"FAIRNESS" IN FISHERIES MANAGEMENT

 

Since we were very young, we—or at least those of us raised in functional households—were always told to “play fair.”

It was a sort of amorphous instruction, that covered a lot of different territory.  It went far beyond just not cheating at games, to touch on many other aspects of day-to-day life, such as not ganging up on someone, either physically or socially, not taking advantage of another’s disability, sharing one’s good fortune, etc.

So most of us grow up with some concept of fairness.

It’s interesting to note that such concept of “fairness” is shared with other species.  Experiments with brown capuchin monkeys suggest that such monkeys will demonstrate marked objections to seemingly unfair outcomes, such as receiving inferior rewards compared to those given to other monkeys engaged in similar conduct.  Other primates, rats, dogs, and even crows have demonstrated similar behavior.

Still, the fact that “fairness” is a broadly shared concept doesn’t mean that it we all view the same things as “fair.”  Watch two children split up a cupcake.  It’s pretty likely that, if the pastry is cut in a lopsided way, with one piece noticeably smaller than the other, the child receiving that piece will start yelling something like “That’s not fair!  He got the big half!”

We’ve all seen that happen, and probably said something similar back in our younger days.

But, unless the child who received the larger piece is atypically empathetic, or raised in a very caring and principled home—and, perhaps, not even then—it’s pretty likely that such child will not be the first one to complain about the division being unfair.

And that sort of thing pretty quickly trickles down into fisheries issues.

The Magnuson-Stevens Fishery Conservation and Management Act uses the word “fair,” as well as derivatives such as “fairly” and “unfair,” a total of 22 times, and uses the closely related word “equitable,” and its derivatives, 15 times more.  But not everyone agrees on what those words mean.

The disagreements emerge in different contexts, but there is probably nothing in the fisheries arena that generates more claims of unfairness than allocation decisions.  National standard 4, included in Magnuson-Stevens, states that

“Conservation and management measures shall not discriminate against residents of different States.  If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocations shall be (A) fair and equitable to all such fishermen, (B) reasonably calculated to promote conservation, and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.”

Despite the letter of the law, there can be real disagreements about what a “fair and equitable” allocation of fishing privileges looks like.  In that regard, it would seem that the simplest case to make is that allocating all of the harvest of a particular species to one sector, and denying the other sector any share of the landings—for example, so-called “gamefish” laws that outlaw commercial harvest—is clearly unfair, and unable to survive a national standard 4 challenge.

But that’s not the case.

After the National Marine Fisheries Service adopted a billfish management plan in the late 1980s, which prohibited the sale of Atlantic marlin and spearfish, and even prohibited their possession by any vessel also possessing gill nets or longline gear in U.S. waters, representatives of the commercial fishing industry sued.  The court ultimately upheld the management measure, saying that it did not violate national standard 4, because gill net and longline boats were still permitted to possess and sell billfish outside of United States waters, because the no sale requirements applied to recreational fishermen as well (a dubious argument, given that once someone puts a fish into the stream of commerce, that person is, by definition, engaged in commercial fishing), and because size limits imposed by NMFS reduced recreational billfish landings.  Thus, the management measure impacted both sectors, even if some of the provisions did have a greater impact on the commercial fleet.

The commercial sector probably didn’t consider the court decision any more “fair” than the regulations themselves, but it remains the law of the land.

The fact that a regulation may have a disparate impact on different sectors does not, by itself, create a national standard 4 issue.  In Alaska Factory Trawler Association v. Baldridge, trawlers and pot fishermen challenged a regulation that allocated most of the Gulf of Alaska sablefish catch to the longline fishery, and would eventually completely phase out the use of fish pots in certain regions.  The court found against the plaintiffs, deciding that the management measure represented a reasonable way to address gear conflicts, that the reduced trawl quota reflected Advisory Panel comments, and so had a rational basis, and that social and economic benefits, and so the overall benefit to the nation, would accrue from the action, even though it did, to some degree discriminate against the trawl and pot sectors.

Once again, it’s hard to believe that the trawler and pot fishermen found the court’s decision fair.  However, it still stands as an important legal precedent.

Yet there can still be times when courts find that real, actionable discrimination exists.  In Guindon v. Pritzker, a court found that a reallocation of red snapper that favored the recreational sector was unfair, after NMFS adopted a Gulf of Mexico Fishery Management Council decision to base allocation on years when the commercial fishery was bound by a hard-poundage quota, and so could not increase its landings, while the recreational sector was only governed by a “soft” recreational harvest limit which that sector could, and often did, exceed, with few consequences ensuing.  Allowing the recreational sector to benefit from chronically exceeding its harvest limit, while the commercial sector suffered because it remained within its quota, was a step too far for the court, which ruled that the reallocation was unfair, violated national standard 4, and was thus invalid.

Still, despite cases like Guindon v. Pritzker, courts are generally slow to find unfairness in federal management measures.  The East Coast summer flounder fishery is a case in point.

