MARINE FISHERIES CHALLENGES OF THE NEW YEAR

As I noted last Sunday, 2023 was a disappointing year for conservation-oriented marine fisheries management.  While we can’t know everything that 2024 will bring, some themes are already beginning to emerge.  Some will undoubtedly fizzle out, while some unexpected issues will likely move to the forefront. 

Given that this is an election year, with the presidency, the House, and one-third of the Senate—including control of the latter two bodies—to be decided, we probably can’t expect a lot of fisheries matters to be decided by a Congress that only managed to pass 27 bills in a non-election year, which already low number included fluff such as naming Veterans Administration clinics and commissioning a 250^th Anniversary commemorative coin for the Marine Corps.  Instead, we’re more likely to see a lot of so-called “messaging” bills, where various legislators try to show constituents that they care about certain issues, while knowing that any legislation introduced is likely to die without ever being seriously considered—although it’s never completely impossible that something meaningful could be passed.

Most of the meaningful action is likely to take place at the state, regional, and federal agency levels, where some issues have already gained some momentum.

Striped bass:  Addendum II and beyond

Later this month, the Atlantic States Marine Fisheries Commission will decide on which provisions to include in the final version of Addendum II to Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.  Addendum II is intended to be an interim measure, to keep fishing mortality at tolerable levels until a stock assessment update is released in October, which can form the basis for additional management measures.

Addendum II, standing alone, is unlikely to rebuild the stock by 2029, the deadline set by the rebuilding plan; a presentation made at the October meeting of ASMFC’s Atlantic Striped Bass Management Board estimated that it had between a 33% and a 51% chance of achieving that goal, although there was very substantial uncertainty surrounding such estimate.  However, Addendum II will hopefully include a provision that will allow the Management Board to respond to upcoming stock assessments and updates, and take whatever actions it deems necessary to achieve timely rebuilding, without going through the time-consuming process of taking such proposals out to public hearing, etc., if the assessments indicate that such actions are needed to make rebuilding probable.

Unfortunately, because Addendum II won’t be approved until this month—the original plan was to adopt it in October, but that adoption was delayed—there is a very good chance that some of its provisions won’t impact the 2024 season, rendering the Addendum that much less effective.

But perhaps the biggest question for striped bass in 2024 is what happens after the stock assessment update is released.

Hopefully, the final version of Addendum II will give the Management Board the authority to take immediate action in response to the assessment update if it advises that the chances of rebuilding by 2029 are less than 50%.  Assuming that occurs, there are a few possible outcomes:

1)     The assessment update reveals that the chances of timely rebuilding are significantly less than  50%, leading the Management Board to adopt additional management measures in order to meet the rebuilding deadline.  On the commercial side, such measures are likely to be just a further reduction in quota although, should the obstacle to timely rebuilding be excessive recreational landings, it isn’t impossible—although I think that it’s unlikely—that the Management Board will require the recreational sector to shoulder the entire burden.  On the recreational side, anglers have already gone to a 1-fish limit and a 28- to 31-inch slot, so as a practical matter, bag limits are already off the table, and a more restrictive size limit will probably be difficult to achieve (although there may be some sentiment in favor of going to a smaller slot limit, say—just to throw out numbers for purposes of example, and not to suggest they might be seriously considered, perhaps something like 22 to 26 inches—on the theory that because of recent poor spawning success, there will be few legal fish caught, and even fewer landed), so imposing closed seasons will be the most likely management option.  Such seasons could either be no-take, which would allow catch-and-release fishing, or no-target, which would theoretically avoid release mortality, but would be impossible to enforce effectively, as anglers could always claim that they were targeting bluefish, weakfish, false albacore or just about anything else if questioned by law enforcement.  Some Management Board members, with strong ties to the for-hire fishery, may nonetheless argue for no-target seasons, arguing that if the catch-and-keep anglers are barred from the fishery, the catch-and-release anglers ought to be too, but at this point, the difficulties of enforcing no-target closures should prevent the Management Board, although perhaps not some states, from adopting them.

2)     The assessment update reveals that the stock has at least a 50% chance of rebuilding.  Although this might seem an unlikely possibility, the ASMFC’s Atlantic Striped Bass Technical Committee did find that, at least in part because of the emergency regulations adopted last May, recreational striped bass landings were successfully reduced to something close to 2021 levels for the first eight months of 2023.  While it’s not clear that such reduction extended through the fall run—reports coming out of New York and New Jersey late in the season suggest that landings might have been high toward the end of the year—it is at least possible that landings will be low enough to allow a 50% probability of successful rebuilding.  We need only remember that the 2022 stock assessment found nearly an 80% chance of rebuilding if fishing mortality remained at the 2021 level to realize that this is not an impossible scenario.  However, should it prove to be the case, managers will have to worry that another unexpected spike in fishing mortality could again make recovery unlikely.

