CONSERVATIONISTS DON'T OVERFISH

One of the most sadly amusing aspects of the current debate over managing federal fisheries is that the folks who are trying the hardest to wrap themselves up in the flag of conservation are members of the same coalition of fishing tackle industry, marine trades, and anglers’ rights organizations who are trying to weaken the conservation provisions of the Magnuson-Stevens Fishery Conservation and Management Act.

It started in the very beginning of the campaign to weaken Magnuson-Stevens.  A report titled “A Vision for Managing America’s Recreational Saltwater Fisheries,” issued by the Theodore Roosevelt Conservation Partnership, that served as a manifesto for the industry/anglers’ rights coalition, opens by saying

“America’s sportsmen and women are the backbone of aquatic resource conservation.  For the past several decades, anglers have played a leading role in helping to rebuild marine fish stocks and prevent overfishing.  This is a success story of which we should all be proud.”

After thus setting the stage, and invoking the term “conservation” no less than nineteen times, the report makes its recommendations—which include freeing recreational fishermen from the strictures of annual catch limits designed to prevent overfishing, and delaying the rebuilding of overfished stocks.

It’s the sort of thing that almost makes you wonder whether the folks who wrote the report’s introductory language had any idea of what its recommendations were going to be.  Or whether they were merely engaged in a vaudeville magicians’ game of focusing everyone’s attention on their glamorous assistant—in this case, the image of the angler/conservationist—so that no one notices what’s really happening elsewhere on stage…

That report came out about four years ago, and the people behind it have only doubled down since then.

All of those organizations have gotten behind a piece of legislation called the Modernizing Recreational Fisheries Management Act, designated S. 1520 in the Senate and H.R. 2023 in the House of Representatives, which they usually refer to as the “Modern Fish Act.”  Such bill, as originally written, would amend Magnuson-Stevens in accord with the recommendation of the “Vision” report, and so weaken the law’s prohibition on overfishing and its requirement to promptly rebuild overfished stocks.

The Center for Sportfishing Policy, an umbrella organization that includes most of the recreational and boatbuilding groups trying to weaken Magnuson-Stevens among its members, stated in a press release that

“In 2014, the Morris-Deal Commission [which was established and peopled by Center for Sportfishing Policy members] released ‘A Vision for Managing America’s Saltwater Recreational Fisheries,” which included six key policy changes to expand saltwater recreational fishing’s social, economic and conservation benefits to the nation.

“Many recommendations of the Morris-Deal Commission are addressed by [S. 1520].  [emphasis added]”

While the Center for Sportfishing Policy, like the “Vision” report, at least gives lip service to conservation, the quotes of some of its members, in the same press release, provide a real look at what is motivating support for the legislation.

Mike Nussman, president and chief executive officer of the American Sportfishing Association, which represents the fishing tackle industry, noted that action on the Modern Fish Act

“is evidence that Congress recognizes the economic and social impact that saltwater recreational fishing has on the nation.  There are 11 million saltwater recreational anglers in the U.S. who have a $63 billion economic impact annually and generate 440,000 jobs…”

No mention of conservation there; he could have as easily been talking about strip mining or building beachfront resorts.

And Thom Dammrich, president of the National Marine Manufacturers Association, hailed the bill because

“For too long, the federal fisheries management system has limited access for America’s recreational anglers and boaters due to faulty data and misguided regulations, which in turn has jeopardized the economic vitality of the recreational boating industry.  On behalf of the estimated 650,000 workers the recreational boating industry supports, we are eager to continue working with our allies in both chambers of Congress to get this important legislation to the president’s desk.”

Dammrich’s language isn’t all that different from the language that coal companies used to attack regulations that prevented them from dumping mine waste into free-flowing streams, or that the electric power industry used to attack rules limiting the amount of toxic metals they could release into the environment as a result of their operations.  Conservation is not even mentioned, although the reference to “misguided regulations” could easily be interpreted as a criticism of at least some conservation efforts.

To be fair, Patrick Murray, president of the Coastal Conservation Association, the largest anglers’ rights group supporting the bill, did say that S. 1520 would

“advance a common-sense policy that remains true to our conservation goals.”

However, Murray also noted that such bill would do so

“while promoting access to our nation’s healthy natural resources.”

Given that the only thing now preventing such “access” to fishery resources are the annual catch limits that help to prevent overfishing and the restrictions needed to restore overfished stocks—provisions that both the “Vision” report and the Modern Fish Act would weaken or remove from the law—talking about “conservation” out of one side of one’s mouth while praising the weakening of conservation measures out of the other seems like a strange thing for the president of any organization with “conservation” in its name to do.

