MID-ATLANTIC HARVEST CONTROL RULE MAKES AN AWKWARD DEBUT, PART II: CONFUSION AT THE COUNCIL

 

Each year, before the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board) meet in December to set the recreational specification for the next fishing season, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee), made up of scientists from the National Marine Fisheries Service (NMFS), the ASMFC, and the affected states, reviews the relevant data and provides management recommendations.

In 2022, for the first time, the Monitoring Committee based such recommendations on the Control Rule’s outputs. That required the Monitoring Committee to first determine what the 2023 recreational landings were likely to be if 2022 management measures remained in effect. To help in that determination, the Monitoring Committee had access to two new management models.

One, the Recreational Demand Model (RDM), was developed at NMFS’ Northeast Fisheries Science Center (Science Center), and considered factors that included regulations, the relative size and availability of summer flounder, scup, and black sea bass, and angler preferences with respect to harvest and discards. The other, the Recreational Fleet Dynamics Model (RFDM), was developed by the Rhode Island Department of Environmental Management (DEM), and focused on management measures, although other factors also played a role.

 

In making its recommendations to the Council and Management Board, the Monitoring Committee assumed that it could use whichever of the models seemed more appropriate; it ended up using the RFDM to guide management actions for scup and black sea bass, and the RDM to inform summer flounder management.

Control Rule Complicates Scup Debate

When the RDFM was used to project 2023 scup landings, it predicted that such landings would be 14.42 million pounds. Because of the uncertainties inherent in the projection process, the “confidence interval” (CI) around such estimate was very wide; the best the Monitoring Committee could say was that, while landings probably wouldn’t exactly equal the 14.42 million pound figure, there was an 80% probability that they would fall somewhere between 8.95 and 23.08 million pounds.

 

The 2023 recreational harvest limit (RHL) is 9.27 million pounds, which just barely fell within the lower bound of that CI. Because the scup stock is deemed to be “very large,” with spawning stock biomass more than 150% of the target, the Control Rule called for recreational landings to be increased by 10%. Yet recreational landings were already well above the 2022 RHL; if the commercial fishery caught its entire quota, the 10% increase could lead to overfishing.

 

National Standard 1, included in the Magnuson-Stevens Fishery Conservation and Management Act (MSA) states that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. [emphasis added]”

 

In 2000, a federal appellate court interpreted that language in Natural Resources Defense Fund v. Daley. It found that, in order to pass legal muster, a fishery management measure must have at least a 50% probability of preventing overfishing, and observed that “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as succeed offers a ‘fairly high level of confidence'” that overfishing will not occur.

 

Yet, while the Monitoring Committee acknowledged that a 10% increase in recreational scup landings could lead to overfishing, it expressed little concern, merely commenting, “given recent trends in commercial harvest it is not expected that the commercial sector will harvest the full commercial quota and therefor it is less likely that the scup fishery will exceed the OFL in 2023. [emphasis added]”

 

“Less likely” is not synonymous with “unlikely;” absent a 50% probability that overfishing would not occur in 2023, an increase in scup landings would not have satisfied the requirements of Natural Resources Defense Fund v. Daley, and might well have taken the Council on its first trip to Bizarro world in more than 20 years.

 

That eventuality was avoided when, on December 8, Mr. Pentony sent another letter to the Council, which advised that the Greater Atlantic Regional Fisheries Office (GARFO) considered the RDM, and not the RFDM used to set the scup specifications, to be the best scientific information available, and that the RDM must be used to set specifications for all three species.

 

Mr. Pentony repeated that directive at the December 13 meeting. It led to some consternation, particularly from representatives of ASMFC and the DEM, for the scientific peer review which led GARFO to choose the RDM over the RFDM had taken place in September 2021; GARFO’s failure to provide earlier notice of its decision led to both ASMFC and DEM staff wasting time and resources, over the course of more than one year, working to improve a model that GARFO did not approve.

