DOES ANYONE WANT TO MANAGE BLACK SEA BASS?

 

The black sea bass is the enigma of mid-Atlantic fisheries.

Since 2007, when the spawning stock biomass (SSB) was barely above the threshold that denotes overfishing, the stock has staged a remarkable comeback, with SSB reaching a high of 24,680 metric tons (mt), approximately 220 percent of the biomass target, in 2022. The SSB has declined since then, to an estimated 20,987 mt in 2024; a management track stock assessment completed in June 2024 (2024 assessment) suggests that SSB will decline more sharply in the near future, to 17,442 mt in 2025 and 14,042 mt a year later.

Still, even an SSB of 14,000 mt is well above the 11,225 mt biomass target, and more than large enough to produce the stock’s maximum sustainable yield (MSY), which is estimated to be 3,649 mt, or a little over 8 million pounds.

But what is most interesting about the black sea bass stock’s recovery is that it happened almost by accident, and not as the result of thoughtful and conservative management.

A difficult fish to manage

The first black sea bass management plan was adopted by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (ASMFC) in 1996, shortly before a 1998 stock assessment found that the stock was overfished and probably experiencing overfishing. At the time, scientists weren’t able to calculate biological reference points, which are used to determine the spawning stock biomass and fishing mortality targets, as well as the thresholds that define overfishing and an overfished stock, and only did so when the 2016 stock assessment (2016 assessment) was prepared.

The 2016 assessment found that, based on the new biological reference points, the spawning stock biomass was very high, about 230 percent of its target level, and fishing mortality was well below its target.

Because black sea bass appeared to be very abundant, particularly off New York, New Jersey, and southern New England, the party and charter boat fleet had long been calling on managers to relax regulations, which they believed to be overly strict. At a June 2014 meeting of the Council’s and ASMFC’s joint Summer Flounder, Scup, and Black Sea Bass Advisory Panel (Advisory Panel), attendees complained that “black sea bass is facing a critical management situation that needs to be addressed immediately. Despite Magnuson Act restrictions, the Council and Commission need to approach these issues with more common sense. Waiting until a potential 2016 benchmark assessment will be too late. The current quota is punitive and based on bad information. Faith in the management system is being lost, and now is the time to break the rules and experiment with different solutions.”

When the 2016 assessment confirmed that the spawning stock biomass was more than twice the target level, demands to increase recreational landings became even more insistent. The report from the November 2017 Advisory Panel meeting, held after the 2016 assessment was released, noted that “Several advisors expressed frustration with the current process and the lack of Council/Board action in regard to the comments and suggestions provided by the [Advisory Panel]. Many felt that holding [Advisory Panel] meetings was done to just ‘check a box’ indicating this requirement was completed but their input is not considered…”

Despite managers’ imposition of increasingly restrictive regulation in an effort to constrain recreational landings to the recreational harvest limit (RHL), anglers chronically exceeded the RHL. During the period 2014-2018, the recreational sector exceeded the RHL in four out of five years, at times by as much as 84 percent, while only underharvesting in 2017, and that by a mere three percent.

By the time the Advisory Panel met in November 2019, it appeared that anglers would significantly exceed the 2019 RHL as well, and that it would take management measures restrictive enough to reduce landings by 20 percent to prevent another overage in 2020.

The Advisory Panel was not willing to accept such restrictive management measures. The report of the November 2019 meeting stated that

Twelve advisors spoke in favor of maintaining status quo recreational black sea bass management measures in 2020. Many advisors said they would prefer liberalizations but realized this is not possible given that projected 2019 harvest is higher than the 2020 RHL. One advisor said the restrictive management measures which would be required to prevent harvest from exceeding the 2020 RHL would be devastating to the recreational fishery. Many advisors expressed frustration that the fishery needs to be restricted when the stock is so healthy.

And that seemed to be the point when fishery managers gave up trying to actively manage black sea bass. For beginning in 2019, fisheries managers seemed to spend most of their time trying to find new and creative reasons to allow anglers to exceed the RHL, and very little time at all enforcing the provisions of the black sea bass management plan, or particularly the provisions regarding the permissible recreational harvest.

Scientists had already determined that the strength of black sea bass year classes was due less to the size of the SSB than to water conditions at the edge of the continental shelf, where recently-spawned sea bass spend their first winter. Warm, saline water tended to produce strong recruitment, making black sea bass a beneficiary of changing climate and a warming sea.

