NMFS CONTINUES TO UNDERCUT KEY PROVISIONS OF THE MAGNUSON-STEVENS REAUTHORIZATION ACT OF 2006

 

The Fishery Conservation and Management Act of 1976—the initial iteration of the statute that we now know as the Magnuson-Stevens Fishery Conservation and Management Act--was the United States’ first comprehensive law governing fishing in federal waters.  

Prior to its passage, other laws governed extracting the resources of the outer continental shelf, including marine life, or the harvest of tuna, but Congress had never before passed a bill intended to govern the conservation and management of marine life throughout the nation’s waters, on every coast, off every state and territory, from the point where federal jurisdiction began, three miles offshore (three leagues offshore of Texas and the Gulf Coast of Florida), to the edge of the Exclusive Economic Zone, 200 miles offshore (unless truncated to accommodate the EEZ of an adjacent maritime nation).

The primary motivation for the law’s passage was the decline in many stocks of fish, caused in part by domestic overfishing, but also driven by the fishing activities of large factory trawlers from other nations, which could come within 12 miles of U.S. shores.  Its sponsors hoped to nationalize marine fisheries, pushing the foreign boats 200 miles offshore (unless they were fishing for tuna which, to end the opposition of Pacific Coast blue water tuna seiners, the law did not include in its definition of “fish”) while providing incentives for U.S. fishermen to invest in new, modern vessels and gear.

The law also created the eight regional fishery management councils, and empowered them to be the primary authors of management measures intended to conserve and rebuild fish stocks.  However, the law had no safeguards to keep the fishermen sitting on those regional fishery management councils from adopting whatever management measures they chose, even if they led to overfishing.

As a result, the law’s biggest achievement was arguably shifting from a situation where foreign fishermen were overfishing U.S. fish stocks to one in which U.S. fishermen were overfishing U.S. fish stocks.  It didn’t do much for the fish, which continued to disappear.

Things got bad enough that, twenty years later, even the fishermen who originally took advantage of the 1976 law, bought new boats and gear, and had actively overharvested various stocks for the better part of two decades realized that things had to change before everyone, including the fish, were put out of business.

The result was the Sustainable Fisheries Act of 1996 which, for the first time, imposed legally enforceable standards on the fishery managers at the National Marine Fisheries Service.  Overfishing was not allowed.  Overfished stocks had to be rebuilt within a time certain, and within ten years if that was biologically feasible.  All management decisions had to be based on the best scientific information available.

After a federal appeals court decided, in the matter of Natural Resources Defense Council v. Daley, that federal management measures had to have at least a 50% probability of overfishing, the Sustainable Fish Act became a valuable tool to end overfishing and begin the rebuilding of overfished stocks.

Still, some regional fishery management councils—in particular, the New England Fishery Management Council—became adept at evading both the letter and the spirit of the law, crafting fisheries management measures that, on paper, appeared to meet the Sustainable Fisheries Act’s requirements, but failed to end overfishing in the real world.

Congress responded by passing the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which was intended, in part, to close the loopholes that enabled regional fishery management councils to adopt ineffective management measures.

One of the relevant provisions required all regional fishery management councils to, in every fishery management plan they prepare,

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or seasonal specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”

Another stated that each such council must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendation of its scientific and statistical committee…”

Together, the provisions seemed to assure that fishermen would be held to scientifically justifiable catch levels each year, and that if they would face some sort of consequences—some sort of accountability—should such catch levels be exceeded.

And for a while, the management measures worked just that way.  More fish stocks were rebuild, and overfishing was largely controlled.  The problem was, some fishermen weren’t happy with the result, for while the law’s provisions promoted sustainable fisheries, they placed added restrictions on the number of fish that could be killed, and so placed some constraints on the recreational and commercial fishing industry’s profits.  Thus, for the last decade and more, the industry has been exerting political pressure on NMFS, seeking ways to exceed annual catch limits without being held accountable. 