Issues of timing aside, when the RDM was used to calculate 2023 management measures, it projected that 2022 recreational measures would produce landings of 14.31 million pounds, within 1% of the RDFM’s projection, but the CI was much narrower, 11.55 to 16.26 million pounds. That resulted in the 2023 RHL falling below the lower bound of the CI. Under such circumstances, the Control Rule called for a 10% decrease in landings instead of an increase, and substantially reduced the likelihood that overfishing would occur.

 

Had the Council and Management Board employed the methodology used in previous years, anglers would have been facing a decrease of between 35% and 47% in 2023. Thanks to the Control Rule, they were only facing a 10% reduction, and a harvest target of 12.88 million pounds, 3.61 million pounds above the RHL that would otherwise serve as a cap on recreational landings.

 

Even such smaller reduction was unacceptable to some Council and Management Board members, while a party boat captain in the audience complained that the 15-fish bag limit recommended by the Monitoring Committee would put his industry out of business. Adam Nowalsky, who represents New Jersey on the Council and is also New Jersey’s Governor’s Appointee to the Management Board, made a motion to maintain recreational landings at the status quo, which would have effectively negated the Control Rule’s advice.

Such motion drew an immediate response from Mr. Pentony, who stated, “This motion is inconsistent with the Magnuson Act. Point blank.” He made it clear that the motion, if passed, would not be approved by NMFS, and further noted that the agency was still “working through” the Control Rule concept; should the Council adopt a management measure that was contrary to the MSA’s dictates, it could affect NMFS’ final decision on the Control Rule.

After long discussion, Nicola Meserve, a Massachusetts fishery manager who sits on the Management Board, made a substitute motion to achieve the 10% reduction through federal regulations that maintained a 10-inch minimum size, but reduced the bag limit from 50 to 40 fish, and adopted a closed season that runs from January 1 through April 30. States would have to adopt whatever measures would be needed to achieve a 10% reduction in their local waters, where over 90% of the scup were caught. New York’s Paul Farnham made a similar motion for the Council.

The motion made by Ms. Meserve and Mr. Farnham was ultimately adopted by both the Council and the Management Board, yet such adoption demonstrated many of the problems associated with the Control Rule.

Scup Bare the Control Rule’s Faults

The methodology used in the past was simple to apply and intended to keep recreational harvest at or below the RHL. It began with the Council’s Scientific and Statistical Committee (SSC) setting the allowable biological catch (ABC), as required by the MSA. The ABC was then divided between the commercial and recreational sectors according to a pre-established allocation which established the sector annual catch limits (ACLs). An estimate of the scup which would die after being released was subtracted from the recreational ACL to determine the RHL. Recreational management measures, intended to keep catch at or below the RHL, were then developed.

 

When management measures are set pursuant to the Control Rule, there is no effort to keep landings below the RHL. As demonstrated by the scup debate, the landings target can swing from a 10% increase to a 10% decrease not because of any difference in stock status or fishing effort, but merely because of managers’ decision to use the RDM or RDFM. Even such 10% increase or decrease in landings appears to be completely arbitrary. It is a pre-determined value, and not the result of a calculation based on the status of the stock and/or the performance of the fishery; there is no convincing explanation of why a 5% or a 20% change would not serve as well, although the ASMFC tried to justify the choice by explaining “The rationale behind this alternative is that a reduction is needed to ensure that continued overages do not contribute to overfishing as required by the MSA; however, the assumption is that the reduction need not be greater than 10% per cycle given that biomass is very high compared to the target. An analysis of potential impacts on stock status under this…has not been performed. [emphasis added]”

 

The landings targets generated by the Control Rule seem to be not only arbitrary, but unrelated to the dictates of the MSA. While the law requires that each regional fishery management council “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee,” which recommendations generally take the form of an ABC, the Control Rule’s mandated increases or reductions take no account of either the ACL or ABC and, as the Monitoring Committee’s initial scup recommendation suggests, may lead to increases that, when combined with commercial landings, could even exceed the overfishing limit (OFL).