Managers decide to stop actively managing

Faced with a large spawning stock biomass, good recruitment of young fish into the population, and growing discontent among some in the angling community, managers apparently became resigned to the recreational sector exceeding its annual RHLs, and seemed willing to let nature take its course in the hopes that favorable environmental conditions would provide enough recruitment to make up for anglers’ excesses. A report of the November 2019 meeting of the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee), a group of state and federal fishery managers tasked with advising the Council and ASMFC on management matters, said that

The group agreed that it is very hard to justify a reduction in the harvest when the RHL is increasing by 59% [due to a recalculation of the SSB] compared to 2019, spawning stock biomass was 2.4 times the target level in 2018, and availability to anglers remains very high. They agreed that it is challenging to constrain the recreational fishery under current high levels of availability and further restrictions on harvest would likely increase discards. They also noted that spawning stock biomass has remained very high despite multiple consecutive years of [acceptable biological catch] overages, going back to at least 2015. Staff noted that recent above-average recruitment events have helped in maintaining a high biomass level despite [acceptable biological catch] overages…

So, the Monitoring Committee recommended that the Council and ASMFC maintain status quo management measures, even though such measures would probably result in the acceptable biological catch (ABC) for 2020 being exceeded. The Council and ASMFC ultimately heeded that advice, initiating a pattern of behavior that, although it would take different forms, has continued to the present day.

In 2020, the Monitoring Committee stated that

It is possible that there was a recreational overage in 2019. In addition, the use of status quo measures in 2020 was expected to result in an overage of the 2020 recreational [annual catch limit]; however…there were notable gaps in recreational data collection in 2020 due to Covid-19, which will pose challenges to estimating catch. Catch in 2021 is also uncertain; however, continued use of status quo measures may result in an overage of the 2021 recreational [annual catch limit] given past trends in the fishery…The [National Marine Fisheries Service’s (NMFS) Greater Atlantic Regional Fisheries Office (GARFO)] representative on the [Monitoring Committee] said that [the regional office] supports consideration of an additional year of status quo recreational management measures in 2021 given the current data limitations, the ongoing [fishery management plan amendment that would alter the commercial and recreational allocations of black sea bass] and [proposed changes to the recreational management process]…

The Council and ASMFC, apparently unconcerned about past and potential future recreational harvest overages, adopted status quo regulations once again.

In 2021, perhaps to no one’s surprise given that recreational overages were predicted for 2019, 2020, and very possibly 2021 as well, the Monitoring Committee was informed that a 28 percent reduction in recreational landings would be needed to keep such landings within the 2022 RHL. In addition, the GARFO representative to the Monitoring Committee noted that, because excessive recreational landings in 2018, 2019, and 2020 triggered accountability measures, regulations required that the Council take action to reduce recreational landings.

However, according to a report of the Monitoring Committee’s November meeting, “The [Monitoring Committee] preferred no change in the measures given that biomass is more than double the target and there are no concerning trends in recruitment or other stock status indicators…Therefore, the [Monitoring Committee’s] primary recommendation was for status quo measures in 2022. [emphasis in original]”

But on this one occasion, the Council and ASMFC did not follow the Monitoring Committee’s advice, because Michael Pentony, GARFO’s regional director, told the Council in no uncertain terms that if, despite the clear regulatory requirement that accountability measures be imposed, the Council did not adopt a 28 percent recreational landings reduction, then GARFO would not approve the Council’s decision. Thus, both management bodies reluctantly put such reduction in place.

To legally exceed the RHL

That would be the last time that the Council and ASMFC would adopt the full harvest reduction needed to constrain recreational landings to the RHL, for the management bodies were in the process of adopting a new way of managing recreational fisheries, called alternatively the “harvest control rule” or the “percent change approach” (new approach), which would formally allow them to set recreational harvest targets that substantially exceeded the RHL and even the recreational sector’s annual catch limit (ACL).

Although the Council and ASMFC approved the new approach in June 2022, the National Marine Fisheries Service would not issue final regulations embracing it until March 2023. Nonetheless, when the Council and ASMFC met in December 2022 to set 2023 recreational management measures for black sea bass, they proceeded as if regulations adopting the new approach were already in place. That had a major impact on the measures adopted, for under the traditional management approach, recreational black sea bass landings for 2023 would have been reduced by 45 percent, but, pursuant to the new approach’s methodology, only a 10 percent reduction was needed.

Such small harvest reduction allowed recreational landings to remain well above the RHL, and might have been difficult to justify on purely biological grounds, but in 2023 and 2024, the black sea bass management discussions became self-contradictory and perhaps somewhat weird.

