than the threshold (the stock is overfished).

“Recruitment and trends in biomass are secondary metrics under this option which are used to fine tune the default measures only when stock conditions (F/F_msy and B/B_msy) relative to the categories above have not changed between the prior and most recent assessments.  In this case, biomass trend and a recruitment metric…can be used to further relax, restrict, or re-evaluate measures.  As such, biomass trends and recruitment would impact the management measures, but to a lesser extent than F/F_msy and B/B_msy.”

I’m sure that, to most anglers and other stakeholders planning to comment on the draft addendum, such explanation, and the details that followed, made the merits of this approach perfectly clear…

Finally, there is the “Biomass Based Matrix Approach.”

“This option uses a matrix to set recreational measures based on two factors:  B/B_msy and the most recent trend in biomass (increasing, stable, or decreasing)…Using these two factors and four parameters for each…provides a three-by-four matrix to determine the appropriate management measure bin.  Bin A represents the optimal conditions, while Bin F represents the worst conditions.  Certain pairs of conditions (e.g., a healthy stock that is increasing or an abundant stock with any biomass trend) are treated as equivalent to reduce the number of bins to six.”

Based on those four descriptions, supported by pages of additional details, do you believe that you could pick the best management approach to use for the Control Rule?  Do you believe that the average stakeholder attending the hearing could do so?

I do my best to stay on top of the fishery management process, and think that I have a pretty good layman's understanding of the science underlying management issues, but I freely admit that I have no idea how to compare the merits of each possible Control Rule approach.

I suspect that the people who developed the four approaches couldn’t explain their relative merits, either.

I harbor that suspicion because I took the trouble to ask. 

When I attended the Saltwater Recreational Fishing Summit a couple of weeks ago, I happened to run into a member of the Mid-Atlantic Council staff who was very familiar with the development of the Control Rule, along with a NMFS staffer who was also involved with the development process.  Over the course of our conversation, I expressed my view that the process was being rushed along far too quickly, and asked a few questions that the other folks could not readily answer.

The NMFS staffer tried to justify the undue haste by parroting the Modern Fish Act argument that recreational and commercial fisheries are different, and should be managed differently. 

I don’t disagree with the staffer’s assertion. 

The problem is that the biggest difference between the two sectors is that commercial landings are reported by every commercial fisherman, confirmed by reports filed by the fish buyers, and can be tabulated in near real time, making commercial data both accurate and timely.  Recreational landings data, on the other hand, are derived from the Marine Recreational Information Program surveys, and thus necessarily contain a significant degree of uncertainty.  

Because of such management uncertainty, recreational fisheries should be managed more conservatively, to account for the inevitable errors.  But the Recreational Harvest Control Rule does just the opposite, creating greater opportunities for the recreational fishing sector to exceed its catch limits, while the commercial fishing sector, despite its far less uncertain data, is held to hard quotas and mandatory pound-for-pound paybacks of any overages.

The 2000 federal appeals court decision in Natural Resources Defense Council v. Daley creates a legal standard for federal fishery management measures.  In creating that standard, the court said

“Government counsel conceded at oral argument that, to meet its statutory and regulatory mandate, the [National Marine Fisheries] Service must have a ‘fairly high level of confidence that the quota it recommends will not result in [fishing mortality] greater than [the target fishing mortality].’  We agree.  We also hold that, at the very least, this means that ‘to assure’ the achievement of the target [fishing mortality], to ‘prevent overfishing,’ and to ‘be consistent with’ the fishery management plan, the [total allowable landings] must have at least a 50% chance of attaining [such fishing mortality target].  [citations omitted]”

Yet when I asked the Council staff member whether the Control Rule would allow such staff member to say, with confidence, that there would be at least a 50% chance of preventing overfishing or exceeding the catch limit, I couldn’t get a clear answer.  Instead, along with some hemming and hawing and talk of “challenges,” I was told that the Control Rule represented a process, not a specific set of management measures.

The ”process” part may be true, but it’s also true that the end product of such process is a set of recreational management measures for the species in question, and we have not yet received any assurance that such management measures will be able to meet the NRDC v. Daley standard.

Nor have we received any information on the most important consideration on any of the four “approaches” described in the draft addendum:  How any of them will affect the health of fish stocks.

Remember that one of the key motivations behind the Control Rule, and particularly behind the haste to implement the Control Rule by the end of this year, is political:  A desire to increase the recreational black sea bass harvest in order to please a faction within the recreational community, along with a desire to avoid politically unpopular restrictions on black sea bass landings.

And maybe that makes sense with black sea bass, at least so long as spawning stock biomass soars will above the biomass target.  With biomass as high as it currently is, even severe overfishing for a couple of years probably wouldn’t reduce such biomass below its target.  There is plenty of room for error.

But how will the Control Rule fare with stocks at more typical levels of abundance, which hover somewhere between the biomass target and threshold? 

So far, no one has provided such information.

Which of the four approaches is more likely to see a somewhat depleted stock rebuild to target?  Or, looking at it from the opposite perspective, which of the approaches is more likely to maintain a currently healthy stock at its target level, and which is more likely to push a healthy stock into decline?

So far, no one has provided such information.

Which of the four approaches is more likely to prevent overfishing, and which is more likely to let overfishing occur?

So far, no one has provided such information.

Both the Council and the ASMFC have expressed concern about the impact of the uncertainty in recreational fishing data on regulations, perhaps forcing regulatory change when such change isn’t needed.  Perhaps the Percent Change Approach, with its consideration of the confidence interval surrounding the recreational data, helps to ease such concerns.

But no data is perfect; there is always some uncertainty involved.  And given that the other three approaches—Fishery Score, Biological Reference Point, and Biomass Based Matrix—consider more streams of data than does the current management practice, is it possible that such Control Rule approaches will actually introduce more uncertainty into the management process than currently exists?

So far, no one has provided such information.

Yet, without such information, it is impossible to provide intelligent, informed comment on the draft addendum, and for that reason, there is a good chance that I won’t attend the public hearing.  I lack the information needed to make a reasoned case for any alternative, including the status quo.

Normally, I’d feel guilty about remaining silent.  But in the case of the Recreational Harvest Control Rule, I feel no guilt at all.

That’s because I know that the Control Rule effort isn’t being driven by science.  It isn’t driven by well-considered public policy. 

It is being driven by a political agenda, by an industry that seeks to boost short-term profits by boosting the recreational kill of not only black sea bass, but summer flounder and scup (and, in the future, bluefish too, although being overfished, they are currently shielded by the rebuilding provisions of Magnuson-Stevens).

And when politics is in the driver’s seat, there is little point standing in the way and being run over.

We can only hope, when the dust clears and the Control Rule is inevitably put into place, that Mid-Atlantic fish stocks aren’t run over, too.