What’s even stranger is that a purported supporter of conservation would support H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, a much more comprehensive Magnuson-Stevens reauthorization bill that not only incorporates many Modern Fish Act provisions, but would also do far more violence to core conservation provisions of federal law that have helped to completely restore 44 once-overfished stocks since the year 2000, and have ended overfishing in many others.

H.R. 200 is so bad that mainstream conservation organizations have called it “another ‘Empty Oceans Act,’” yet not only Murray’s Coastal Conservation Association, but the entire Center for Sportfishing Policy cabal, is staunchly behind the bill.

Recently, the Center for Sportfishing Policy’s president, Jeff Angers, responded to a group of Louisiana chefs’ criticisms of the Modern Fish Act by saying

“We know who’s benefitting from cheap product taken by commercial harvesters—it’s a chef who charges $25 for a fancy meal at a French Quarter restaurant.  The last people on Earth I would go to for guidance on fisheries management are chefs and fancy restaurants in New Orleans.”

David Cresson, executive director of the Coastal Conservation Association’s Louisiana chapter, also chimed in, asserting that

“To claim as some chefs have, that recreational fishermen are in favor of overfishing is nonsense.”

The Angers’ and Cresson’s response is so vehement that it’s hard not to recall the famous line from Shakespeare’s Hamlet,

“The lady doth protest too much, methinks,”

referring to the excessive strength of a one character’s assertions, which were so strong that they cast doubt upon their veracity.

Fortunately, we have some objective evidence that removes doubt from the question of whether Modern Fish Act supporters support conservation, and whether recreational fishermen, or at least those such as Cresson, in the Modern Fish Act camp, support overfishing.

That evidence comes in the form of last year’s reopening of the private boat red snapper season in the Gulf of Mexico, how folks responded to the event, and what has since occurred.

I’ve discussed that reopening a number of times, and won’t go into too much detail again.  The key facts are that the original, short federal season was intended to prevent overfishing, largely due to fishing in state waters when the federal season was closed, that the Secretary reopened the season knowing that it would lead to overfishing the annual catch limit by as much as 50%, and that such overfishing was acknowledged in the federal register at the time the reopening was announced, in a statement that read, in part

“this approach will necessarily mean that the private recreational sector will substantially exceed its annual catch limit, which was designed to prevent overfishing the stock.”

Thus, anyone involved in the issue, including the Coastal Conservation Association, the Center for Sportfishing Policy or any of the other affiliated recreational groups, couldn’t help but know that the reopening would lead to overfishing.

That makes it easy to test the truth of Cresson’s contention that recreational fishermen don’t support overfishing.  You just have to ask whether they supported the red snapper reopening.

It turns out that they did.

The Center for Sportfishing Policy, responded to the reopening by announcing that

“Anglers commend the Trump Administration and Members of Congress for hearing our calls for more access to federal waters—and for taking action,”

while the Coastal Conservation Association said

“action to extend the Gulf of Mexico red snapper season is a welcome boon to anglers…”

Not a single organization supporting the Modern Fish Act stepped up to the microphone to say “overfishing red snapper is wrong.”

Things got even more interesting after the Ocean Conservancyand the Environmental Defense Fund sued the Department of Commerce, arguingthat the reopening, and resultant overfishing, was illegal as a matter of law.  

Not only did the various angling groups fail to intervene in the lawsuit as plaintiffs—which would have been a reasonable thing for them to do if they didn’t support overfishing, particularly in the case of those groups who claim to advocate for conservation—but some publicly condemned the lawsuit.

The Coastal Conservation Association’s Cresson was the most outspoken, saying

“We figured they would sue when this first happened because it’s what they do.  Basically, any time there’s something positive for anglers, anti-angling groups like these step up and file lawsuits.

“By all accounts, the extended season has been extremely positive for anglers and businesses across the coast.  But it’s just not a surprise at all that these groups would file suit to keep us off the water.  They don’t like anglers, and they’d rather us [sic] never fish—and they’ll do whatever they need to do to lead to that end.”

Thus, the same person who later said that it was “nonsense” to claim that recreational anglers are in favor of overfishing not only defended recreational fishermen overfishing red snapper, but believed that such overfishing was “positive for anglers.”  

Which makes it easy for everyone else to believe that claims that at least some recreational anglers—apparently including Cresson—support overfishing aren’t “nonsense” at all.