Probably Unfair and Possibly Causing Overfishing

When the Council and Management Board turned to black sea bass, additional issues arose.

Both the RDM and the RFDM indicated that a 10% landings reduction was needed although, even with such reduction, the 2023 recreational harvest target exceeded the RHL. Similar to the situation with scup, the 10% reduction was far less than the 45% reduction that would have been required under the former system of setting recreational measures.

That difference led to one Council member from North Carolina, Dewey Hemilright, to point out a seeming inequity created by the Control Rule. If the commercial fishery exceeds its harvest limit in any year, it is subject to a pound-for-pound payback in a following season, but the Control Rule seems to condone recreational overharvest by establishing targets that clearly exceed the RHL. Viewing that as unfair, Mr. Hemilright asked how commercial fishermen could also “get something” out of the new approach to fishery management, and followed that with the question, “When does the commercial side get an extra bump?”

No one provided a satisfactory answer to Mr. Hemilright’s question.

Mr. Hemilright then asked whether black sea bass were experiencing overfishing as a result of recreational overages. Michael Luisi, the Council’s Chair, could only respond that, “in time,” managers will learn whether the Control Rule will lead to overfishing, but that it’s impossible to say for certain whether overfishing is occurring now; he commented that the 2023 recreational landings target generated by the Control Rule does fall within the bounds of the CI, and so creates no issue.

While that may be true in a strictly Control Rule context, in the context of National Standard 1, which unequivocally states that “management measures shall prevent overfishing,” adopting a recreational harvest target, without first determining whether such measure will lead to overfishing, would appear to be inconsistent with the law.

The black sea bass management measures recommended by the Control Rule were, nonetheless, adopted.

Better Accuracy Does Not Necessarily Equal the Best Available Science

The final conundrum arose when the Council and Management Board turned to summer flounder.

Unlike scup and black sea bass, summer flounder are deemed to be at “low” abundance, which for purposes of the Control Rule means that spawning stock biomass is below the target level, but the stock is not yet overfished. The RDM originally suggested that 2023 landings be increased by 10%, because the 10.62 million pound RHL fell above both the 8.38 million pound projection of 2023 landings and the upper bound of the CI surrounding such projection.

 

But just before the December 13 meeting, such advice changed. Staff at the Science Center had re-run the RDM, this time including five years of data, rather than merely the 2021 data that was initially used. The new data resulted in a 2.5 million pound increase in projected 2023 landings. That shifted the advice from a 10% landings increase to a 10% landings decrease.

 

It also led to a new debate, which began when Mr. Nowalsky asked whether the Council could base 2023 management measures on either run of the model, and still feel confident that it was using the best available science. Mr. Pentony replied only that the Council’s decision must be based on the RDM. He admitted that he didn’t know why two different results were presented to the Council and Management Board, and appeared indifferent as to which results were used.

A Science Center biologist, Dr. Andrew Lou Carr-Harris, explained that the model was initially run, using only 2021 data, immediately after all needed coding and development was completed. There was no time to analyze the results before the Monitoring Committee needed to put them to use. He later re-ran the RDM using five years of data, which yielded results which Dr. Carr-Harris initially described as “greatly improved.” Later in his explanation, he reiterated that the “accuracy greatly improved” when he input the additional data, going on to say that such accuracy “increased drastically.”

 

But when Emerson Hasbrouck, the Governor’s Appointee from New York, asked which of the runs represented “the best scientific information available,” no one offered a clear answer, despite Dr. Carr-Harris’ assurances that the output resulting from five years of data was, by far, the most accurate.

Mr. Luisi said that maybe the Council and Management Board ought to take the two different results and “meet in the middle.” John Manascalco, a New York fisheries manager, admitted that he was “uncomfortable with direction this conversation is going,” when it seemed that many around the table were giving equal weight to the one-year and five-year outputs. Such comment seemed to have little impact, as Mr. Nowalsky moved for status quo management measures, a motion that, he claimed, split the difference between the two model runs.