A 2018 benchmark stock assessment observed that

“…summer flounder are shifting northeast over time, and this shift has continued in recent years…the shift northward is evident even in small fish.  Indeed, recruits appear to be shifting northward at a faster rate than spawners, suggesting that they are not merely tracking the expansion of spawners northward.  There are apparent changes in spatial distribution of summer flounder over the past four decades with a general shift northward and eastward.  Spatial expansion is more apparent in the years of greater abundance since about 2000, although it has continued even with the most recent declines in biomass.”

But when we look at the distribution of commercial summer flounder allocation, we find that states’ initial allocations are based on landings during the period 1980-1989, effectively setting states shares’ based on where the fish were four decades ago, before the “general shift northward and eastward,” noted in the stock assessment, began.

As a result, two southern states, Virginia and North Carolina, are allocated almost half of all commercial summer flounder landings, even though boats from those states may have to sail for hundreds of miles to catch any quantities of fish, while states farther north, where the fish are abundant, see much smaller quotas, like the 7.6% held by New York and the 6.8% held by Massachusetts.  The 24.8% of the quota held by the five coastal New England states is significantly less than the 27.6% held solely by the single state of North Carolina, even though there are far more summer flounder swimming off the coast of New England than might be found off the Tar Heel State.

The Mid-Atlantic Fishery Management Council has recently agreed to allocate a few more fish to the northern states if—and only if—the commercial allocation exceeds 9.55 million pounds in any particular year.  However, in the upcoming 2024 season, the commercial quota will not reach that benchmark, so the basic allocation described above will apply.

From that situation, we see two different concepts of “fairness” emerge. 

Fishermen in the northern states believe that it is unfair to manage commercial summer flounder fishermen with quotas based on forty-year-old data, that don’t reflect the current patterns of summer flounder abundance.  At least one state, New York, has unsuccessfully sued NMFS over the issue, while Senator Charles Schumer (D-NY), as recently as 2021, introduced legislation titled the “Fluke Fairness Act,” which included findings that

“The fishery management plan for summer flounder does not account for regional changes in the location of the fluke stock even though the stock has moved further to the north and changes in effort by anglers along the East Coast,”

and

“The States have been locked in a management system based on data collected from 1981 to 1989, thus, the summer flounder stock is not being managed using the best available science and modern fishery management techniques.”

Such findings generally sum up the feelings of fishermen throughout the northern end of the summer flounder’s range, who feel that it is grossly unfair to deny them access to fish sitting right off their ports, simply because, forty years ago, those fish happened to be somewhere else.

The other side of the argument is expressed by fishermen in Virginia and North Carolina, who believe it would be unfair to reduce their states’ summer flounder quotas, simply because the fish have moved north, and their boats have to travel farther to find them.  They see efforts to reallocate commercial allocations as a “quota grab” on the part of northeastern fishermen, and argue that

“people have invested in licenses and businesses related to this fishery.  Changing allocations will affect business models and business plans,”

and also that

“with any allocation, there will be winners and losers…Reallocation will bankrupt people in the south…Managers shouldn’t take what people have and give it to other states.”

To them, fairness requires that allocations take on an almost hereditary nature; once granted to a state, they pass down through the generations of fishermen, unchanged and unchanging.  Whatever happens out on the ocean, with respect to the movements and abundance of fish, quotas must remain immutable.

Perhaps it all comes down to the fisherman’s comment that “with any allocation, there will be winners and losers,” with the winners judging “fairness” through one set of eyes, and the losers through another.  Or, to fall back on an old aphorism, the perceived fairness of a management action all depends on whose ox is being gored.

Thus, we often see commercial fishermen feel that managers unfairly favor the recreational sector, saying that while the commercial sector provides food for people all across the nation, the recreational sector consists largely of well-heeled people merely “playing” with the fish.  At the same time, striped bass anglers have complained that recent actions intended to reduce fishing mortality were unfair, because while the specified reductions were taken from actual recreational landings, commercial reductions were taken from the quota, a fairly meaningless action given that the commercial sector, both overall and in several states, does not come close to landing its entire quota in any event, and might not have to cut back its overall landings at all.

How one conceives "fairness" all depends on where one stands.

Thus, I always get uneasy when I hear people either support or oppose fisheries actions because of their perceived “fairness,” as fairness is an ephemeral concept at best, and one which is frequently reinterpreted, depending on how an action will impact a particular assortment of people.

As coldhearted as it might sound, I always favor decisions that are based solely on data, and not on emotionally fraught concepts like “fairness.”  I view such things from one standpoint only:  Will a particular management measure make it more or less likely that a stock will be maintained at a healthy, sustainable level of abundance in the long term? 

Sometimes, to achieve that goal, someone—whether we define that “someone” as individuals or an entire sector—is going to have to be hurt, and perhaps sacrificed.  It might seem very unfair, but in the end, it could help to avert the greatest inequity of all—denying future generations the opportunity to know and enjoy a healthy, vibrant, and thriving sea.