Chris Macaluso, marine fisheries director for the Theodore Roosevelt Conservation Partnership, struck a lower-key posture, justifying the reopening as a “short-term fix” to a longer-term problem, and questioned whether overfishing would really occur as a result.

The Center for Sportfishing Policy’s Angers took the same position, but in a more combative way, arguing that there was no way that the conservation groups who brought the lawsuit could know that overfishing would occur, arguing on the record that

“We do not know if the Gulf states are going to exceed their historical catch, and the plaintiffs do not know that either.  The states have the tools to collect better data than the federal government, and they have a proven track record of providing reasonable public access to healthy fish stocks.”

In this case, what Angers seems to have deemed “reasonable” public access led to an unreasonably high recreational harvest.

The Department of Commerce estimated that anglers would exceed their annual catch limit by thirty to fifty percent.  It turns out that the agency vastly underestimated anglers’ ability to overfish once they set their minds to that task.

Recent information emerging from the Gulf suggests that, as a result of the reopened season, recreational fishermen didn’t cause red snapper to be overfished by 30 percent, or even by 50%.  Instead, it appears that recreational fishermen in the Gulf of Mexico caused red snapper to be overfished by more than 200 percent in 2017.

David Cresson says that it’s “nonsense” to say that anglers support overfishing.

Chris Horton, Fisheries Program Director for the Congressonal Sportsmen’s Foundation, a Modern Fish Act proponent, says that

“As anglers, we would never support a bill that would lead to widespread overfishing   and fewer fish to catch…

“As the original fisheries conservationists, anglers demand that our fisheries be managed sustainably.”

It’s pretty hard to defend overfishing a stock by 212%; that’s certainly not sustainable management.  Yet neither Cresson nor Horton have, to my knowledge, pointed that out.  

As far as I can tell, neither one publicly expressed any outrage.  Neither one demanded that that NMFS adopt measures to prevent such an extreme overharvest from occurring again.

The rest of the Modern Fish Act's supporters have been equally silent.

And that’s curious, if they’re really “the original fisheries conservationists,” and not in favor of anglers overfishing fish stocks.

Because conservationists don’t tolerate overfishing.

Conservationists don’t overfish.

Only regular, everyday fish hogs do that.

A HABIT OF WAITING TOO LONG

I started shark fishing about forty years ago—closer to fifty, if you include some ill-advised sessions trying to catch something large and toothy with a rope tied to the bow of a friend’s 10 ½-foot skiff—so I’ve had lots of time to watch the fishery change.

Decades ago, the fish were all over.  Big female sandbars—sharks measuring 7 feet long or more—were frequent visitors to my childhood waters in western Long Island Sound.  

Offshore, sharks of many species, including some truly large blue sharks and duskies, patrolled the waters and frequently stole cod when we fished off Rhode Island.

But of all the sharks that swam in those days, none were as prized as the mako.

I should be proper and say “shortfin mako,” to distinguish it from its close relative, the longfin mako.  But the latter is a fish of deep waters that rarely interacts with anglers, at least in the northeast. Up here, the shortfins are all that we see, and we just call them “makos.”

Back when I began, big makos weren’t rare.  

People would start looking for them before Memorial Day, and even though those early anglers usually only caught bluefish and blue sharks, a few of them got makos, too.  

June was peak season, when many 200, 300 and even 400 pound fish were brought back to ports on Long Island, but even during the heights of summer, folks who put in their time found some of those bigger fish, too; the New York state record, 1,080 pounds, was caught on August 26, 1979.   

When waters began to cool in the fall, mako numbers would increase again, and they’d stay ‘til the bluefish were gone.

Over the years, that started to change.  Makos started showing up later in the spring, and most disappeared sooner in the fall.  Although some large fish were still caught, the sharks started getting smaller, too.  By the late 1990s, it was clear that something was wrong.

In 1999, the National Marine Fisheries Service adopted the Final Fishery Management Plan for Atlantic Tuna, Swordfish and Sharks, but it didn’t do much for the mako.  Recreational anglers were limited to one shark per trip, and a meaningless 54-inch minimum size.  Since about 50% of female makos are reproductively mature by the time they reach a fork length of about nine feet, when they are typically around 18 years old; setting a minimum size at only half a mako’s length at maturity did little or nothing to protect the spawning stock.  

Still, it was better than the regulations for the commercial fishery, where there was no minimum size at all.