Toni Kearns, Director of the ASMFC’s Interstate Fishery Management Program, pointed out that the Control Rule did not allow for a status quo option when stock abundance was deemed to be “low.” She observed that the Control Rule, as adopted by the Council and Policy Board, was “pretty specific” as to what management actions were authorized.

Mr. Nowalsky focused on Mr. Pentony’s seeming indifference to the issue, observing that, “Unlike this morning, no one has stood up and said, ‘I don’t want to do this,’ or ‘We can’t do this.'” He admitted that Ms. Kearns was correct in stating that the Control Rule didn’t authorize status quo management measures when the stock was at low abundance, but also pointed out that it did authorize status quo under other situations (i.e., when stock abundance is deemed to be “high”).

In the end, Mr. Nowalsky’s motion was approved by the Council without opposition, and was also adopted by the Management Board, with only New York voting against.

Is There a Better Way?

In her May 27, 2022 memo to the Council’s executive director, Ms. Beatty wrote that Council staff recommended, instead of adopting the Control Rule, that the Council “1) set recreational measures for two years at a time, 2) use improved statistical methods for predicting the impacts of measures on harvest and discards, and 3) incorporate considerations related to variability and uncertainty in the recreational data.” She further noted that

 

Under the staff recommendation, the only required modifications to the [fishery management plans] would be to allow recreational measures to be set for two years at a time. Council staff do not support modifying the [fishery management plan] to require use of specific statistical methods when setting measures as this can limit the flexibility to adapt to changing circumstances and improved methods…improvements to these methods can and are being made without changes to the [fishery management plan].

But as previously noted, GARFO rejected such advice.

Ms. Beatty’s memo offered a simple approach to improving recreational fishery management without any need to adopt the Control Rule. A simpler approach, which could have achieved most of the Control Rule’s goals while leaving the existing management process intact, would have been to merely account for management uncertainty when setting recreational management measures.

The National Standard 1 Guidelines published by NMFS state, “Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting, misreporting, underreporting of catches, lack of sufficient inseason management, including inseason closing authority, or other factors.”

 

Such guidelines also state that “[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that ACL is not exceeded. An [annual catch target] is an amount of annual catch of a stock or stock complex that is the management target of the fishery, and accounts for the management uncertainty in controlling the catch at or below the ACL…” The guidelines advise that “If an Annual Catch Target, or functional equivalent, is not used, management uncertainty should be accounted for in the ACL.”

Unfortunately, while the MSA requires that national standard guidelines be developed and published, it also states that such guidelines “shall not have the force and effect of law.” While adopting an annual catch target (ACT) could have accounted for uncertainty in recreational data and provided far greater stability and predictability in recreational management measures, the Monitoring Committee never recommended such ACT for summer flounder, scup, black sea bass, or bluefish. Instead, it regularly ignored the management uncertainty inherent in those fisheries, and recommended RHLs equal to the recreational ACLs, less estimated dead discards, for each stock.

By ignoring management uncertainty and setting RHLs that equal to the recreational ACL (as adjusted for dead discards), the Council and Management Board were able to maintain landings at the highest possible level; while an ACT might have addressed uncertainty and provided regulatory stability, it would also have led to a lower RHL, and resultant criticism from the angling industry and its allies in the angling press.

The Control Rule, despite its inherent complexity and its seeming inability to constrain landings to or below the ACL, was seen as a preferable option.

Public Comment Sought

The Council decided to employ the Control Rule to set recreational management measures, although NMFS had not even published proposed regulations before the December 13 meeting took place. Such proposed rules have now been released, and NMFS will be accepting public comments on the Control Rule through January 17, 2023.

 

Anyone concerned with the long-term health of mid-Atlantic fish stocks is encouraged to provide their thoughts.

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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/

 

MID-ATLANTIC "HARVEST CONTROL RULE: MAKES AN AWKWARD DEBUT, PART i: A HASTY BEGINNING

 

When the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Interstate Fishery Management Program Policy Board (Policy Board) met in joint session on June 7, 2022, they approved the so-called “Percent Change Approach” to a “Harvest Control Rule” (Control Rule) which will be used to manage summer flounder, scup, and black sea bass, as well as to manage bluefish, once that overfished stock is rebuilt.