2024 recreational black sea bass landings were predicted to exceed the RHL once again, and the new approach called for reducing such landings by 10 percent. Council staff noted that under the prevailing circumstances, “the Percent Change Approach does not allow for status quo measures.” However, it was clear that the Monitoring Committee was still reluctant to cut recreational landings and was seeking a reason to once again maintain the status quo, regardless of what the new approach required. The report of the November 2023 Monitoring Committee meeting noted that

The [Monitoring Committee] discussed the requirements of the Percent Change Approach given that the 2024 black sea bass RHL differs from the 2023 RHL due only to three additional years of catch data without updated stock status information. They agreed that the Percent Change Approach requirements in this situation are not clear. The framework/addenda which implemented the Percent Change Approach did not contemplate a situation where the RHL would change without a stock assessment update. When the framework/addenda was finalized, it was assumed that the management track stock assessments would be available every other year. The Percent Change Approach intends to set identical recreational management measures across two years to provide some stability; however, measures were set for just 2023 with the intent of setting 2024-2025 measures in response to an anticipated 2023 management track assessment. However, the management track assessment was later delayed for 2024…

Given all these considerations, but with greatest emphasis on the lack of updated stock assessment information, the [Monitoring Committee] recommended that recreational black sea bass measures be left unchanged in 2024. [emphasis in original]

And, eagerly accepting the Monitoring Committee’s advice, the Council and ASMFC again avoided reducing recreational black sea bass landings, even though such reduction was called for by the new approach, and would have been called for by the traditional approach, too.

The stock assessment no longer governs

But even if one accepts that the lack of an updated stock assessment justified leaving recreational management measures unchanged for the 2024 season, black sea bass management went completely off the rails when 2025 management was initially discussed in August 2024. By then, the Council and ASMFC had the new management track stock assessment that they lacked the year before. But the ASMFC, and eventually NMFS, simply chose to ignore it, even though such assessment had been peer reviewed by an independent panel of experts, who found that it “represents the Best Scientific Information Available (BSIA) for this stock for management purposes,” and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens),which governs all fishing in federal waters, clearly states that “Conservation and management measures shall be based upon the best scientific information available.”

The reason, which by then shouldn’t have surprised anyone familiar with how the resource has been—or, perhaps more accurately, has not been—managed up to that point, was that the 2024 assessment called for a reduction in landings.

Or, more precisely, it informed the Council and ASMFC that the black sea bass stock was about 20 percent smaller than the 30,774 mt estimate provided in the earlier 2021 stock assessment (2021 assessment). The 2024 assessment also determined that the target SSB was just 11,225 mt, compared to the 2021 assessment’s finding of 14,092 mt, and reduced the estimate of MSY from 4,773 to 3,649 mt.

In response to the findings of the 2024 assessment, the Council’s Scientific and Statistical Committee reduced its estimate of ABC by 20 percent, which should have translated into a 20 percent reduction in both commercial and recreational landings.

But that was something that no one—not the Monitoring Committee, not the Council nor ASMFC, and not NMFS—apparently wanted to do.

The report of the August 2024 Monitoring Committee meeting revealed that

Six [Monitoring Committee] members expressed concern with the 20% decline in the 2025 ABC compared to 2024 as there was not a clear explanation for why the biomass was projected to decline so sharply. Four of these six [Monitoring Committee] members said they couldn’t endorse the use of the SSC’s recommended 2025 ABC, though they acknowledged that the Council is bound by the SSC’s ABC recommendation.

The four [Monitoring Committee] members who could not endorse the 2025 ABC said a decrease in the ABC is not justifiable given that biomass is so far above the target level…The [Monitoring Committee] agreed that a decline in the ABC would have negative socioeconomic impacts for both the commercial and recreational sectors… [emphasis in original]

If you combine the comments in the 2023 and 2024 Monitoring Committee reports, what that committee was essentially saying was that the new approach called for recreational landings to be reduced by 10 percent in 2024, but the Monitoring Committee didn’t want to do that, because it didn’t have a recent stock assessment that demonstrated that such reduction was needed, and left 2024 landings unchanged. Then, in 2024, the Monitoring Committee received the 2024 assessment, which represented the best scientific information available, and indicated that the SSB was 20 percent smaller than previously believed. The Monitoring Committee also received an SSC recommendation based on the 2024 assessment which called for both commercial and recreational landings to be reduced by 20 percent. However, many committee members still didn’t want to recommend that reduction, either because they disagreed with the peer-reviewed assessment, or because they felt that there were enough black sea bass in the ocean that the scientific advice could be ignored.