Yet even those minimal restrictions were too much for some recreational fishermen, who sued to overturn them.  The Jersey Coast Anglers’ Association, part of a coalition or organizations, which included, among others, the Recreational Fishing Alliance, United Boatmen of New Jersey and New York and the Confederation of the Association of Atlantic Charter Boats and Captains [sic], announced that

“The arrogance of the National Marine Fisheries Service and their refusal to correct the inequities in the plan left this coalition no choice to go ahead with the lawsuit.”

They were entitled to their opinion, but the court deciding the case, Recreational Fishing Alliance v. Evans, disagreed with the plaintiffs on every point, and kept the plan intact.

Still, when even minimal levels of regulations can incite the sort of organizations that seek to preserve “the days of freedom in our fisheries” to file lawsuits, it’s easy to understand why fishery managers sometimes avoid taking unpopular actions.  

In the case of shortfin makos, such regulatory inaction led to real harm

Down in Florida, researchers at Nova Southeastern University have been placing satellite tags in shortfin mako sharks.  Based on the number of tagged fish that were caught, they calculated that fishing mortality on makos in the western North Atlantic was ten times higher than previously believed; a typical shark has only a 78% chance of remaining uncaught over the course of one year.

That finding was soon followed by the International Commission on the Conservation of Atlantic Tuna’s new shortfin mako stock assessment, which found that makos in the North Atlantic were both overfished and subject to overfishing.  Overfishing is so severe that fishing mortality would have to be cut by 75% just to prevent shortfin mako abundance from declining further.

ICCAT responded by adopting restrictions on harvest, which were recently adopted by the United States in an emergency regulation.  Commercial fishermen will have to release all live makos they bring to their boat (and only pelagic longliners may retain the dead ones); the recreational size limit has finally been raised to a more meaningful 83 inches—although that’s still too small to protect the females until they mature.

Yet it’s far from certain that such measures will be enough to achieve the needed 75% mortality reduction.  Even if they do that, there is only a 25% chance that they will rebuild the shortfin mako population by 2040—22 years from now.

What is certain is that if regulators had acted sooner, and reduced mako harvest before things got this bad, there would be more shortfin makos swimming around the North Atlantic today.

And, unfortunately, it’s not only ICCAT and the other folks who manage highly migratory species such as sharks who are prone to delay.

About a decade ago, anglers started reporting a decline in the number of striped bass that they were seeing, and asking that harvest be reduced.  However, managers remained fixated on the current state of the stock, which was good, and refused to look at what was likely to happen in the future.  One member of the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board even tried to justify an increase in commercial quota by saying

“We’re at tremendous levels of biomass.  We think that there may be a decline in the stock but that is three or four years down the line.  If that does manifest itself, then we can take action then.”

The benefits of making a small, precautionary reduction in harvest immediately, to avoid the need to make much more significant cuts in three or four years, apparently never occurred to him.

Even after a stock assessment update, released in 2011, predicted that

“Female [spawning stock biomass] will fall slightly below the threshold by 2017,”

meaning that the stock would become overfished, managers were reluctant to take any action.  At its November 2011 meeting, ASMFC’s Striped Bass Management Board decided not to move forward with a contemplated harvest reduction, largely because the stock was not yet overfished and overfishing was not yet occurring.  The comments of Tom Fote, the Governor’s Appointee from New Jersey, were typical.

“…there was never a striped bass tournament during that period of time in June when we had the fluke tournament.  Last year we ran into five of our member clubs that belong to Jersey Coast [Anglers Association] that were running striped bass tournaments because that was the only thing people were out there catching to eat in New Jersey.

“…I also look at the fact that we’re dealing with a species that is not being overfished and overfishing is not taking place…

“Also, if I’m asking for a relax on regulations like that [on summer flounder, scup and black sea bass] and striped bass is in a better situation than those species, how can I be a hypocrite and go out to my public in New Jersey and basically say, oh, by the way, we’ve been doing so great with striped bass and there really is no—we haven’t hit any of the triggers and now I’m going to reduce your catch by 40 percent.

“No, I don’t see that with my fishermen basically approving it…”

So managers decided to live in the moment and allow the stock to decline, until a new benchmark assessment that came out in 2013 required them to cut landings by 25%, lest the stock become overfished in 2015.  And even then, it took a year of debate, and a tense, all-day meeting, before those reductions occurred.

Even at that, things could have been worse, because striped bass never did become overfished.

That wasn’t the case with tautog.