 

As described in a Council press release,

 

Under the selected approach, managers will consider two factors when determining whether recreational measures should be restricted, liberalized, or remain unchanged for the next two years. First, they will look at how recreational harvest limits (RHLs) for the next two years compare to recent estimates of recreational harvest. This gives an indication of whether recreational harvest is likely to exceed the RHL if recreational measures remain unchanged. Next, managers will consider the most recent estimate of stock size relative to the target stock size. These two factors, in combination, will be used to determine the percentage change in harvest that management measures should aim to achieve.

That might sound like a simple approach, but when the Control Rule was first put to use at the December 13, 2022 joint meeting of the Council and the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board), things didn’t go smoothly at all.

Given the haste and unanswered questions that plagued the Control Rule’s adoption, such problems were probably inevitable.

Scientific Reservations

In the spring of 2022, the Council’s Scientific and Statistical Committee (SSC) created a subcommittee of experienced fisheries scientists, who were asked to examine the several proposed versions of the Control Rule, and provide their opinions on the potential benefits and risks. That proved to be an impossible task, as the subcommittee lacked information that it needed to make a meaningful evaluation. So, instead of endorsing the Control Rule, the subcommittee produced a report which concluded, in part, that

 

the actual efficacy of the proposed alternatives in the Addendum/Framework is unknown. This uncertainty comes from two sources. First, the actual measures that will be taken in response to any of the triggers identified in the Addendum/Framework are not specified. Until such specificity is provided, quantitative evaluation of the performance of the options is not possible. Second, performance of the discontinuous nature of the options proposed in the Addendum/Framework has not been proven effective in other fisheries nor formally evaluated, to the knowledge of the sub-committee. Preliminary modeling conducted by the sub-committee to evaluate the binning of population states, reliance on various metrics of stock condition and recent catch history, and implications of recruitment could result in an increased risk of overfishing and becoming overfished. This suggests that the appearance of precision in the process that leads to regulatory specifications does not necessarily translate into precision in catch performance and compliance…

Comments were even more pointed during subcommittee discussions held on April 29, 2022.

Dr. Lee Anderson, a subcommittee member, bluntly stated that if he was peer reviewing the Control Rule as a submission to an academic publication, his response would have simply been “reject and resubmit.” He advised the subcommittee that “I think that we should send it back…I don’t think we should say anything but ‘Come back and do your homework.'”

Another subcommittee member, Dr. Alexei Sharov, noted that “The proposed document is not considering at all the efficiency of the tools that we have,” which were already being used to manage the mid-Atlantic’s recreational fisheries.

Later in the meeting, Dr. Anderson made what might have been the most damning comment of all, observing “I’m very concerned that if this [Harvest Control Rule] goes forward, it’s going to give the impression that there’s science involved.”

The comments of Council staff present at the subcommittee meeting probably did little to increase the subcommittee’s confidence in the Control Rule. When asked how the Control Rule would constrain landings to the acceptable biological catch (ABC), as the Council and NMFS are legally bound to do, Julia Beatty, who headed the Council’s Fishery Management Action Team, responded that she couldn’t definitively state “Yes, this will not exceed ABC.”

Ms. Beatty went on to note that the Control Rule’s emphasis was not on the ABC, but on not exceeding the overfishing limit (OFL). Later in the meeting, she informed the subcommittee that, pursuant to the Control Rule, management measures might not be “directly connected” to the recreational harvest limit (RHL), and that by adopting the Control Rule, the Council and NMFS were “not really proposing to tie [management measures] directly back to a change in the ABC or something like that.” She also stated that, under the management approach used to set measures through the 2022 season, the RHL and annual catch limit (ACL) “scale up and down,” but under the Control Rule, management “measures won’t change with changes in the ACL.”

