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
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.
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.
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.
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.
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