ASMFC knew that tautog were overfished, and suffering from severe overfishing, by 1996.  But the states never adopted regulations that came close to ending overfishing or rebuilding the overfished stock, and ASMFC’s Tautog Management Board never summoned the will to require measures tough enough to get the job done.  A benchmark stock assessment released in 2015 found that tautog remained overfished throughout its range.

In an effort to fix the problem, the Management Board initiated a new Draft Amendment 1 to ASMFC’s tautog management plan, which broke the tautog’s coastal range into four different regions, and proposed measures that had a good chance of rebuilding the stock in each one. 

In Long Island Sound, the population had become very badly overfished, and severe measures were proposed to restore it to health.  A 47% reduction in fishing mortality was required.  However, such a cut didn’t go over well with the recreational fishing industry, particularly the for-hire fleet.  

Here in New York, they packed into the ASMFC hearing on the Amendment, to become an undisciplined mob that showed no respect for either the process, the forum of the people involved, and made it clear that they were not willing to accept the biologists’ advice.  Attendees at a Connecticut hearing were reportedly better-behaved, but no more willing to accept the Amendment.

As a result, the Tautog Management Board blinked, and reduced the required harvest cut from 47% to just 20.3%; such a reduction has only a 50% chance—coin-flip odds—of ending overfishing by 2029, more than a decade from now.  No one has any idea when, or if, the stock will rebuild.

And that’s why critics of the Magnuson-Stevens Fishery Conservation and Management Act, with its hard-poundage catch limits, accountability measures and rebuilding deadlines, are so far off base.  

In their support for bills such as H.R. 200, the so-called Strengthening Fishing Communities and Increasing Flexibility in Fishery Management Act, and H.R. 2023, the Modernizing Recreational Fisheries Management Act (better known as the “Modern Fish Act”), which would substantially weaken those management tools, they forget one critical thing.

When managing fisheries, you’re not only dealing with fish.  You’re dealing with people, too.

You’re dealing with people who catch the fish, whether they’re recreational or commercial fishermen.  And with the folks who run the boats, sell the gear, and otherwise profit from fishing.  

You’re dealing with people who sit on fishery management panels, many of whom are fishermen themselves, who want to do the right thing, and don’t want to hurt their neighbors, but particularly don’t want to have their neighbors spit in the street and turn their heads the other way instead of saying hello because of a panel decision.  

And you’re dealing with people in government, who don’t enjoy being pilloried in the press and abused at public meetings any more than you or I would.

All those people, being completely human, would rather wait, and put off an unpopular decision for as long as they can, rather than take even a badly needed action and being condemned as a result.  Their lives turn out better that way.

Because fishermen are a little funny.  If their landings are reduced by regulation, even a regulation that will allow them to catch more fish in five years or so, they’ll hoot and they’ll yell and they’ll call people names.  But if their landings fall because they’ve overfished, and they’re now casting their lines into near-empty waters and pulling their nets through a near-empty sea, they won’t blame anyone at all.  “It’s just how it goes.”  “The fish went away.”

So for managers, doing nothing is the easy way out.  It becomes a bad habit, and bad habits aren’t easy to break.

That’s why we need a strong Magnuson-Stevens, that prohibits overfishing, puts hard, science-based limits on landings, and requires that stocks be promptly rebuilt.  When managers are faced with the choice of breaking a habit or breaking the law, Magnuson-Stevens makes taking action easier than doing nothing at all.

And so things get done.

FISHERIES MANAGEMENT: REINVENTING THE (SQUARE) WHEEL

Saltwater fisheries management is a relatively new science.

Freshwater fisheries managers have been developing population models and experimenting with various management measures for years, but on the Mid-Atlantic coast, we never saw any such models until 1997, when a virtual population analysis was used to assess the striped bass stock.

Fisheries management has advanced a long way in the last twenty years. Mathematical population models have become the norm; an innovative stock assessment for black sea bass, which passed peer review in late 2016, resolved the last “data-poor species” issue in the Mid-Atlantic region.

However, having a good stock assessment only answers part of the management puzzle. It’s also necessary to limit commercial and recreational landings, so that harvest doesn’t exceed sustainable levels.

That’s not too hard to do in commercial fisheries, where a relatively small number of fishermen must sell their catch to an even smaller number of buyers. In recreational fisheries, where millions of anglers land their fish at countless places that might include remote beaches, busy commercial marinas and even docks in their own backyards, it is far more difficult to get a handle on landings.

In most recreational fisheries, anglers, unlike their commercial counterparts, are not required to report their catch, and it is physically impossible to do an accurate census of all the fish caught. Thus, recreational landings must be estimated by surveying selected anglers, through a process known as the Marine Recreational Information Program (MRIP). Because MRIP is a survey and not a census, its harvest estimates always contain some degree of uncertainty; it also takes some time to calculate harvest estimates from the survey data.

