Thursday, December 28, 2023



The ocean is warming, and fish are taking notice.  Instead of continuing to swim inthe latitudes where their ancestors have lived for the past few thousand years,many species are pulling up stakes and following the warmer waters poleward.

Thus, in recent years here on Long Island, dolphin have gone from a target of opportunity caught while chumming for sharks or trolling for tuna to a fish abundant enough to support directed trips.  Cobia are also becoming more and more common, to the point where they, too, are supporting directed trips, as well as bumbling into baits set out for other fish; although most cobia are caught inshore, I even had one wolf down a mackerel that was drifting in my shark slick last summer, a fish so intent on eating that it ignored an #18/0 hook and #14 wire.

Even the sharks themselves are getting more interesting.  Blacktip and spinner sharks, which were once rarely seen north of Delaware Bay, are now ripping through schools of menhaden within sight of Long Island’s coast, while the occasional bull shark is now being reported off Long Island’s beaches.

Less exotic species, such as black sea bass and summer flounder, have been moving northward as well.  That movement has caused some real problems, as fisheries managers have been slow to respond to stocks shifting north; both recreational regulations and commercial quotas often still favor more southern states, where the fish used to be, and frustrate northern fishermen, who often see fish teeming right outside their ports, but are not allowed to fully exploit such nearby abundance—even as the stocks of fish they used to depend on, such as winter flounder and cod, are collapsing, and the few survivors disappearing from the southern extent of their range.

Fisheries managers refer to such movements as “shifting stocks,” and it has proven to be a very difficult issue to address.

Part of the problem is just human nature.  Allocations, whether between sectors or between states, tend to rank among the most difficult fisheries issues to resolve, because people who may currently harvest the largest share of the catch—even if they have to sail 500 miles to do so—aren't very willing to cede quota to states located nearer productive waters. 

Congress has tried to intervene.  The Sustaining America’s Fisheries For the Future Act of 2022, introduced by representative Jared Huffman (D-CA) in the 117th Congress,  contained a section that addressed the shifting stocks problem.  However, such section would merely have allowed the Secretary of Commerce to determine whether

“a substantial portion of a fishery is located in the geographical authority of more than one [regional fishery management] Council.”

If that proved to the case, the bill would have allowed the Secretary to either designate one of the affected regional fishery management councils to draft the management plan for such fishery, or declare that such management plan with be developed jointly, by multiple councils.

While even that small step forward might have improved the current management of species such as summer flounder, scup, and black sea bass, which are important recreational and commercial species in much of New England, but are managed by the Mid-Atlantic Fishery Management Council, with only minimal input from New England fishermen, the bill did not provide any guidelines for how the regional fishery management councils ought to deal with the issue of shifting stocks.

Perhaps worse, it required a majority of council members on each council contributing to a joint plan to agree to the plan’s terms, which means that the deadlock that currently affects allocation changes would be allowed to continue unabated.

At this point, any discussion of the bill is only hypothetical, as it was not passed by the House of Representatives during the 117th Congress, and has not, to date, been reintroduced, but it again demonstrates why the shifting stocks issue is so difficult to address.

Some aggrieved parties have turned to the courts for assistance but, like Congress, the courts have failed to provide any relief.  The most recent court decision addressing the shifting stocks issue was New York v. Raimondo, which was decided by the United States Court of Appeals for the 2nd Circuit on October 12, 2023.

In a complaint filed on January 13, 2021, the State of New York alleged, among other things, that

“The summer flounder fishery has geographically shifted over the intervening three decades [since summer flounder allocations were set in 1993], with the center of the fishery moving dramatically northeast to the waters off Long Island—yet under the 1993 Allocation Rule, New York continued to receive only 7.65% of the coastwide quotaish in  each year, while Virginia and North Carolina together received nearly 50%.  The result has been devastating to New York fishermen, who frequently fish off Long Island within sight of boats that steam to and from southern ports and are permitted to catch and land far more summer flounder due to less restrictive limits for those states.