Their efforts have spanned the gamut, from attempts to have responsibility for recreational red snapper management taken away from federal managers and handed over to the states, to passage of the so-called “Modern Fish Act,” which authorizes the use of “alternative management measures” rather than hard-poundage annual catch limits to manage recreational fisheries, to the creation and attempted creation of such alternative measures, including the adoption of the so-called “Percent Change Approach” by the Mid-Atlantic Fishery Management Council and, eventually, by the agency itself.

The Percent Change Approach has been their most successful effort to date.  It allows NMFS to set Recreational Harvest Targets that exceed the sector annual catch limit and that, when combined with the commercial quota, would permit the overall annual catch limit, and sometimes the Acceptable Biological Catch, to be exceeded without meaningful consequences.  Supposedly, some sort of Accountability Measures would be invoked if catch exceeded the annual catch limit, but such Accountability Measures are often so weak that they are meaningless.  For example, in a staff memorandum dated November 8, 2023, Julia Beaty, a staff biologist for the Mid-Atlantic Council, wrote

“As described in more detail below, an Accountability Measure has been triggered based on an overage of the average 2020-2022 recreational Annual Catch Limit.  For stocks with biomass above the target level, as is the case for black sea bass, the regulations require adjustments to the recreational measures; however, they do not specify how the measures should be modified.  In a letter to the Council dated October 30, 2022, the NOAA Fisheries Greater Atlantic Regional Fisheries Office (GARFO) stated that no additional action is required in 2023 to address the recent black sea bass overages, given the reductions contemplated for 2023 as well as the improvements made to the [Recreational Demand Model] which will be used for setting recreational measures for 2024.  [emphasis added]” 

Thus, we find ourselves in a situation where the Magnuson-Stevens Fishery Conservation and Management Act requires that fishermen be held responsible for exceeding the annual catch limit, NMFS regulations require adjustments to recreational fisheries management measures when the trigger for imposing accountability measures is tripped, but NMFS may nonetheless do nothing to hold fishermen accountable for their overage, if it can argue that other measures being taken are adequate to constrain future landings.

That’s hardly a disincentive to anglers who seek to overfish, nor does it disincentivize the angling industry representatives who might sit on the Mid-Atlantic Council from seeking to kill more fish than the scientific analysis recommends.  It guts the effectiveness of the provision in the Magnuson-Stevens Reauthorization Act that would hold fishermen accountable for overages, and thus hopefully dissuade them from exceeding the annual catch limit.

NMFS has been emboldened to push back against the annual catch limit and accountability language by a court decision in the case of Natural Resources Defense Council v. Raimondo, which permits NMFS to adopt management measures likely to cause the annual catch limit, and perhaps even the Overfishing Limit, to be exceeded in any given year, so long as the spawning stock biomass remains above the minimum level capable of producing maximum sustainable yield.  That decision effectively emasculated the provision of the Magnuson-Stevens Reauthorization Act that required regional fishery management measures to set annual catch limits below the level recommended by each such council’s scientific and statistical committee.

Recently, NMFS has issued another set of regulations governing the 2005 black sea bass fishery, that seem to ignore that provision.

In August, the Mid-Atlantic Council and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board met jointly to address a new Management Track Stock Assessment for black sea bass, which found that the previous assessment had overestimated black sea bass biomass, as well as the biomass reference points, by more than 20 percent.  It also addressed a report of the Mid-Atlantic Council’s scientific and statistical committee that recommended a 20 percent reduction in the annual catch limit for black sea bass.

The Management Board refused to accept the conclusions of the stock assessment or the recommendations of the Council’s Scientific and Statistical Committee, but instead voted to leave 2025 black sea bass specifications—Overfishing Limit, Acceptable Biological Catch, Annual Catch Limit, Commercial Quota, and Recreational Harvest Limit—unchanged from those applicable to the 2024 fishery.  The Council, on the other hand, bound by the relevant language of the Magnuson-Stevens Reauthorization Act, followed the recommendations of its scientific and statistical committee, thereby setting up a situation where federally permitted vessels would be disadvantaged by having to abide by more restrictive regulations, including smaller commercial quotas, than state permitted vessels.

