WHEN FOXES WATCH THE FISHERIES HENHOUSE

 

Marine fisheries management differs from most forms of wildlife management simply because it is the only form of management where non-professionals—typically non-professionals without formal scientific training, but with a direct financial interest in the resources being managed—can tell professional managers what to do.

If I go hunting for ducks, I’m subject to rules developed by biologists employed by the United States Fish and Wildlife Service.  If I’m fishing for trout, pickerel, or freshwater bass here in New York, my conduct is governed by decisions made by the Department of Environmental Conservation, which also determines what I can do while pursuing squirrels, pheasant, or bear.

In all of those cases, the professional managers might ask sportsmen for input, perhaps as to whether they’d prefer a longer season or higher bag limit.  And if regulations need to be altered, the proposed changes will be released for public comment before they go into effect.  But in all cases, professional managers make the final call, rather than individuals with an economic or other interest in the outcome.

But in marine fisheries, thingsdon’t work that way.  Instead, the regulated community—members of the commercial and recreational fishing industry, as well as recreational fishermen—can and do directly decide regulatory outcomes.

The other day, New York’s Marine Resources Advisory Council met to discuss, among other things, the 2023 recreational rules for black sea bass.

Black sea bass regulation is always a touchy subject, because the fish are currently very abundant; a recent stock assessment update found that current spawning stock biomass was twice the target level.  Because they're more abundant than anything else, except possibly scup, people are catching a lot of them in a lot of places.  Anglers tend to concentrate effort on whatever is easiest to catch at the time, so many have focused their effort on sea bass, leading to ever high landings which in recent years, have exceeded the recreational harvest limits and required more restrictive regulations to keep anglers' landings a a sustainable level.

Anglers don’t understand why a seemingly abundant resource should be subject to increasingly restrictive regulations, and the angling industry is angered by rules that they consider both unnecessary and bad for business.  There are a lot of folks who don't believe that black sea bass regulations should change at all.

However, even when managers used a new approach to setting recreational regulations for black sea bass, which was recently adopted by the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission and designed to allow higher landings, they found that they had to reduce black sea bass landings by 10%, compared to what they had been in 2022.

New York offered three ways to do that.  The size limit could be increased from 16 to 16 ½ inches, the season start could be pushed back from June 23 to July 1, or the season start could be pushed back from June 23 to June 28 and the bag limit could be reduced from 3 fish 2 for the period June 28 through August 31.

The last alternative had little support, so vote came down to a choice between increasing the size limit or shortening the season.  Arguments could be made for and against both proposals; a questionnaire distributed by the state regulators found that private boat anglers preferred the shorter season, while the for-hire industry preferred the higher size limit; a representative of the fishing tackle retailers seemed to prefer the higher size limit, too.

That preference for the higher limit seemed somewhat surprising, since the previous increase from 15 ½ to 16 inches caused a lot of industry ire, and plenty of people from the for-hire fleet seemed opposed to the new increase when it had first been proposed.

But then, as the meeting went on, a speaker from the audience cast a little more light on the issue.

I’m not sure whether he was a commercial fisherman, or belonged to the for-hire fleet, although his comments suggested the latter.  He came up to the dais and told the Council that the recreational fishing industry would always prefer seeing the size limit go up a half-inch, rather than losing any days of the season, because on a boat where no one is watching, or on a party boat, fishermen aren’t going to pay attention to that extra half-inch anyway.

In other words, he supported changing the regulations to increase the size limit because, in the world as he viewed it, such increase didn’t represent any real change at all, because people would merely ignore it.

The Advisory Council, which is overwhelmingly composed of folks in the recreational and commercial fishing industries, recommended that New York adopt the 16 ½-inch size limit in a nearly unanimous vote. 

While the Department of Environmental Conservation isn’t compelled to accept the Council’s advice, such a lopsided vote will be nearly impossible to ignore, even if everyone recognizes that compliance with the new limit may be dismayingly low.  Because of industry dominance of the Advisory Council, there was never much doubt about how the vote—and almost certainly the regulations—would turn out, despite the compliance questions that such regulations raise

That’s true even though New York’s Environmental Conservation Law gives the DEC quite a bit of latitude to adopt management measures that are contrary to Advisory Council advice.  Section 13-010 5(c)(3) of that law only requires that

“In making the final decision on such regulations, the department shall be guided by the recommendations of the marine resources advisory council and, consistent with the marine fisheries conservation and management policy set forth in subdivision one of this section and the requirements of subparagraph three of paragraph (b) of subdivision one of this section, shall endeavor to incorporate such recommendations in the final rulemaking.  The department’s assessment of public comment published in the state register shall set forth the council’s recommendations and an explanation of the department’s final decision in regard to such recommendations and the requirements of this section.”

There have been multiple occasions when the agency has not followed the Advisory Council’s recommendations, when it determined that it would not be prudent to do so, although that probably won't be the case with 2023 black sea bass rules.

Federal fisheries managers, acting pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, have far less leeway to adopt regulations contrary to the recommendations of a regional fishery management council.  The Secretary of Commerce—which, as a practical matter, means the National Marine Fisheries Service—has the authority to act if a regional fishery management council fails to produce a management plan within two years after a stock is declared overfished, and may also act if an existing rebuilding plan is not making sufficient progress toward ending overfishing and rebuilding the relevant stock.  