Yet, regardless of any concerns or reservations that the members of the subcommittee might have expressed, the Council moved forward with the Control Rule, even though Council staff advised against its adoption, saying,

 

Council staff do not recommend implementation of the Percent Change, Fishery Score, Biological Reference Point, or Biomass Matrix Options…as they reduce the flexibility managers currently have to set measures to prevent overfishing…

…measures recommended by the Council must prevent recreational ACL overages in order to prevent overfishing and comply with the law…Options B-E will not change the process for setting ACLs and they will not change the requirement to prevent ACL overages. Therefore, Options B-E could require frequent changes in measures unless managers are willing to set more restrictive measures to allow for stability while preventing ACL and RHL overages.

However, the National Marine Fisheries Service’s (NMFS’) Greater Atlantic Regional Fisheries Office (GARFO) insisted that the Council move forward with the Control Rule. Michael Pentony, the regional administrator, wrote a letter that urged the Council to “lead on a course of action that will meaningfully improve the methods used to set management measures,” and followed up with the threat that “In the absence of meaningful action, NOAA’s National Marine Fisheries Service may be required to make regulatory changes under our own authority.”

 

Unseemly Haste

Over the previous months, some Council and Policy Board members suggested that no action could be taken on the Control Rule until two supporting models, which the ASMFC’s Plan Development Team and the Council’s Fisheries Management Action Team deemed “critical for thorough analysis of the options,” and said “would greatly improve the process for setting management measures,” were completed and ready for use.

But Mr. Pentony repeatedly expressed his concern that, if the Control Rule wasn’t approved at the June Council meeting, there wouldn’t be time to move it through the federal rulemaking process quickly enough for a final regulation, authorizing the Council’s use of the Control Rule to set 2023 management measures, to be issued prior to the December 13 meeting.

Such haste characterized much of the Control Rule’s development. Although it represented the biggest change in mid-Atlantic recreational fisheries management since the passage of the Sustainable Fisheries Act of 1996, the Council elected to fast-track the measure as a “framework” to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and the Bluefish FMP, rather than as a plan amendment.

 

By using the framework process, the Council was able to avoid the need to hold public hearings, and so severely limited the opportunity for public comment prior to the Council’s vote on the Control Rule. The ASMFC’s decision to address the Control Rule in an addendum also provided less opportunity for public input, although the ASMFC did, at least, hold one round of hearings, and shared the resulting comments with the Council.

As it turned out, such haste was entirely unnecessary.

No Regulation? No Problem

When the Council and Management Board met on December 13 to discuss summer flounder, scup, and black sea bass management measures for the upcoming season, NMFS had not yet issued a final regulation that approved use of the Control Rule to manage those species. In fact, even proposed regulations relating to the Control Rule were not released until two days after that meeting.

 

The long delay between the Council’s decision to adopt the Control Rule in June, and the issuance of proposed regulations more than six months later, strongly suggests that someone in the NMFS legal or administrative hierarchy had real reservations about such management approach.

Nevertheless, even in the absence of proposed regulations, the Council decided to use the Control Rule to manage summer flounder, scup, and black sea bass in 2023. GARFO did not object, and so made it appear that its previous insistence that the Council adopt the Control Rule in June, in order to have a final regulation in place by December, was unnecessary, and that it could have allowed the Council more time to consider the issue.

Given events at and before the December 13 meeting, taking a little more time to consider the Control Rule would have undoubtedly proved beneficial.

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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/

HERRING LAWSUIT COULD THREATEN NATIONWIDE CONSERVATION EFFORTS

 

Nearly forty years ago, the United States Supreme Court decided Chevron U.S.A. Inc. v. Natural Resources Defense Council, handing down a decision that created one of the most important principles of administrative law, which has since been called the “Chevron Doctrine.”

