Thursday, May 25, 2023

NON-COMPLIANCE AT THE ASMFC: IS IT TIME TO INCREASE THE COST?

 

Prior to 1984, state fisheries management on the East Coast was, at best, chaotic.  Every state was on its own, free to adopt—or refuse to adopt—whatever regulations it chose, even when such actions affected the health of stocks that regularly migrated in and out of state waters. 

Things came to a head when the striped bass stock collapsed. 

States were looking at the drastic decline of a species that spawned in the Chesapeake Bay (the Hudson River and Delaware Bay also produced bass at the time but, like today, in far lower numbers), migrated as far north as Maine, and wintered off North Carolina.  No one state had the power to reverse the decline and begin rebuilding bass numbers, because one state’s regulations, no matter how restrictive, became meaningless as soon as the bass swam out of state waters.

As a result, states were reluctant to adopt rules that might negatively impact their local fishermen, knowing that they would only be protecting fish that might later be caught by fishermen in another jurisdiction.  The continuing decline eventually forced many states’ hands.  Some adopted larger size limits, while some completely shut down their fisheries.

Some were reluctant to do either.  When New York’s Senate and Assembly passed legislation to raise the striped bass size limit to 24 inches, then-Governor Mario Cuomo seriously considered vetoing the bill, although he eventually signed it at the urging of governors from other northeastern states.

Even after such actions were taken, the coast remained a patchwork of inconsistent rules, and the bass population continued to suffer. 

That changed in 1984, after Congress passed the Atlantic Striped Bass Conservation Act, which authorized the Atlantic States Marine Fisheries Commission not only to devise a striped bass management plan, but to compel all coastal jurisdictions to adopt and enforce it.  Any state which failed to do so risked having a federal moratorium imposed on its striped bass fishery.

As a result, all the states adopted uniform rules, and the striped bass stock was rebuilt.

In 1993, Congress expanded the ASMFC’s management authority by passing the Atlantic Coastal Fisheries Cooperative Management Act, which gave the ASMFC the power to impose its management plans for all ASMFC-managed species on its member states, and authorized the Secretary of Commerce to shut down the relevant fisheries of states which don’t comply.

However, the ASMFC is based on the principle of cooperative management, and there will always be people who don’t cooperate when they believe that they can get more by striking out on their own.  Such folks began to examine the Atlantic Coastal Fisheries act, seeking its Achilles’ heel.

It didn’t take them too long to find it:  Imposing a moratorium under the Act takes time.

Before a moratorium may be imposed, the ASMFC’s relevant species management board must first find a state out of compliance.  Then, the ASMFC’s Interstate Fishery Management Program Policy Board must agree.  Once non-compliance has been established, the ASMFC has ten “working days” to notify the Secretary of Commerce of its non-compliance finding.  The Secretary then has 30 days to determine not only that the state in question is, in fact, out of compliance with the terms of a management plan, but also

“whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.”

After that, if the Secretary of Commerce decides that the state has, in fact, failed to comply with a portion of the management plan that is necessary to achieve conservation goals, she would have to impose a moratorium on the relevant state fisheries, but could delay the moratorium's implementation by up to six months.

That long sequence of actions provides an uncooperative state the opportunity to go out of compliance with a fishery management plan, continue to fish at impermissibly high levels for much of the season, and then agree to comply with the plan only at the last minute, after the decision to impose a moratorium has been made.

Depending upon the compliance date (the date by which a state must conform to the most recent version of an ASMFC management plan), the timing of the next management board and Policy Board meetings, whether or not the Secretary of Commerce waits the full 30 days before issuing the moratorium decision, and when any moratorium might become effective, a state might be able to fish for most--even all--of a season pursuant to non-compliant regulations, without incurring any consequences at all.

For an example of how that might work, consider New York’s summer flounder rules in 2004.  At the time, neighboring New Jersey was allocated nearly 40% of all recreational summer flounder landings; New York’s allocation was less than half that amount, even though boats from the two states exploited the same stock of fish and sometimes fished right next to one another.  As a result, the ASMFC’s then-existing management plan forced New York’s regulations to be far more restrictive than those of its neighboring states.

In 2004, the forced disparity between states’ regulations convinced New York to go out of compliance with the ASMFC’s summer flounder management plan.  The process provided in the Atlantic Coastal Fisheries Cooperative Management Act played out, the Secretary of Commerce ultimately found New York out of compliance, and imposed a moratorium beginning—if I remember correctly—at some point in August.  So on July 30, 2004, New York adopted new regulations that complied with the management plan.

By going out of compliance, New York allowed its anglers to fish throughout May, June, and July under more liberal rules, without suffering any consequences at all.

More recently, Virginia’s legislature refused to comply with the ASMFC’s menhaden management plan.  As a result, Virginia was out of compliance for about two years but, like New York, escaped scot-free.

In that case, the issue was the amount of menhaden that Virginia’s industrial menhaden fleet, serving the so-called “reduction fishery,” could remove from the Chesapeake Bay.  

The conflict began in 2017, after the ASMFC’s Atlantic Menhaden Management Board voted to reduce the cap on the reduction fleet’s landings in the Chesapeake from 87,216 to 51,000 metric tons.  At the time, Virginia regulators had no authority to manage the menhaden fishery; such management authority was vested solely in the state legislature (a situation which has since changed), and the legislature steadfastly refused to adopt the 51,000 metric ton cap.