Such delays also mean that it takes some time to determine whether the regulations used to prevent overfishing, which are usually some combination of size limits, bag limits and seasons, are restrictive enough to achieve their goals while still allowing anglers to catch all, or at least nearly all, of their annual quotas.

Recently, some anglers’ rights organizations, along with some members of the fishing tackle and boating industries, have argued that such delays, and the uncertainties inherent in MRIP, justify exempting recreational fishermen from annual catch limits, the most effective tool that managers use to prevent harmful overfishing.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in federal waters, did not always require managers to prevent overfishing; that requirement was only added in 1996, when the Sustainable Fisheries Act was passed in an effort to reverse a decline in fish abundance that was being felt on every coast of the United States.

The Sustainable Fisheries Act’s changes to Magnuson-Stevens, and a subsequent appellate court decision that required all fishery management plans to have at least a 50% chance of achieving their goals, led to the recovery of many fish stocks. Even so, as the Washington Post reported, fishery managers “regularly flouted scientific advice and authorized more fishing than could be sustained.” In response, when Magnuson-Stevens was reauthorized in early 2007, it included provisions for mandatory, hard-poundage annual catch limits for almost all federally-managed fisheries, and made fishermen accountable for any overfishing that might occur.

The imposition of such annual catch limits sharply reduced the incidence of overfishing; in 2016, overfishing only occurred in about 8% of all federally-managed fisheries. But in some recreational fisheries, such as Gulf of Mexico red snapper, where anglers chronically exceeded their quotas, annual catch limits forced fishery managers to impose very restrictive, and very unpopular, regulations.

Thus, the various angling groups are now trying to force federal fishery managers to take a step backward, to a time when various “alternative” fishery management measures, which often failed to prevent overfishing, were still used. To that end, they are urging Congress to pass the so-called Modernizing Recreational Fisheries Management Act (Modern Fish Act).

The Modern Fish Act provides, among other things, that federal fishery managers would “have the authority to use alternative fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulations, including extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities.”

While that doesn’t sound too malign, given that guidelines issued by NOAA Fisheries already allow managers to employ such measures, current law does not relieve managers of their obligation to establish and enforce an effective annual catch limit, even when alternative management measures are used. There are other provisions of the Modern Fish Act that would create substantial exceptions to the annual catch limit requirement.

The ultimate goal of Modern Fish Act supporters is to clearly to eliminate annual catch limits in many, if not all, recreational fisheries.

The American Sportfishing Association (ASA), which represents the recreational fishing tackle industry, states that the Modern Fish Act will allow “exemptions where annual catch limits don’t fit.” ASA doesn’t explain what it means by “don’t fit,” but given that the sole purpose of annual catch limits is to prevent overfishing, the only time they wouldn’t “fit” is when ASA would let overfishing occur.

The Center for Sportfishing Policy, an organization dedicated to finding political solutions to fisheries issues, is less cryptic. It is encouraging people to support the Modern Fish Act because it “Modifies the annual catch limit requirement to allow for more adaptive approaches.”

Modern Fish Act supporters frequently point to Atlantic striped bass as a fishery management success, achieved through “alternative” measures. A closer looks shows that such alleged success is illusory. The most recent update to the striped bass stock assessment, released late in 2016, indicated that the female spawning stock biomass (SSB) hovered just 1,200 metric tons above the overfishing threshold, and was 13,000 metric tons below the SSB target.

When the Atlantic States Marine Fisheries Commission (ASMFC) adopted measures to increase the SSB, it required recreational fishermen within the Chesapeake Bay to reduce their landings by 20.5%, compared to what such landings had been in 2012. However, ASMFC failed to impose an annual catch limit on the Chesapeake anglers. As a result, in the first year of the new management plan, Chesapeake Bay anglers didn’t just fail to meet the mandated 20.5% reduction; they increased their landings by more than 58% instead.

And because ASMFC failed to adopt any sort of recreational accountability measures, Chesapeake Bay striped bass landings have climbed even higher since then.

Such a result shouldn’t surprise anyone familiar with how “alternative” management measures function in the real world; if anything, striped bass represent a best-case outcome. ASMFC’s management of the tautog fishery provides a much starker example.