Chevron v. NRDC involved a challenge to the Environmental Protection Agency’s interpretation of the phrase “stationary sources” of air pollution, which appears in the Clean Air Act.  The statute itself did not provide a clear definition, so the EPA adopted a definition which would satisfy the agency’s policy goals.  The Natural Resources Defense Council, believing that the EPAs definition was inconsistent with the purpose of the law, brought litigation, seeking to have the court, rather than the EPA, determine legislative intent.

The Supreme Court sided with the agency, issuing a decision which read, in part

“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.  First, always, is the question whether Congress has directly spoken to the precise question at issue.  If the intent of Congress is clear, that is the end of the matter…If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation.  Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute…

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation…Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.  In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…

“[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.  While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for the political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of an agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress the challenge must fail…”

The Chevron Doctrine has been relied on by administrative agencies ever since, and has been widely applied to agency decisions that impact every phase of human activity, including fisheries management and far broader air, water, and land use issues.  Abrogating the doctrine would make it far more difficult for agencies to operate, and cripple many efforts to regulate potential harmful activities.

Yet that is just what some New Jersey herring fishermen are trying to do.

Loper Bright Enterprises v. Raimondo involves what the trial court described as “a collection of commercial fishing firms headquartered in southern New Jersey that participate regularly in the Atlantic herring fishery,” which challenged a final rule issued by the National Marine Fisheries Service, the so-called New England Industry-Funded Monitoring Omnibus Amendment which, among other things, implements a mandatory industry-funded observer program in the Atlantic herring fishery.

The plaintiffs alleged that the adoption of the final rule was procedurally flawed, that it violates provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and that the industry-funded monitoring requirement constitutes an unconstitutional tax.  They are represented by the Cause of Action Institute, which bills itself as

“a 501(c)(3) oversight group advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”

As such blurb suggests, it champions right-wing causes, including the weakening of regulatory protections of publicly-owned natural resources, in order to increase commercial exploitation.

The frightening thing is that, in the Loper Bright matter, they just might succeed.

Loper Bright didn’t fare well at the trial level, where the court noted that, pursuant to Magnuson-Stevens, fishery management plans may

“require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting the data necessary for the conservation and management of the fishery,”

and cited another court’s decision, which recognized that

“Fisheries regulation requires highly technical and scientific determinations that are within the agency’s expertise, but are beyond the ken of most judges.”

Applying the Chevron Doctrine to the facts of the case, as well as considering many other arguments in the course of a long and detailed decision, the trial court ruled against the plaintiffs.

Looper Bright didn’t fare any better in the Court of Appeals, where the issues in controversy were narrowed down to plaintiffs’ claims that Magnuson-Stevens does not state that the industry may be required bear the cost of at-sea monitoring, and claims that the process used to promulgate and approve the final rule was improper.

The majority on the appellate panel engaged in an extensive Chevron analysis, and again ruled against the plaintiffs.  But one judge disagreed, and wrote a dissenting opinion.

The dissent claimed that

“Congress unambiguously did not”

authorize NMFS to require vessels engaged in the herring fishery to carry industry-funded monitors.  It argued that

“Congress’s silence on a given issue does not automatically create such ambiguity or give an agency carte blanche to speak in Congress’s place.  In fact, all else equal, silence indicates a lack of authority.

“That means that when an agency’s action is challenged, it is not the challenger’s job to show that Congress has specifically prohibited the challenged action.  Holding challengers to that burden would be ‘entirely untenable.’  Instead, an agency must positively demonstrate where Congress explicitly or implicitly empowered it to act…

“Even if the Fisheries Service had found a few outliers, it is not usual to require a regulated party to pay the wages of its monitor when the statute is silent.  Nor is it expected.  In short, it is not the type of thing that goes without saying.  And Congress didn’t say it.”

The dissent then went on a fairly wild flight of imagination, seeking to justify the view that language in Magnuson-Stevens, which states that fishery management plans

“may prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,”

is not an implicit authorization of industry-funded monitors, writing

“the logic of the Fisheries Service’s argument could lead to strange results.  Could the agency require the fishermen to drive regulators to their government offices of gas gets too expensive?  Having the agency officials at work may be “appropriate” for “management of the fishery.”  Yet I doubt that Congress meant to allow for free fishermen chauffeurs.