At that point, Virginia was out of compliance, but the ASMFC took no immediate action, as the reduction fleet’s landings had been less than 51,000 metric tons in recent years.  A non-compliance motion made during the 2018 season was indefinitely postponed.  But in September 2019, Omega Protein, the only participant in the state's reduction fishery, announced that it had already landed about 65,000 metric tons of menhaden within the Bay, exceeding the new cap on landings.

Virginia was found to be out of compliance at the ASMFC’s fall meeting.  The Secretary of Commerce ultimately agreed, and imposed a moratorium that would become effective before the menhaden season began the following spring. 

In the meantime, the Virginia legislature took action that allowed Virginia to come back into compliance, and rendered the moratorium decision moot.  However, Omega Protein still managed to get away with exceeding the menhaden cap, and suffered no penalty for landing the additional 14,000 metric tons.

And then there's the State of New Jersey.

In 2017, New Jersey adopted summer flounder regulations that not only failed to comply with the management plan, but were so far from compliance that not a single member of the Summer Flounder, Scup, and Black Sea Bass Management Board was even willing to second New Jersey’s motion for discussion purposes.  The state was duly found out of compliance by both the Management Board and the Policy Board, and such finding forwarded on to the Secretary of Commerce.

There was no question that the state was out of compliance with the management plan; however, at the time, there were close political ties between then-Governor Chris Christie and the new Trump administration, and the state gambled that such ties would lead to Wilbur Ross, the Secretary of Commerce, finding that the New Jersey rules were good enough to conserve the summer flounder resource, and that compliance was thus not “necessary for the conservation of the fishery.”

And that’s just what happened.  Without even consulting the experts at the ASMFC, at the National Marine Fisheries Service’s Greater Atlantic Fisheries Regional Office, or at NMFS’ Northeast Fisheries Science Center, the Secretary somehow determined that New Jersey’s rules were OK.

Even if the Secretary’s decision had gone the other way, there was no reason not to gamble, because the worst that might have happened was that the state had to adopt new rules mid-season, after enjoying more relaxed regulations for a while.

Which is why there is real concern that New Jersey may bethinking about going out of compliance with the ASMFC’s recent decision toadopt emergency measures to protect the striped bass fishery.  

While New Jersey no longer has a sympathetic ear sitting atop the Department of Commerce, it does have a long history of seeking self-serving exceptions to the striped bass management measures adopted by the ASMFC.  And it has nothing to lose by going out of compliance right now, fishing under its old rules (which, it should be noted, already include a 28- to 38-inch slot limit, rather than the 28- to 35-inch slot in the management plan) for most of the season, and only coming into compliance when and if the threat of a moratorium looms.

Yes, it would be acting in bad faith if it did so.  But when you talk about New Jersey and fisheries management in the same breath, bad faith is assumed.

The ASMFC should probably come up with a way to discourage such actions.  So long as a state can go out of compliance, at least for a while, and suffer no consequences, bad faith is likely to prevail.  What the ASMFC needs is a means to impose real consequences for a state’s non-compliance decision.

The most logical way to do that would be to require some sort of payback, which would strip any benefits from a failed non-compliance bid.  

That is easy to do in commercial fisheries; for example, when Virginia exceeded the Chesapeake Bay menhaden reduction cap by 14,000 metric tons in 2019, in defiance of the ASMFC’s management plan, and was subsequently found out of compliance, it would have been easy to reduce the 2020 Bay cap from 51,000 to 37,000 metric tons—IF the management plan allowed for such action.  

Unfortunately, the menhaden management plan doesn't call for such paybacks.

Recreational fisheries are a little tougher to deal with, for without a hard quota associated with the management measure, it is difficult to say just how many fish a state might be required to pay back.  

In a perfect world, one might argue that the payback should encompass all landings of the relevant species which occur between the compliance deadline and the date on which the state finally adopted ASMFC-approved measures, effectively making the moratorium retroactive to the first act of non-compliance.

Unfortunately, while such action would certainly deter states from going out of compliance, it is not permitted by current law.  The Atlantic Coastal Fisheries Cooperative Management Act states that the effective date of any moratorium

“shall be any date within 6 months after declaration of the moratorium [emphasis added],”

which, absent an amendment to the Act, takes the possibility of any retroactive application of a moratorium decision off the table.

Other approaches remain available.

A state that fails to comply with a management plan would presumably land more fish than it would have if it complied.  As an example of how that would work, let's say that State X landed 100,000 fish in Year One, and a subsequent change to the management plan would have reduced that amount by 25%, if State X went out of compliance and caught 900,000 fish in Year Two, it should have to pay back 150,000 fish (900,000 minus the 750,000 it would have caught had it complied) in Year Three.

Folks who follow fisheries management will immediately argue that such a formula is far too simplistic, as there is uncertainty surrounding both the Year One and Year Two landings estimates, and also because it is almost certain that other factors, such as fish availability and angling effort, differed somewhat between the two years.  

Even though such objections are valid, the intention here is not to determine the precise overage, but to provide some basis for a payback, in orter to deter states from gaming the non-compliance process.  Requiring payback at a higher level—say, 125%, or even 150%, of any calculated overage—would undoubtedly prove even more effective.

Some sort of deterrent is certainly needed, even though any effort to impose one would undoubtedly meet with resistance.  A payback of excess landings could probably be included in an amendment to a fishery management plan.  Anything else would require a statutory amendment, and thus be far more difficult to put in place.

But resistance can be overcome, and “difficult” does not mean “impossible.”

In an ideal world, every state would be willing to cooperate in order to achieve a common goal. 

In the real world, unwilling cooperation, achieved through coercion, will probably always be needed to get the job done.

 

 

 

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