By 1996, biologists knew that tautog were overfished, and experiencing severe overfishing. ASMFC adopted a management plan intended to end overfishing and begin rebuilding the stock, but imposed no annual catch limit and no accountability measures on the recreational fishery. As a result, the states never imposed sufficiently restrictive regulations on anglers. In 2007, more than a decade later, ASMFC admitted that “The trend in total stock biomass and spawning stock biomass has been generally flat and at low levels since 1994.”

In other words, the “alternative” management measures, which did not include annual catch limits, had failed.

So ASMFC tried again. But a stock assessment update released in 2016 found that fishing mortality was still twice the level recommended in 1996. Twenty years of “alternative” management, without annual catch limits, failed to come close to rebuilding the stock.

As such examples make clear, the “Modern” Fish Act is not really modern at all. By seeking to infuse recreational fishery management with the sort of management measures that so often failed in the past, it is not merely reinventing the wheel, it is reinventing a square wheel design that is ill-suited to moving the management process forward and restoring fish stocks to the sort of abundance that benefits everyone.

Without the discipline imposed by annual catch limits, managers will always be tempted to dither, and avoid imposing the sort of controversial and politically unpopular restrictions that are so often needed to rebuild fish stocks.

So yes, there are people telling anglers to support the Modern Fish Act, and “alternative” management measures.

But what they’re not telling anglers is that such measures are, in truth, an alternative to effective fishery management, and to rebuilt and healthy fish stocks.

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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/

THE MODERN FISH ACT IN THE SENATE: SOME PROMISE, BUT MANY PERILS

On the morning of February 28, the Senate Committee on Commerce, Science, & Transportation marked up and approved S. 1520, the Modernizing Recreational Fisheries Management Act.

The Committee’s action was hailed by a coalition of fishing tackle industry, boatbuilding and anglers’ rights groups, which has been trying to relax regulations governing recreational fishing in federal waters by weakening the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act.  And it was decried by a number of conservation organizations, which have long been defending Magnuson-Stevens from attack by elements of both the recreational and commercial fishing industries.

While the version of S. 1520 reported out of Committee remains a seriously flawed bill, and one not yet worthy of passage, the current version is far less offensive than the bill initially introduced in the Senate, and represents far less of a victory for Magnuson-Stevens’ critics than their recent press releases would have folks believe.  

In its present form, S. 1520 demonstrates both the promise and perils of this particular piece of legislation.

There is promise because a lot of bad language was removed from the bill, thanks to its sponsor, Roger Wicker (R-MS) and a bipartisan group of senators, who were willing to work together to address many of the public’s concerns.

Language that would have exempted both data-poor stocks and those that have not been recently assessed—both circumstances could render stocks particularly vulnerable to overfishing—has been deleted from the legislation.  New language that provides the Secretary of Commerce, and so federal fishery managers, with criteria to determine whether a fishery management plan is not achieving its goals has been added in.   

And a rule of construction has been added, which states that nothing in the bill should be construed to modify Magnuson-Stevens’ current requirements that overfishing be avoided, that stocks be managed for optimum yield, that scientists set the maximum harvest levels, and that annual catch limits and accountability measures are included in every fishery management plan.

That’s the good news. 

In addition, language that would have authorized the use of “alternative” management measures—that is, alternative to fixed annual catch limits that prevent overfishing—has been modified, and now merely memorializes in law management approaches that are already permitted by regulations. 

Other language, that would have almost certainly biased a planned study against catch shares (more properly called “limited access privilege programs”) was scrapped, as were some very burdensome requirements that the National Marine Fisheries Service would have had to fulfill before issuing an exempted fisheries permit to further research goals.

And provisions that could have significantly weakened the quality of the science used in stock assessments and other data-gathering activities, by incorporating potentially biased information provided by fishermen and other “nongovernmental” sources who lacked scientific training, was toned down quite a bit, although not completely removed.

That’s the not-bad news. 

It’s nice that there’s promise, but the peril of the bill remains very real.

S. 1520 would still require the South Atlantic and Gulf of Mexico regional fishery management councils, within two years after the law is enacted, to review the commercial and recreational allocations in all of the fisheries that such councils manage, and to reexamine such allocates every five years.  Given that allocation is always an extremely difficult and divisive topic, and that allocation debates are always bitter and seldom come to workable conclusions, such requirement places an unreasonable burden on the time and resources of the councils.

To understand the volume of work involved, consider the fact that the South Atlantic Fishery Management Council manages 75 different species, and that the Gulf of Mexico Fishery Management Council manages at least 35 more.  Then think about how long, divisive allocation debates about how to allocate many of such species would divert council members from their primary responsibility to conserve and manage fish stocks.