3)     The assessment update reveals that the stock has less than a 50% probability of rebuilding, but the Management Board declines to take action to rebuild by 2029.  We need to remember that even if the Management Board has the authority to adopt needed rebuilding measures pursuant to an assessment update, it is not legally bound to do so.  It isn’t difficult to see the Management Board deciding not to act, particularly in two very different scenarios.  First, it is possible that the assessment update finds that, under current regulations, the stock has something like a 48% probability of rebuilding by 2029.  In such case, there is a very good chance that, instead of taking action immediately, the Management Board will decide that the difference between 48% and 50% isn’t great enough to justify initiating a new addendum, and instead waits until the 2026 update to decide whether action is needed.  The other possibility is that the assessment update reveals that stock is in poorer condition than previously believed, and that very restrictive measures will be needed to meet the 2029 deadline.  In such case, the Management Board might decide that 2029 is no longer a realistic deadline, and that rebuilding could be extended out another few years, perhaps with additional rebuilding measures to make such rebuilding, by the later date, more likely.  Since the Management Board lacks the authority to unilaterally shift the rebuilding deadline, such decision would have to be made pursuant to a new addendum that went through the public hearing process, and would not impact the fishery until 2026.

We won’t know which of those outcomes will actually occur until next fall.  However, whatever the Management Board decides to do, it will only be addressing rebuilding, which is just one, and perhaps the lesser, problem impacting the striped bass stock.

Striped bass spawning has been well below average in both the Maryland and Virginia portions of the Chesapeake Bay, as well as in the Delaware River.  Only the Hudson River has experienced relatively good spawning success, and even there, juvenile abundance has been below average for three out of the last five years, with 2023 juvenile abundance the lowest since 1985.  Unless that turns around, and spawning returns to more typical levels, the striped bass stock is facing serious trouble, regardless of managers’ efforts to rebuild the stock.  The Management Board will probably have the Maryland, and very possibly the Virginia, young-of-the-year figures for 2024 before its October meeting. 

If the Maryland juvenile abundance index is significantly below average again in 2024—say, less than half of the long-term average—with the Management Board take preemptive action, and initiate an addendum to conserve the existing spawning stock, in order to reduce the odds of a future stock collapse?  Or will it merely focus on rebuilding, and address poor recruitment, if it continues, at some later date?

The answer to that question will tell us a lot about the health of the stock through the 2030s.

Mode splits, a/k/a “sector separation”

In most cases, all anglers, or at least all anglers in a particular state, are managed alike.  However, sometimes managers decide that, for whatever reason, one group of anglers should be treated differently from others. 

A few years ago, the states bordering the Gulf of Mexico adopted much more liberal red snapper regulations than those prevailing in federal waters, allowing anglers to kill more state-waters fish, forcing federal fisheries managers to compensate by adopting ever more restrictive red snapper regulations in federal waters in order to prevent overfishing.  The states’ actions caused real harm to federally-permitted party and charter boats, which were required to abide by federal regulations even when fishing in state waters, and to anglers fishing for such boats, who faced far greater restrictions than those fishing from private vessels.  In order to provide some relief to the for-hire fleet and its customers, the Gulf of Mexico Fishery Management Council separated the recreational and for-hire sectors, allowing the for-hire sector to fish under regulations that provided it more equitable access to the resource, and not at a great disadvantage compared to the private boat fleet.

Now, on the East Coast, and particularly in the mid-Atlantic, we’re seeing the for-hire sector attempting to turn that approach upside-down, and seek special privileges for its customers that aren’t available to any other anglers.

That issue is currently being debated in the ASMFC’s Draft Addendum II to Amendment 7 of its striped bass management plan, which is considering allowing anglers aboard for-hire vessels to keep bass that fall within a 28- to 33-inch slot, while all other anglers are limited to a 28- to 31-inch limit.  While the impact on the bass stock would be extremely small, the policy implications of singling out a particular subset of anglers for privileges not enjoyed by the majority of recreational fishermen are significant.

We see the same sort of special privileges for for-hire anglers being considered in the Mid-Atlantic Fishery Management Council’s “Recreational Reform Initiative,” which is perhaps not surprising given the dearth of recreational fishermen, and the strong for-hire representation, among such council’s members.

Private-boat and shore-based anglers, who represent the lion’s share of recreational trips and thus almost certainly also a substantial majority of the economic contributions made by the recreational fishery, should be ready to either provide input on this issue as the opportunities arise or being relegated to second-class status if the for-hire fleet is awarded special privileges without special, offsetting obligations to remain within its own sector-specific harvest limit.

Recreational fishing data

As noted in last Sunday’s post, NMFS unexpectedly announced last August that it found errors in its Fishing Effort Survey that could result in effort, catch, and landings to be overstated by 30% and 49%.

2024 will see NMFS engage in a year-long study to determine whether such errors exist in all regions and all fisheries, or are limited in their effect.  Once that study is complete, the data will be analyzed and the results incorporated into the recreational fishing data.  That’s going to take a few years.

While we’re not likely to see a resolution this year, we probably will see some angling industry and anglers’ rights organizations capitalize on the issue, using it in their efforts to impeach federal fisheries managers and the federal Marine Recreational Information Program.  We have already seen editorials criticizing MRIP and suggesting state-based remedies appear in newspapers in at least two Gulf Coast states.

