Fishery management is rife with controversy. But if anything in that arena comes close to a
universal truth, accepted by the commercial, recreational, and for-hire
sectors, as well as by managers and the environmental community, it is the
notion that bycatch is bad.
The
Magnuson-Stevens Fishery Conservation and Management Act defines bycatch as
“fish which are harvested in a fishery, but which are not
sold or kept for personal use, and includes economic discards and regulatory
discards. Such term does not include
fish released alive under a recreational catch and release fishery management
program.”
Magnuson-Stevens, in establishing national standards for
fishery conservation and management, states that
“Conservation and management measures shall, to the extent
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be
avoided, minimize the mortality of such bycatch.”
Most people, and particularly anglers, tend to think of
bycatch as a problem caused by commercial fisheries. They think of things like turtles
and marine mammals incidentally killed by miles-long pelagic longlines, cod
unintentionally caught in trawls targeting haddock, pollock, and/or Acadian
redfish, or the
trail of striped bass, accidentally killed and intentionally dumped, floating
in the wake of a dragger seeking other species.
“consistent with his obligations under [Magnuson-Stevens],
approve a red snapper rebuilding plan, considering measures to reduce bycatch
in the shrimp fishery, within the next nine months.”
NMFS
has since recognized the contribution that reducing such bycatch has made to
rebuilding the Gulf red snapper population, although it doesn’t generally acknowledge the
lawsuit. The
Coastal Conservation Association is far less reticent to hail the impacts of
its litigation on the red snapper’s recovery, and it is not hesitant to point it’s
finger at the impacts of commercial bycatch on the red snapper stock.
But what happens when the shoe finds itself on the other
foot?
What happens when recreational bycatch begins to cause
meaningful harm to a commercial fishery?
And in particular, to a commercial red snapper fishery?
We’re starting to see the answer to that question play out
in the South Atlantic, where a group of commercial fishermen are suing the
current Secretary of Commerce, Gina Raimondo, for NMFS’ failure to rein in
bycatch in the recreational red snapper fishery, which failure, the plaintiffs
allege, violates the clear language of Magnuson-Stevens.
The matter is Slash Creek Waterworks, Inc., et al v.
Raimondo. It was filed in the United
States District Court for the District of Columbia on June 16, and challenges a
recently-adopted temporary rule governing the South Atlantic red snapper
fishery, alleging
“The Amendment 43 regulations, in conjunction with the
temporary rule, establish and implement an annual catch limit for red snapper
that is set in terms of landings only—ignoring dead discards, which represent
the overwhelming majority of catch. This
approach fails to limit catch of South Atlantic red snapper, fails to prevent
overfishing, and creates a de facto reallocation of red snapper to the
recreational sector, each of which is contrary to law.”
The underlying facts of the case are difficult to
dispute.
“…Since 2010, general recreational discards have been the
dominant source of fishing mortality.
“…the exploitation rate has remained above [the fishing
mortality threshold] since the late 1970s, with the exception of 2013. Since 2010, the exploitation rate has been
dominated by dead discards, especially from the general recreational fleet.
“…The general recreational fleet has been the dominant source
of removals, for both landings and dead discards. Since 2010, total landings have remained at
or below [the landings level associated with fishing mortality at maximum
sustainable yield], however discards have exceeded [the discard level associated
with fishing mortality at maximum sustainable yield] for most of these years.”
There is thus little reason to doubt that recreational
fishing mortality, and not commercial fishing activities, is the
greatest single obstacle to red snapper rebuilding. There is also
little or no reason to doubt that it is recreational discard mortality, and not
recreational landings, that creates the biggest and most intractable
problem. As noted by the South Atlantic
Fishery Management Council,
“…overfishing [is] primarily driven by the high numbers of
fish in the recreational fishery released throughout the year
that don’t survive. These dead fish
comprise approximately 85% of the allowable removals in the fishery. Due to the high proportion of the removals
being dead discards, reductions in landings alone, even no allowable landings,
will not end the overfishing of Red Snapper.