Otherwise, the agency’s role is limited to approving a fishery management plan drafted by a regional fishery management council, disapproving such plan, or approving such plan in part while also disapproving one or more of its provisions.

As the regional fishery management councils are also dominated by representatives of the commercial and recreational fishing industries, industry concerns typically drive fishery management decisions.  While the provisions of Magnuson-Stevens, which require fishery management plans to prevent overfishing, rebuild overfished stocks within a time certain, and base management decisions on the best available scientific information, the regional fishery management councils have demonstrated real creativity in finding ways around the statutory requirements.

The New England Fishery Management Council, which for many years eschewed annual commercial quotas in favor of input controls such as limitations on days at sea, permitted cod and other northeastern groundfish to be overfished for many years, until a 2006 amendment to Magnuson-Stevens, largely inspired by the New England Council’s failures, required annual catch limits for all managed stocks.

The Mid-Atlantic Fishery Management Council, in an action recently approved by NMFS, adopted a so-called “harvest control rule,” which allows managers to set annual recreational harvest limits that exceed both the recreational harvest limit and the sector annual catch limit.  In justifying the rule, NMFS put forward a very liberal interpretation of the definition of “overfishing,” which would condone management measures that permit the fishing mortality threshold to be exceeded in any given year, so long as such levels of harvest don't continue in the long term.  However, what might constitute “long term” overfishing was never defined.

Even so, Magnuson-Stevens provides at least some limits on council members’ discretion.  The same can’t be said for the Atlantic States Marine Fisheries Commission’s various management boards, which don't need comply with any legally-enforceable standards governing management actions.

Because such management boards may exercise unbridled discretion when adopting management measures, they have a history of questionable decisions.  In 2014, the ASMFC’s Atlantic Striped Bass Management Board failed to comply with a provision of its own management plan, which required it to initiate a 10-year rebuilding plan after a benchmark stock assessment found that fishing mortality was well above its target, and spawning stock biomass below its target, tripping a management trigger. 

While it would probably wrong to argue that such decision led to the striped bass stock becoming overfished—a later assessment revealed that it was probably already overfished at the time—it’s difficult to argue that the failure to initiate the rebuilding plan didn’t lead to a further decline in the stock, leading to a more difficult rebuilding process.

Now, after 2022 recreational striped bass landings spiked 91% above those in 2021—and that’s if measured in individual fish; if measured in pounds, the increase is substantially larger—no one has too much confidence that the management board will act quickly to bring such landings back down to a level that will allow the stock to rebuild by the 2029 deadline specified in the management plan.

We saw something similar in 2013, when the Winter Flounder Management Board took action took action to liberalize recreational fishing regulations for the Southern New England/Mid-Atlantic stock, even though such stock had already collapsed.  In allowing states to expand what had been a 60-day fishing season, which ran from the 1^st of April through the 30^th of May, to a 10-month season stretching from March 1 through December 31, management board members argued that since the New England Fishery Management Council was permitting trawlers to land as much as 5,000 pounds of southern New England flounder as bycatch in the ocean fishery, it only made sense to liberalize inshore regulations, so that anglers could retain more of the troubled flounder, too.

At the same time, the ASMFC management boards have also made their share of good decisions; Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, adopted last May, is a case in point.

The problem is that, because the ASMFC is not governed by any legally-enforceable standards, the quality of its decisions can vary depending on factors that might include sympathy for the regulated fishermen (no one wants to put people out of work, even if a collapsing stock might do the same thing), a fear of adopting measures that might be more restrictive than necessary (although the possibility that rules might be inadequately restrictive doesn’t seem to raise similar concerns), and a sense of interstate comity that can, at times, stay managers’ hands when action is needed, or lead to actions being taken even though they may not be in the best long-term interests of either the fish or the fishery.

The biggest determinant of management board actions tends to be the composition of the board itself, and the philosophy that each board member brings to the table.  We have seen board members who live in the past and reject scientific advice, and we have seen board members who work very hard to convince their colleagues to adopt conservative, science-based measures.  Some steadfastly look out for their own industry’s interests, while others take a more expansive view.  A change in only a handful of members can have a disproportionately large impact on board decisions.

Yet, whether talking about management at the state level, at regional fishery management councils, or at the ASMFC, the question remains:  Why shouldn’t marine fish be managed by professionals, more likely to base their decisions on the best available science and the health of fish stocks, rather than by fishermen and members of the fishing industry, who will inevitably be placed in positions where they will have to choose between the public’s interests and their own?

Why shouldn’t fishermen and the fishing industry be limited to advisory roles, where their concerns and experience can inform, but not dictate, management decisions?

In some ways, such questions are academic, for laws at both the federal and state levels have been in place for so long, and are so well established, that there is no realistic chance that the current system will be abandoned for one more closely resembling that used to manage other living natural resources.

At the same time, it is not impossible to hope that NMFS will place more people on regional fishery management councils who, if not disinterested, will still represent a more diverse array of interests than the industry members who currently dominate such panels.  It is not an impossible hope that states will make a better effort to appoint people who do not have vested economic interests in the fisheries that they help to manage to both state panels and to the ASMFC.

If that is not done, private interests will continue to dominate the management process, as they dominate the process today.

And the public interest will suffer.