S. 1520 would also still require a study of limited access privilege programs, which have a proven record of success in ending overfishing in commercial fisheries.  In the Gulf of Mexico red snapper fishery, for example, such a program halted overfishing in the commercial sector more than a decade ago, while the recreational sector still regularly exceeds its allocation, causing the stock to be overfished by 212% in 2017.

Worse, the bill would impose a two-year moratorium on the establishment of new catch share programs, and so prevent fishery managers from using them to end overfishing.  It’s not clear why such a moratorium would be so important to the recreational fishing groups supporting the bill; if commercial overfishing is halted, there will be more fish in the water for anglers to catch.  But keeping more fish in the water has never appeared to be such groups’ concern, and some of them have vehemently opposed catch share programs forquite a long time.

Finally, as mentioned above, S. 1520 specifically provides for the use of certain management measures in recreational fisheries, even though such measures may already be employed, and are described in detail by NMFS in its Guidelines to National Standard One.  Given that laws are generally assumed to change the status quo—after all, if no change was intended, why did anyone need to pass such a law?—there remains a risk that a court may construe such language to mean that the specified measures are intended to replace, rather than augment, annual catch limits.  Should that happen, overfishing will likely result.

That’s the bad news.

But it’s only part of the peril.

S. 1520 isn’t, as a whole, a good bill.  It does have a few good provisions, surrounded by a lot of equivocal language and some remaining bad sections.  

That would be fine if it just represented a starting place in the debate.

But what everyone needs to understand is that S. 1520, as approved by Committee, probably represents the high point of the Modern Fish Act.  After this, things are likely to head sharply downhill.

Remember that, in order to reach the President’s desk, identical versions of a bill must pass both houses of Congress.  While a version of the Modern Fish Act, designated H.R. 2023, has been introduced in the House of Representatives, that bill is very different, and far worse, than the version of S. 1520 that was introduced in the Senate, much less the revised bill that was voted out of Committee.  It not only retains all of the bad language that was removed from S. 1520, but also includes even worse provisions that never made it into the Senate bill, such as multiple exceptions to the annual catch limit requirement an a permanent moratorium on catch share programs in the South Atlantic and Gulf of Mexico.

H.R. 2023 and S. 1520 are very different, so if both were passed, representatives of the House and Senate would have to meet and agree upon compromise legislation that reconciled the differences.  There is absolutely no doubt that any such compromise would include some, and possibly most, of the bad language of H.R. 2023, and so significantly impair Magnuson-Stevens’ ability to conserve and rebuild fish stocks.

Unfortunately, that is neither the worst nor the most likely scenario.

Many of H.R. 2023’s provisions were instead incorporated into H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.  That’s a long title to keep repeating, so you can feel free to refer to the bill as the “Empty Oceans Act,” a name bestowed upon it by the conservation community, because of the impact that it would probably have on fish stocks and marine habitats.

There’s a real possibility that the now only moderately malign S. 1520 will, like H.R. 2023, be folded into a larger Magnuson-Stevens reauthorization bill.  Should such a bill pass in the Senate, and should H.R. 200 pass in the House, those bills would also end up being reconciled in conference; whatever compromise finally emerged would undoubtedly retain enough of H.R. 200 to badly weaken Magnuson-Stevens’ conservation and management provisions.

That, too, would clearly be bad, but the ultimate nightmare scenario wouldn’t involve a Magnuson-Stevens reauthorization bill passed by the Senate.  Instead, it would see S. 1520 and H.R. 200, with its Modern Fish Act provisions, referred to a conference committee, even though S. 1520 was never intended to be a reauthorization bill.

Should that be done, the Magnuson-Stevens reauthorization would be effectively written by the conference committee, using H.R. 200 as their only model.

It’s hard to imagine anything good coming out of that.

Thus, S. 1520 must be viewed in the proper context.

While the bill may be better than it was, it’s still flawed, and its passage would be accompanied by many possible perils. 

The true promise of the legislation lies not in the bill, but in the bipartisan cooperation that shaped it into the form that emerged from committee. 

Instead of passing S. 1520, the Senate should expend every effort to preserve spirit of bipartisan cooperation that gave the bill its current form, and in that spirit, produce a comprehensive, bipartisan Magnuson-Stevens reauthorization bill that addresses the needs and concerns of every sector, not merely one, a bill that will better assure that all United States fishermen enjoy healthy fish stocks, and not empty oceans, well into the future.