Therefore, in order to end overfishing, the Council must also reduce
dead discards. [emphasis added]”
It's important to note that such recreational dead discards
accrue “throughout the year,” in fisheries for other species, and not just
during the brief recreational red snapper season. Thus, if the argument successfully made by the
Coastal Conservation Association in Coastal Conservation Association v.
Gutierrez has any lasting merit, NMFS has an obligation to address red snapper bycatch in
other fisheries—in this case, in other recreational fisheries—in
order to discharge its statutory obligation to rebuild red snapper.
NMFS appears to have agreed.
“NOAA Fisheries strongly advocated for [the South Atlantic
Fisheries Management Council] considering time/area bottom fishing closures for
snapper grouper in the ‘short term’ to end overfishing of red snapper. The NOAA Fisheries Southeast Regional
Administrator noted that discard mortality needed to be reduced by 65% to end
overfishing and that bottom fishing closures should be considered as a way ‘to
keep people off the fish’…They specifically discussed options such as depth
limits, seasonal closures, and/or area closures of snapper grouper fishing in
federal waters.”
That the American Sportfishing Association opposed such
regulations isn’t particularly surprising, given its job of promoting
fishing tackle sales and protecting the profits of the fishing tackle
industry. However, it turns out that the
Coastal Conservation Association—the very same association that went to court
in an effort to place additional burdens on the commercial shrimp industry, in
order to promote red snapper rebuilding in the Gulf of Mexico—is opposed to
such measures as well.
I suppose “coastal conservation” doesn’t look so attractive
when the fishery that someone is trying to burden happens to be your own. It is, after all, far more appealing, and far
less troublesome, to conserve someone else’s fish.
“…Off the states of North Carolina, South Carolina, Georgia,
and Florida, a booming red snapper population is threatening to close all
bottom fishing in the region for years.
Red snapper are currently in a rebuilding plan that won’t conclude for
more than two decades, but they are already so numerous that NOAA Fisheries
calculates that just what anglers catch as bycatch is overfishing red snapper…
“What’s driving this dilemma is a requirement that the
Council end overfishing within two years of being notified of the
condition. NOAA Fisheries notified the
Council over a year ago that based on the last stock assessment red snapper
were undergoing overfishing, so the regulatory clock is ticking—loudly. NOAA says a complete ban on directed harvest
will not end the overfishing, so it believes something must be done to
substantially decrease the discards (and discard mortality) to end
overfishing.”
Recreational opposition to the closures was so substantial
that the South Atlantic Council backed off any plans that it might have had to impose time and area restrictions,
thus assuring that overfishing will continue in the South Atlantic red snapper
fishery, and that recreational fishermen will, despite clear language in
Magnuson-Stevens, to remain unaccountable for their overages.
In response, the commercial fishermen sued, making three related
claims.
Their first claim is very simple. Despite Magnuson-Stevens’ clear mandate that
“Conservation and management measures shall
prevent overfishing while achieving, on a continuing basis, the optimum yield
from each fishery for the United States fishing industry, [emphasis added]”
the Council and agency has allowed overfishing to continue, even though use of the word “shall” takes away all Council
discretion; neither the regional fishery management councils nor NMFS have any authority to permit overfishing in a fishery management plan, plan amendment,
or other management measure.
And the term “overfishing” addresses all
fishing mortality, not merely landings.
Magnuson-Stevens defines overfishing as
“a rate or level of fishing mortality that jeopardizes the
capacity of a fishery to produce the maximum sustainable yield on a continuing
basis.”
Magnuson-Stevens also requires that every regional fishery
management council
“develop annual catch limits for each of its managed
fisheries that may not exceed the fishing level recommendations of its
scientific and statistical committee or the peer review process described
[elsewhere in the law].”
“Each Council shall develop [annual catch limits] for each of
its managed fisheries that may not exceed the ‘fishing level recommendations’
of its [scientific and statistical committee] or peer review process
(Magnuson-Stevens Act Section 302(h)((6)).