“On December 14, 2020, Commerce replaced the 1993 Allocation Rule…The 2020 Allocation Rule keeps in place the 1993 formula except for any surplus fish in years of abundance, which are distributed evenly among active states in the fishery…resulting in only marginal quota increases for New York in those years.  The Rule continues to ignore substantial changes in the fishery.  [numbering omitted]”

New York further alleged that the summer flounder allocation violated various provisions of the Magnuson-Stevens Fishery Conservation and Management Act, including National Standard 2, which requires management measures to be based on the best scientific information available; National Standard 4, which requires all allocations to be “fair and equable” and “promote conservation;” National Standard 5, which states that management measures should, “where practicable, consider efficiency in the utilization if fishery resources;” and National Standard 7, which requires that management measures “where practicable, minimize costs and avoid unnecessary duplication.”

In a trial brief which expanded on the allegations made in its complaint, New York noted that

“According to Commerce data, 87% of 2016-2019 commercial landings were caught in northern mid-Atlantic and southern New England waters proximate to Long Island, while only 10% were caught off the North Carolina and Virginia coast, even though Commerce allocates around half of all landings to those southern states.”

Summer flounder were clearly a shifting stock, and the shift was certainly changing where the fishery was being prosecuted.

The Commerce Department’s trial brief contested New York’s allegations, and argued that no one national standard should dictate the outcome of the case.  Instead, Commerce argued that the National Marine Fisheries Service properly balanced the sometimes conflicting goals of the national standards, along with the conflicting considerations of the states, saying that

“NMFS carefully considered the precise data New York points to regarding the location of the summer flounder fishery and determined that it must be weighed against preexisting infrastructure and community reliance, which was in turn based upon historical landings data and the resulting 1993 Allocation formula.

“New York argues that recent fishery data ‘are more current, relevant, and reliable than the 1980s data.  But this argument conflates two sets of data measuring entirely different phenomena: fishery location versus landings.  NMFS did not disregard a superior version of the same data, but rather made a choice between prioritizing historical landings and current fishery location data in deciding among the management approach here…  [references deleted]”

In the end, the trial court accepted the Commerce Department’s argument, finding that

“the 2020 Allocation Rule is not arbitrary and capricious.  Indeed, the Court finds that NMFS carefully considered all the appropriate factors, explicitly considering applying all 10 MSA [national] standards and evaluating them against the proposed alternatives.”

On October 12, the 2nd Circuit confirmed the trial court’s decision, writing

“By including ten [national] standards, the MSA contemplates that other fishery management considerations—here, the inertia of fishing industries established over decades—can outweigh equitability concerns that flow from the transitory movement of the summer flounder…

“The NMFS adopted a rule that sought to ‘balance preservation of historical state access and infrastructure at recent quota levels, with the intent to provide equitability among states when the stock and quota are at higher levels.  We cannot say that this adjustment to the previous rule—the result of balancing ten different national standards—lacked a rational basis articulated in the administrative record.  We therefore conclude the NMFS did not violate the MSA or the [Administrative Procedures Act] when it set summer flounder quotas through the 2020 Allocation Rule.  [references omitted]”

While that decision was probably good law—administrative actions are supposed to be difficult to overturn, with courts only stepping in where there is clearly no rational basis for the action, and not just because the court would have chosen a different course—it probably sounded the death knell for significant council actions to address shifting stocks.

Quite simply, as I once noted in a different post in a different blog on another website, when it comes to allocations, Billie Holiday probably said it all when she belted out “God Bless the Child,”

“Them that’s got shall get/Them that’s not shall lose…”

Armed with the 2nd Circuit’s decision, states that have long harvested the lion’s share of a fishery have no reason to cede any portion of their quotas to other states, even if that fishery has shifted far from a state’s waters.  So long as such states control a majority of votes on a regional fishery management council—which may not always be the case—we can depend on them to frustrate any efforts to let quotas follow the fish into new waters.

Absent congressional intervention, which is badly needed, we can imagine some time far in the future, perhaps in a day when today’s fishing vessels have all been replaced with artificial intelligence-guided drones, a warming ocean has pushed the summer flounder fishery to the edge of the Canadian border, and only one thing remains of the fishery we know today: quotas will still be based what landings were when Ronald Reagan sat in the White House, quotas that North Carolina and Virginia will still, most certainly, defend.


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