The regional administrator for GARFO stated that regulations allowed him to adopt measures that would hopefully avoid any such inequity in the black sea bass fishery, but admitted that the situation had never arisen before, and he wasn’t quite sure what the regulations allowed him to do.

The regulations that he referenced, 50 C.F.R. 648.143(e), reads

“State/Federal disconnect AM.  If the total catch, allowable landings, commercial quotas, and/or [Recreational Harvest Limit] measures adopted by the ASMFC Summer Flounder, Scup, and Black Sea Bass Management Board and the [Mid-Atlantic Fishery Management Council] differ for a given fishing year, administrative action will be taken as soon as possible to revisit the respective recommendations of the two groups.  The intent of this action shall be to achieve alignment through consistent state and Federal measures such that no differential effects occur to Federal permit holders.”

NMFS seemingly views that regulation as sufficient authorization for it to ignore the language in Magnuson-Stevens requiring the Mid-Atlantic Council to set annual catch limits at or below the recommendation made by its scientific and statistical committee, as the combined annual catch limits for the recreational and commercial sectors adopted by the Management Board, and apparently now by NMFS, would not only exceed the fishing level recommendation of the committee, which takes the form of the Acceptable Biological Catch, but the Overfishing Limit as well.

NMFS justifies its action by stating that

“Given the current status of the black sea bass stock, which is well above the [fishery management plan’s] definition of a biomass capable of producing maximum sustainable yield, and the potentially significant social and economic harm to Federal permit holders that would result from divergent state and Federal quotas, we are proposing to implement 2025 black sea bass specifications consistent with those adopted by the Commission.”

Such action may seem odd, and probably illegal, on its face, since a clearly-worded statutory provision should prevail in any conflict with an agency regulation.  

However, given the language in NRDC v. Raimondo, which seemed to elevate process and form over practical function when it allowed NMFS to adopt a Recreational Landings Target pursuant to the Percent Change Approach that is higher than either the Recreational Harvest Limit or the Annual Catch Limit, on the theory that NMFS fulfilled its obligation under the statute when it  merely set a value for the Annual Catch Limit, even if such Annual Catch Limit didn’t, in reality, do anything to limit the catch, it is possible that NMFS is now taking the position that the Council fulfilled the legal obligation established in Magnuson-Stevens when it set an Annual Catch Limit that complied with the scientific and statistical committee’s advice, and that nothing in the relevant provision obligates NMFS to endorse the Council’s action.

Instead, pursuant to the regulation, NMFS may argue that it was free to adopt specifications that conflict with the scientific and statistical committee’s advice.

If its action faced a legal challenge, NMFS might very well believe that a reviewing court would rely on the logic of the NRDC v. Raimondo decision to uphold the agency’s action.

But, once again, such decision would undermine the intent of Congress when it included such language in the Magnuson-Stevens Reauthorization Act.

And, while NMFS’ actions in the mid-Atlantic might be relatively inconsequential if limited to the seemingly very healthy black sea bass fishery, the notion of employing alternative management measures to manage the recreational fishery, as promoted in the Modern Fish Act and practiced in the mid-Atlantic, may be spreading to other regions along the coast.  At least one southern fishery management council is already investigating possible ways to adopt such alternative measures in its recreational fisheries.

And thus NMFS is slowly turning back the clock.

By finding ways to circumvent the intent of Congress when it passed the Magnuson-Stevens Reauthorization Act, NMFS is taking a step back to a period when annual catch limits and meaningful accountability for the recreational, as well as the commercial, sector did not exist, and overfishing was tolerated even in the case of depleted stocks.

So far, those steps back have been relatively small, but given the current legal environment, coupled with an agency philosophy that seems to be subordinating conservation and the long-term health of fish stocks to short-term exploitation, particularly with respect to recreational fisheries, NMFS’ strides backward could get longer at any time.