While the Monitoring Committee did, in the end, adopt an overfishing limit, ABC, ACL, and RHL consistent with the 2024 assessment, committee members from Connecticut, New York, New Jersey, and Maryland (dissenting states) objected, and provided a minority report calling for status quo specifications. They declared that “Based on the latest stock assessments, fishery performance data, and insights from the Monitoring Committee,” the 20 percent reduction recommended by the SSC “is not justified and could lead to negative economic and ecological impacts.”

In support of that position, the dissenting states argued that “The 2024 Management Track Stock Assessment confirms that the Black Sea Bass stock is not overfished, and overfishing is not occurring,” and that “Spawning Stock Biomass (SSB) in 2023 was an estimated at 54.17 million pounds, which is 2.19 times the target level, indicating a robust and thriving population. [emphasis in original]”

The dissenting states did not mention, however, that such 54.17 million pounds was 20 percent less than the estimated biomass when the current management measures, which they hoped to perpetuate, were adopted.

The dissenting states also argued that “The recommendations for a 20% reduction in ABC are primarily based on projections for 2025-2026, which do not align with current trends observed in the assessment data,” and that “Biomass has continued to increase and management has continued to mostly reduce harvest since 2017…There is no indication that current levels of recruitment will not maintain current biomass levels. [emphasis in original]”

While all that could be true, the representatives of the dissenting states still failed to acknowledge that the 2024 assessment found that black sea bass SSB was 20 percent smaller than managers had previously believed, and so failed to explain why it would not be reasonable to reduce 2025 landings by 20 percent, thus scaling annual landings to the smaller SSB and achieving a consistent rate of removals from the stock.

The dissenting states concluded their report by stating, “Given the current robust stock status, we recommend advocating against the proposed ABC reduction and maintaining the current management strategies to continue the positive trend observed until the current assessment model and projections are currently evaluated,” even though such current assessment model had already passed a rigorous peer review, by a panel of three independent, internationally-recognized experts, who deemed such model “a significant advance from” the models used to determine the management measures that the dissenting states sought to preserve.

In the end, it was clear that the dissenting states just didn’t want to cut black sea bass landings, regardless of what the peer-reviewed science might say. They justified their reluctance by arguing that “Under-harvesting a stock can disrupt the balance within an ecosystem, leading to unintended consequences such as increased mortality to prey populations or changes to predator-prey dynamics,” that “A 20% reduction in ABC could unnecessarily constrain both commercial and recreational sectors, leading to lost economic opportunities and reduced community benefits,” and that “Such a reduction could undermine public confidence in fishery management and compliance with regulations, especially when stakeholders perceive are not agreeing with the data.”

Such arguments gained sympathetic ears on August 14, 2023, at the joint meeting of the Council and ASMFC convened to set black sea bass specifications for 2025. Various attendees commented that it would be “difficult to carry the message [of a 20 percent reduction in landings] back to the industry,” asked “how do we go back to stakeholders” with news of such reduction, fretted that managers were “at great risk of alienating our many stakeholders,” and declared that “this one [landings reduction] doesn’t make any sense.”

In the end, James Gilmore, New York’s legislative proxy, moved that the ASMFC suspend the rules that require it and the Council to adopt identical management measures with respect to 2025 black sea bass specifications. Such motion was seconded by John Clark, the Delaware fisheries manager, and passed on a near-unanimous vote, with only North Carolina opposed and NMFS abstaining. A follow-up motion made and seconded by the same people, to maintain status quo regulations, also passed easily, with only Rhode Island, North Carolina, and NMFS opposed.

Michael Luisi, the Maryland fisheries manager, moved that the Council also adopt status quo specifications, a motion that was seconded by Scott Lenox, an at-large Council member who was also from Maryland. However, Michael Pentony was quick to remind the Council that such action would violate the express language of Magnuson-Stevens, which states that ACLs set by regional fishery management councils “may not exceed the fishing level recommendations of [that council’s] scientific and statistical committee,” and stated that GARFO would disapprove any Council action that didn’t comply with the law. Thus, the Council adopted the 20 percent reduction in the ABC and set the commercial quota and RHL accordingly, creating different catch limits for state and federal waters.

Michael Pentony, referring to existing regulations, said that GARFO would take administrative action to resolve any inequities caused by such differing rules, although he wasn’t yet certain what that action would be.

The law might not govern, either

To steal a phrase uttered by Alice during her sojourn in Wonderland, after that, things began getting curiouser and curiouser.

The regulation that Michael Pentony referred to reads

If the total catch, allowable landings, commercial quotas, and/or RHL 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.

