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