People too often take
things for granted, depreciating what they have simply because it’s familiar;
sometimes, things must be seen through someone else’s eyes before they are
fully appreciated. That certainly seems to be true of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens).
When the Sustainable Fisheries Act of
1996 (SFA) became law, amending Magnuson-Stevens, Congress
created something which had not been seen before. Prior to the SFA, fisheries
laws, including the Fishery Conservation and
Management Act of 1976, which gave birth to Magnuson-Stevens, were
primarily concerned with creating, protecting, and subsidizing fishing
industries.
Magnuson-Stevens was
the first law passed by a major fishing nation that was primarily concerned
with protecting the fish on which such industries depend.
For the first time,
fishery managers were required to end overfishing, even if doing so caused
short-term economic harm. For the first time, overfished stocks had to be
rebuilt within a time certain; if biologically feasible, such rebuilding time
could not exceed ten years.
Thanks to such
mandates, the United States’ depleted fish stocks began to rebuild. According
to the National Marine Fisheries Service (NMFS), 47 once-overfished stocks have
been rebuilt since 2020. NMFS believes that,
out of 460 managed stocks and stock complexes, only 49 remain overfished and 26
are subject to overfishing, although the status of some managed stocks remains
unknown.
Despite such success,
Magnuson-Stevens is frequently criticized. Dr. Brian Rothschild, a biologist
sympathetic to the commercial fishing sector, has argued that federal
regulators have taken an “unnecessarily hard-line, inflexible approach” to the
law’s provisions, “that wastes fisheries resources, minimizes landings, and
kills jobs.”
However, most
criticism of Magnuson-Stevens comes from the recreational fishing industry. In
2009, commercial and recreational fishermen staged a rally at the Capitol Building in
Washington, hoping to convince Congress to weaken the law. Jim Hutchinson Jr.,
then the managing director of the Recreational Fishing Alliance, an “anglers
rights” group, claimed that “This is a much bigger issue than any one state
issue or individual grievance. Whether it’s our restrictive fluke fishery in
New York, the arbitrary closure of state waters for our anglers in California
or the shutdown of red snapper and amberjack down South, our community has been
divided by preservationist tactics for too long. It’s time to unite the claims
in defense of our coastal heritage and traditions.”
That effort failed,
but the recreational fishing industry continued its efforts to undercut the
law.
In 2014, a coalition
of industry-affiliated organizations released “A Vision for Managing America’s
Saltwater Recreational Fisheries,” a document which argued that,
While the Magnuson-Stevens Act has produced a demonstrable
improvement in fish stocks, we now need to manage that success in a way that
fully develops saltwater recreational fishing’s economic, social and
conservation benefits to our nation…The NMFS should manage recreational
fisheries based on long-term harvest rates, not strictly on poundage-based
quotas. This strategy has been successfully used by fisheries managers in the
Atlantic striped bass fishery, which is the most sought-after recreational
fishery in the nation. By managing the recreational sector based on harvest
rate as opposed to a poundage-based quota, managers have been able to provide
predictability in regulations while also sustaining a healthy population.
Events later
demonstrated that the Atlantic States Marine Fisheries Commission’s (ASMFC) use
of “soft” management targets, rather than hard-poundage quotas, didn’t work
quite as well as the fishing industry groups claimed; a benchmark stock assessment released
in 2019 revealed that such management had allowed the once-thriving striped
bass stock to become overfished, and that such stock was also experiencing
overfishing.
Nevertheless, the
industry pressed forward, convincing Rep. Garret Graves (R-LA) and Sen. Roger
Wicker (R-MS) to sponsor the Modernizing Recreational
Fishery Management Act, which in its initial version would have
largely relieved the recreational sector of the burdens of science-based
fisheries management, and allowed federal managers to adopt the same
ineffective management approaches that failed the striped bass.
Although such
legislation was signed into law late in 2018, the version that made it through
Congress left the key conservation provision of Magnuson-Stevens intact, and
merely 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 regulation, such as extraction rates, fishing mortality targets,
harvest control rules, or traditional or cultural practices of native
communities in such fishery or fishery component.”
Based on such
language, six of the same organizations submitted a letter to the
Mid-Atlantic Fishery Management Council, which requested that such
council replace the current hard-poundage catch limits for the recreational
fishery with a “control rule” that held anglers to less rigid landings targets.
In response to such letter, and to follow-up conversations, the council and the
ASMFC developed a “harvest control rule”
that, if adopted, will radically change how the recreational summer flounder,
scup, black sea bass, and bluefish fisheries are managed.
Depending on the form
that such harvest control rule takes, it could largely or completely divorce
recreational management measures from both the annual catch limit and the
recreational fishery’s actual landings. Whether such control rule would comply
with the legal standards established in Magnuson-Stevens remains a debatable issue.