Whether that criticism results in additional Gulf states emulating Texas and Louisiana’s decisions not to participate in MRIP, or whether it results in legislation impacting MRIP to be introduced in Congress, remains an open question.  While standalone federal legislation is unlikely to make its way to the President’s desk this year, there is always the risk that a rider will be attached to some “must-pass” bill, likely affecting government spending, that could have a negative impact on the federal data-gathering process that currently underlies both stock assessments and year-to-year regulations.

Loper Bright Enterprises v. Raimondo

It is impractical to manage state and federal fisheries—as well as most other aspects of day-to-day life—legislatively.  Instead, both Congress and state legislatures have passed legislation which delegates various duties to regulatory agencies.

One of the key benefits of such delegation is that the employees of such administrative agencies remain in their posts for many years—sometimes for the entire durations of their careers—and so develop far greater knowledge of particular topics than do elected legislators who must, by the very nature of their jobs, have far more superficial knowledge of a greater variety of subjects, and often serve for a far shorter period.

As a result, when bills delegating legislative authority are passed, they often fail to address many important details relevant to the regulated activity.  In such cases, administrative agencies generally exercise their discretion to fill in the blanks that the legislators created.  Such exercise of discretion was validated by the United States Supreme Court in 1984, when it decided Chevron v. Natural Resources Defense Council and stated that

“an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments…When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice given the gap left open by Congress, that challenge must fail.  In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.  The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.”

Various legal commentors, along with organizations critical of the government’s regulatory authority, have long chafed at that decision, yet it has remained binding law for the past 40 years.  However, the Supreme Court appears ready to reconsider its decision this year in a matter titled Loper Bright Enterprises v. Raimondo.

The plaintiffs in the matter, which will be heard on January 17, seek to either completely overturn Chevron, or at least limit its application by convincing the Court that statutory silence concerning agency powers expressly but narrowly granted elsewhere in the statute does not create an ambiguity that requires court deference to the agency’s exercise of discretion.

The matter began as a challenge to a National Marine Fisheries Service rule requiring the fishing industry to pay for the cost of fisheries observers.  However, it is now focused on the so-called “Chevron doctrine,” and in doing so, could threaten the ability of not only NMFS, but all federal agencies, to issue rules addressing topics not specifically authorized in federal statutes.

Should the plaintiffs prevail in  Loper Bright, which is not unlikely given the makeup of the Court, NMFS may find it very difficult to issue the rules needed to maintain healthy and sustainable fisheries.

Bycatch

The problem of bycatch is not new; the incidental capture and subsequent discarding of non-target species has long been a problem in many commercial and some recreational fisheries.

NMFS has a statutory obligation to minimize bycatch, although its willingness to do so has been questioned over the years.  Bycatch has become particularly problematic in a few fisheries, including the New England multispecies groundfish fishery and some Alaskan fisheries, which see huge factory trawlers producing substantial bycatch, in some cases killing more fish than may be legally harvested in directed fisheries for the same species.

Efforts to rein in bycatch have been made in the past, and a recent effort to do so in Alaskan waters has been gaining momentum.  NMFS recently placed more stringent halibut bycatch restrictions on the Alaskan groundfish fleet; as a result, it has been sued by The Groundfish Forum, a trade association representing the trawler fleet.  The decision in that matter could have a meaningful impact on NMFS’ ability to adopt measures intended to reduce bycatch levels.

In that regard, NMFS has also taken the first steps toward amending its guidelines on National Standard 9, the provision of the Magnuson-Stevens Fishery Conservation and Management Act which requires that bycatch be minimized.  The agency has sought public comment on a notice of proposed rulemaking addressing such guidelines, such comment will now be analyzed, and proposed changes to the guidelines will almost certainly be released later this year.  Legislation addressing the bycatch issue may also be introduced in Congress during the current session.

The public may well get a chance to make additional comments on the bycatch issue later this year.

Other issues

While the above are the issues likely to have the greatest impact on marine fisheries, a number of other issues will have local impact.  Stock assessments for both the northern (that is, north of Cape Hatteras) stock of black sea bass and the Gulf of Mexico stock of red snapper will be released this year; as both fisheries have fueled substantial management disputes in recent years, the results of such stock assessments, when they’re released, will likely lead to additional controversy.  Legal challenges to NMFS and to state regulatory actions, unrelated to the Looper Bright matter, will continue.  Just this week, five Maine lobstermen sued the Maine Department of Marine Resources, challenging a rule that requires them to install tracking devices on their boats in order to better understand fishing patterns that might threaten endangered right whales, claiming that such devices create an unconstitutional violation of their right to privacy under the Fourth and Fourteenth amendments to the U.S. Constitution.  Louisiana red drum regulations remain in flux, and efforts to relax red snapper regulations will continue in the South Atlantic.  On the West Coast, the plight of threatened and endangered salmon runs will continue to cause disputes over dam removal and the impacts of fish hatcheries on native fish.

I’ve probably failed to mention more pending issues than I have listed, and we can never be sure what new things will be crop up.  The one thing that we can be sure of is that 2024 will be a busy year, when both the threats to fish stocks, and opportunities to conserve them, will keep everyone busy through the end of the year.