AN IMPORTANT NEW MILESTONE FOR MAGNUSON-STEVENS

 

Just two months ago, the National Marine Fisheries Service announced that, thanks to the provisions of the Magnuson-Stevens Fishery Conservation and Management Act, it has rebuilt the Snohomish run of coho salmon, the 50^th once-overfished stock to be fully restored by the agency since it rebuilt Atlantic sea scallops in 2000.

But just saying that NMFS has rebuilt 50 once-overfished stocks doesn’t tell the whole story.

In 2000, 92 fish stocks were overfished.  Today, that number has fallen to 48 (not 42, as one might hope given the state of stocks in 2000 and the 50 since rebuilt, but the sad truth is that a few stocks go the other way and decline instead of improve, often due to environmental conditions that NMFS can’t control).  NMFS' successful rebuilding—typically defined as restoring the spawning stock biomass to a level that can produce the maximum sustainable yield from the resource—of about half the stocks that were overfished less than 25 years ago is a meaningful accomplishment.

The list of rebuilt species includes some that presented significant challenges to fishery managers, including various species of Pacific rockfish, which are generally long-lived and exhibit irregular spawning success.  Such a life history can make a stock more difficult to rebuild, yet in late November, NMFS announced that many areas off the Pacific coast that were closed for 20 years have been reopened to fishermen, with almost all species of rockfish now completely rebuilt.

Unfortunately, some of the stocks that have been declared rebuilt have not been restored to former levels of abundance.  Probably the best example of that is Southern New England/Mid-Atlantic winter flounder, which was declared rebuilt in 2022, not because the spawning stock biomass had finally increased to its former target of 12,322 metric tons, but because biologists sharply decreased the spawning stock biomass target to a mere 3,314 metric tons, due to the very low level of recruitment that the stock has exhibited for the past decade or more.

Here in the mid-Atlantic region, three of the most important commercial and recreational species, summer flounder, scup, and black sea bass, were once overfished, but have since been fully rebuilt.  Although summer flounder biomass has slipped significantly below its target level, both scup and black sea bass are at very high levels of abundance, well above their spawning stock biomass targets.

No other fishery management program can boast a similar level of success.

The Atlantic States Marine Fisheries Commission was empowered to draft coastwide fishery management plans in 1993, when the Atlantic Coastal Fisheries Cooperative Management Act became law.  Since then, it has successfully rebuilt the Atlantic striped bass stock—although it subsequently allowed that stock to become overfished once again—and is on the threshold of fully rebuilding the Long Island Sound and DelMarVa tautog stocks.  While that marks some progress, it doesn’t come close to the level of rebuilding attributable to Magnuson-Stevens.

For fisheries managed solely by individual states, success is even harder to come by.  Perhaps the best—or, given how things have played out, the worst—example of this is Louisiana’s management of its speckled trout (a/k/a spotted seatrout) resource, which was allowed to languish for years; when the state fishery managers finally put together a plan to rebuild the overfished speckled trout population, their efforts were frustrated by politicians in the state legislature, which heeded special interests opposed to needed conservation measures.

It’s difficult to think of a recent—and by recent, I mean any time in the current century—when state fishery managers successfully rebuilt a depleted species.  Instead, state management has generally been characterized by political interests dominating the debate and, in many cases, frustrating the best efforts of professional fishery managers.

Thus, it’s a little strange that federal fishery managers, following the dictates of the Magnsuon-Stevens Fishery Conservation and Management Act, are not only the most successful fishery managers, but also the most criticized.  Despite their many successes, they often face assertions that the federal fishery management system is “broken.”

Such claims generally arise from within the recreational fishing community, from organizations which object to the discipline imposed by Magnuson-Stevens, which requires fishery management measures to prevent overfishing requires rebuilding within a time certain, typically no longer than 10 years; and not only requires annual catch limits for virtually all managed species, but also requires NMFS to hold fishermen accountable when such limits are exceeded.

It's probably human nature, but as much as people claim to want others to take responsibility for their actions, the same people don’t really want to be held accountable when their own actions have negative impacts.  Recreational fishermen are no exception to that rule; thus, they often call for additional restrictions on commercial fisheries, but rail at recreational restrictions mandated by Magnuson-Stevens, and clamor for more “flexibility” in federal fisheries law.

In some cases, efforts to weaken the discipline imposed by Magnuson-Stevens have gained ground.  Probably the most successful effort to date occurred at the Mid-Atlantic Fishery Management Council which, in June 2022, adopted a misnamed “Harvest Control Rule” using what was deemed a “Percent Change Approach” that effectively decoupled recreational regulation from the statutorily mandated annual catch limits.

The Natural Resources Defense Council has initiated a court challenge to such approach to managing important Mid-Atlantic fisheries, including summer flounder, scup, black sea bass and, once the stock is rebuilt, bluefish.  The trial court will probably decide the question sometime during the first half of 2024. 

In the meantime, the Council seems to be following the principle that, after you decide to do the wrong thing once, it becomes easier to do the wrong thing again.  By adopting the Harvest Control Rule/Percent Change Approach, the Mid-Atlantic Council sought to avoid the discipline imposed by Magnuson-Stevens.  Now, the same Council seems to be trying to escape the discipline imposed by the Harvest Control Rule itself.

At its recently-concluded December meeting, the Council decided to maintain status quo regulations for black sea bass, even though, under the existing circumstances of a very high spawning stock biomass and a calculation that 2024 recreational landings are expected to exceed the recreational harvest limit if regulations remain unchanged, the Harvest Control Rule/Percent Change Approach called for a 10% reduction in landings.

The Council ultimately approved status quo management measures, despite the fact that nothingin federal fisheries regulations, which adopted the Percent Change Approach formanaging mid-Atlantic black sea bass, authorized a status quo option under theprevailing circumstances.  Instead, the Council chose to step outside of the regulatory framework and adopt an unauthorized option.

While its logic for doing so was not unreasonable, the legality of doing so was, at best, questionable, although the action will almost certainly not face a court challenge.  The Council just took it upon itself to read a sort of “flexibility” into the rules that did not exist in the plain language of such regulations.

The genius of Magnuson-Stevens, and the reason behind its demonstrated success, is that it places very strict sidebars around the discretion that may be exercised by members of the several regional fishery management councils.  Just about everyone sitting on such councils, other than, perhaps, the state fisheries managers, has an economic interest of some sort in the issues that they’re deciding.  Under most circumstances, such council members should be expected to vote in a way that benefits their own personal and sector interests.

And on other management bodies, they typically do.

But because Magnuson-Stevens creates legally enforceable requirements that stocks be rebuilt within a time certain, that overfishing be prevented, that annual catch limits be established, and that fishermen be held accountable for exceeding those limits, it creates an environment where even persons with financial or other interests in a managed fishery must largely put those interests aside and instead do what’s right for the fisheries resource itself.

By doing so, they benefit themselves in the end.

Creating “flexibility”—what some might call “loopholes”—that allow fishermen to escape the discipline imposed by the law might seem sensible in the short term, as it will allow greater exploitation of currently abundant fish stocks.  But in the long term, the same loss of discipline will sap regional fishery management councils’ will to make hard decisions to avoid overfishing or begin the rebuilding of declining and depleted fish stocks.

By rebuilding 50 once-overfished stocks in less than 25 years, Magnuson-Stevens has demonstrated its worth, and the worth of its disciplined management system.  With 48 stocks still overfished, and others still on the path toward rebuilding, it would be foolish to hamstring the law, and abandon its discipline now.