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.
“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.
“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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