The regulation had never been used before, and it’s not completely clear that the regulation’s instruction to “revisit the respective recommendations” authorizes NMFS to issue proposed regulations without first consulting the Council, but that’s how the agency interpreted the language so, despite Michael Pentony’s adamant stance against status quo measures at the August 14 meeting, on October 16, 2024, NMFS issued a proposed regulation that embraced the same status quo measures that Pentony opposed (proposed regulation).

In justifying the proposed regulation, which ignores both the findings of the 2024 assessment and the advice of the Council’s SSC, NMFS echoed the language used by the dissenting states, claiming 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 [ASMFC].”

The proposed regulation also seems to violate some of Magnuson-Stevens’ provisions, although NMFS doesn’t believe that is true.

As Michael Pentony noted on August 14, Magnuson-Stevens prohibits the Council from setting an ACL that exceeds the SSC’s fishing level recommendation. Another provision of Magnuson-Stevens limits NMFS’ authority, saying that “The Secretary shall approve, disapprove, or partially approve a plan or amendment…by written notice to the Council.” Read together, such provisions strongly suggest that NMFS lacks the authority to substitute its own status quo ACL, which exceeds the SSC’s harvest level recommendation, for the recommendation that the Council made on August 14; at most, it appears that NMFS might have disapproved the Council recommended specifications and requested that the Council revisit the issue.

But NMFS interprets the law differently, observing that the law requires “Each Council” to set annual catch limits no higher than the SSC’s recommendation, but places no such restriction in NMFS itself. NMFS also believes that language limiting its authority to either approving, disapproving, or partially approving a Council action applies only to fishery management plans and amendments thereto, and not to setting annual specifications for the various fisheries. NMFS believes that its authority to overrule a Council decision on specifications, and replace that decision with its own, arises from a different section of Magnuson-Stevens which grants the agency “general responsibility to carry out any fishery management plan or amendment…in accordance with the provisions of this Act,” and provides that “The Secretary may promulgate such regulations…as may be necessary to discharge such responsibility or to carry out any other provision of this Act.”

It is very general language that mentions neither annual specifications nor Council actions. NMFS’ interpretation of the two relevant sections of Magnuson-Stevens, read together, apparently assumes that Congress was extremely concerned that when regional fishery management councils drafted management measures, including annual specifications, they do not stray from the SSC’s scientific advice, but that Congress had no problem whatsoever with NMFS ignoring such scientific advice and adopting whatever annual specifications that, in the exercise of its sole discretion, it felt it appropriate or convenient to put in place.

That would seem a strained interpretation of the law, and helps to illustrate why, in deciding the case of Loper Bright v. Raimondo last June, which also involved NMFS’ interpretation of a provision of Magnuson-Stevens that provided it with a general grant of authority, the Supreme Court of the United States abolished the so-called Chevron doctrine, and found that an agency’s interpretation of a statutory provisions is not entitled to any deference when a court reviews such agency’s actions.

But whether or not the aforementioned provisions of Magnuson-Stevens apply, it’s difficult to understand how NMFS’ failure to conform the proposed amendment to the information provided in the 2024 assessment complies with the legal requirement that such measures are based on the best scientific information available.

Does it really matter?

Fishery managers would have the public believe that status quo management measures are appropriate, because the black sea bass stock has been thriving regardless of chronic recreational overharvest and combined commercial and recreational landings that exceeded the ABC, often by a very substantial amount, in 10 of the last 11 years.

But is that really the case? Some available data suggests that it’s not.

It is difficult to compare recreational black sea bass landings over the years, because of frequently changing size limits. However, data for New York and New England during the years 2022-2024, when the age and size limits remained consistent, seems to shows a steady decline in landings. During the period March-August of each of those years (the March-August period is used for comparison because data for the last four months of 2024 are not yet available), landings fell from slightly over 1.7 million fish in 2022, to 1.3 million in 2023, to just over 0.9 million in 2024. While three years probably don’t provide enough data to indicate a trend, the declining landings do suggest that the 2024 assessment’s projections of an SSB decline may be rooted in reality, despite some managers’ doubts.

It is virtually certain that NMFS will adopt the proposed regulation in their final 2025 specifications for black sea bass. That being the case, the next question is how the Council and ASMFC will react after the next management track assessment is released sometime around June 2025.

Will they conform 2026 management measures to the 2025 assessment, and whatever recommendations the SSC might make? Or, if they don’t like what an assessment and SSC say, will they just ignore the advice again, as they ignored it in 2024?

Time will tell.

But given the Council’s and the ASMFC’s past responses to recommendations they didn’t particularly like, it would probably be foolish to bet against them maintaining the status quo, regardless of what the best available science might say.

-----

This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/