The SSC recommendation that is most relevant to the ACLs is [acceptable
biological catch], as both ACL and ABC are levels of annual catch.”
“Acceptable biological catch” is defined as
“a level of a stock or stock complex’s annual catch, which is
based on an ABC control rule that accounts for the scientific uncertainty in
the estimate of [the overfishing limit], any other scientific uncertainty, and
the Council’s risk policy,”
while the “overfishing limit” is defined as
“the annual amount of catch that corresponds to the estimate
of [the maximum fishing mortality threshold] applied to a stock
or stock complex’s abundance and is expressed in terms of numbers or weight of
fish. [emphasis added]”
When we apply that statutory and regulatory language to the South Atlantic red snapper fishery, we find that Amendment 43 to
the Fishery Management Plan for the Snapper Grouper Fishery of the South
Atlantic Region doesn’t seem to comply.
Instead of basing the annual catch limit on the annual catch—that
is, both dead discards and landings—the South Atlantic Council based it on
landings alone, ignoring the dead recreational discards that comprise 85% of
all fishing mortality.
The plaintiffs in the commercial fishermen’s lawsuit thus,
not unreasonably, argue that the annual catch limit set in Amendment 43, and in
the recently issued temporary regulation, violates the clear language of
Magnuson-Stevens. It seems somewhat
difficult to disagree.
The plaintiffs' second claim is very similar to the first.
Plaintiffs’ third claim is that, because dead recreational
discards make up such a large percentage of the overall catch—far more than the
71.93% allocated in the management plan, even before recreational landings are taken into
account—both Amendment 43 and the temporary regulation constitute a de facto
reallocation of the red snapper resource, and that such reallocation does not
meet the “fairness” standard established by Magnuson-Stevens.
This claim is a tricky one.
It has been made in challenges to management actions affecting other
species, but a definitive ruling on the “de facto reallocation” theory has not
yet been made. The
relevant NMFS guidelines define an allocation as
“a direct and deliberate distribution of the opportunity to
participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or
lack of management) has incidental allocative effects, but only those measures
that result in direct distributions of fishing privileges will be judged
against the allocation requirements of [National] Standard 4…”
It seems simple for NMFS to successfully argue that, because
it didn’t explicitly increase the 71.93% recreational share of the South
Atlantic red snapper fishery, it did not reallocate the resource. On the other hand, the South Atlantic Council
and the agency both decided that it was acceptable to ignore dead recreational
discards, which constitute 85% of all fishing mortality, and only apply the
established allocation to the other 15% of fishing mortality represented by
recreational and commercial landings.
Could that decision to ignore dead discards constitute a “direct
and deliberate distribution of the opportunity to participate in” the red
snapper fishery? That’s something a
judge must still decide, but it is somewhat difficult to believe that NMFS may
endorse a regional fishery management council’s decision to take actions which
would have a profound impact on a sector’s ability to participate in a fishery,
to the benefit of another sector, and be exempt from any judicial review of the
fairness and equity of such action just because the word “allocation” was never
used.
Hopefully, the District Court down in Washington will finally
provide some clarity on that issue.
In the meantime, the lawsuit brought by the commercial plaintiffs
is likely to cause some real consternation among recreational fishermen, and
recreational advocacy groups, in the southeast, who have long acted as if the
commercial sector was solely responsible for overfishing and overfished
stocks. We can probably expect such
organizations to file amicus curiae (“friend of the court”) briefs in
the matter, seeking to uphold the current management approach.
In time, we'll find out whether the plaintiffs prevail, or
whether the courts will bless NMFS’ and the Council’s decision to ignore dead
recreational discards.
In the meantime, the suit serves as a potent reminder that
harmful bycatch isn’t limited to the commercial sector, and that sometimes,
recreational anglers can, just by fishing, cause meaningful harm.
..
No comments:
Post a Comment