Yet, as fishermen in
the United States, and some NMFS employees, seek to move away from
Magnuson-Stevens’ demonstrably successful management standards, other nations
have been moving their management standards closer to those of
Magnuson-Stevens.
The European Union
(EU) adopted a common fisheries policy,
which became effective on January 1, 2014. Although less prescriptive than
Magnuson-Stevens, at least with respect to conservation issues, the policy
sought to end overfishing and limit harvest to the maximum sustainable yield
for each managed stock by 2020. Rules established pursuant to
the policy require that a total allowable catch (TAC) for most
managed stocks be established each year, although for certain deep-water
species, such TAC need be set every two years. According to the EU,
each member nation is “responsible for assuring that the quotas are not
exceeded. When an EU country’s available quota for a species is exhausted, it
must close the fishery.”
While critics note
that the common fisheries policy has, in practice, been irregularly applied,
and that many stocks are still experiencing overfishing, The Pew Charitable Trusts
observed that “decision-makers have continued to bring fishing
pressure overall closer to scientific advice, and fish populations have
responded to these improvements, on average growing in size. This growth, in
turn, has helped to bolster fishing industry profits, with the Commission’s
data showing average profitability close to all-time highs.”
Thus, although the EU
still hasn’t realized the level of success achieved by the United States
subsequent to passage of the SFA, adoption of science-based management measures
in many of its fisheries has it moving in the right direction. Important
European fish stocks, and European fishermen, are benefitting from the new
management approach.
Canada took longer to
adopt such science-based measures, but once it did, they were more rigorously
applied.
Canada’s requirements
for conservative, science-based management aren’t found in that nation’s Fisheries Act, but in rebuilding regulations that
were only published on April 4, 2022. Such regulations provide that any
rebuilding plan required by the Fisheries Act include, among other things,
“measurable objectives aimed at rebuilding the stock, including a target for
rebuilding the stock; the timelines for achieving the objectives;…a method to
track progress toward achieving the objectives; and a schedule for periodic
review of the plan in order to assess progress in achieving the objectives and
to determine whether an adjustment to the plan is needed. [internal numbering
and formatting omitted]”
The rebuilding
regulations, like Magnuson-Stevens, require that a rebuilding plan be completed
within two years although, unlike United States law, the Canadian regulations
allow that time period to be extended by as much as 12 months if such extension
is justified, in writing, by the Minister of Fisheries.
The regulatory impact
analysis statement that accompanies the rebuilding regulation notes that “a
number of commercially significant marine fish stocks in Canada are at low
levels. Others are at risk of decline…Preventing their decline by managing them
sustainably will preserve important ecosystem functions and improve economic
outcomes for the fish and seafood sector.”
It also refers to
another policy document, “A fishery decision-making
framework incorporating the precautionary approach” (Precautionary
Approach), which incorporates many of the principles found in Magnuson-Stevens,
including reference points that denote a healthy and an overfished stock
(respectively deemed the Upper Stock Reference Point and the Limit Reference
Point), the need to consider uncertainty when calculating such reference
points, and aggressively rebuilding stocks which have fallen below the Limit
Reference Point, and are in the so-called “critical zone.”
Pursuant to the
Precautionary Approach, when a stock is “In the critical zone, management
action must promote stock growth and removals from all sources must be kept to
the lowest possible level until the stock has cleared this zone. There should
be no tolerance for preventable decline. When a stock has reached the critical
zone, a rebuilding plan must be in place with the aim of having a high
probability of the stock growing out of the critical zone within a reasonable
timeframe.”
Such requirements are
arguably even more stringent than those imposed by Magnuson-Stevens; the
mandate that “removals from all sources must be kept to the lowest possible
level” led to Canada’s recent decisions to
completely shut down fisheries for Atlantic herring and Atlantic mackerel, and
reduce landings of Pacific herring.
Other nations,
including Canada and the member states of the EU, are beginning to understand
that it is impossible to maintain healthy fisheries in the long term without
maintaining equally healthy fish populations; to better ensure the health of
fish stocks, they are adopting some of the same precautionary, science-based
management principles that are found in Magnuson-Stevens.
It is thus both ironic
and dismaying that, just as foreign jurisdictions are beginning to adopt
fishery management approaches that more closely resemble those that the United
States embraced twenty years ago, some U.S. fishermen, legislators, and fishery
managers are seeking to undermine Magnuson-Stevens, so that federal fishery
managers may adopt the sort of shortsighted fishery management measures that
have already failed elsewhere.
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This essay first
appeared in “From the Waterfront,” the blog of the Marine Fish Conservation
Network, which can be found at http://conservefish.org/blog/
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