“Or what if Congress was to entirely defund the compliance components of the Fisheries Service—could the agency continue to operate by requiring the industry to fund a legion of independent contractors to replace the federal employees?  That generous interpretation of ‘necessary and appropriate’ could undermine Congress’ power of the purse.  So although the words ‘necessary and appropriate’ may be broad, they cannot be as limitless as the Fisheries Service suggests…”

Such language may seem extreme and a little ridiculous, but it is nonetheless the language of a federal appellate judge.  More than a few judges have been appointed to the highest courts in the country because they appear to support equally ridiculous positions, that are favored by various industries and so by the members of Congress who curry such industries' favor.

Looper Bright Enterprises has now filed a petition for certiorari to the U.S. Supreme Court, where the Chevron Doctrine has been under siege by some justices, and appears to have fallen into some disfavor, although it has not yet been overruled.

Should the Supreme Court grant the petition, and so agree to hear the case, it would be a very strong sign that the majority intends to either severely limit or overturn Chevron.

Should that occur, federal agencies, including those charged with protecting clean air and water, and with conserving natural resources ranging from timber to migratory birds to endangered species, will be badly handicapped, and find it very difficult to adequately perform their tasks.

Which, of course, is exactly what the many industry-friendly organizations supporting the Looper Bright plaintiffs intend.

If they prevail, marine fish stocks will comprise a relatively small part of the resulting casualties.

 

 

THE FISHERIES FIGHTS OF 2023

 

2022 is over, but many of the fisheries issues that first arose then have carried over into the new year.  Other management actions are scheduled to occur within the next 12 months and, as always, new issues will arise; some of those will be expected while others will catch us by surprise, but all will have to be dealt with.

The following are a few things that are already on the horizon.

STRIPED BASS:  The Atlantic States Marine Fisheries Commission’s  Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan

Those of us in New England and the mid-Atlantic regions are going to have to hit the ground running this year, as the comment period for Addendum I ends at 11:59 p.m. on January 13.

As I mentioned in a post last November, Addendum I would end the prohibition on the interstate transfer of commercial striped bass quota, and has the potential to increase commercial bass landings by 30 percent or more.  That would clearly be a bad thing to happen at a time when the overfished striped bass stock is struggling to rebuild by the 2029 deadline, and preliminary indications suggest that 2022 recreational landings will more than double those of 2021, raising the specter that the stock might again be experiencing overfishing.

The proposed quota transfers might take one of four prossible forms, which range from unlimited transfers (subject to a 5% “conservation tax” at times when the stock is overfished), to transfers made solely at the discretion of the Atlantic Striped Bass Management Board, subject to any conditions that the Board might elect to impose, with no transfers permitted when the stock is overfished.  While such options differ in the details, all threaten to increase the fishing mortality rate.

The ASMFC held hearings along much of the striper coast in December; additional hearings are scheduled for Thursday, January 5 (a webinar hearing targeting Maryland, Virginia, the District of Columbia, and the Potomac River Fisheries Commission) and for Monday, January 9 (a hybrid in-person/webinar hearing targeting Maine and New Hampshire).

Comments at the hearings held to date have reportedly been heavily weighted against the quota transfers.  The hearing that I attended in New York attracted between 20 and 25 attendees, who were unanimously opposed to such transfers; I was told that the Massachusetts hearing saw approximately 70% of the attendees comment in opposition, and also told that about 90% of the comments at the New Jersey hearing opposed the transfer proposals. 

Delaware saw far stronger support, which was hardly surprising, as the impetus behind Addendum I was Delaware’s claim that current commercial quotas granted that state an unfairly small share of the landings.

Usually, it’s fairly easy to handicap ASMFC actions ahead of the vote, after listening to preliminary debates and considering what each state stands to gain or lose.  The vote on Addendum I is more difficult to predict.  

Maine, New Hampshire, Connecticut, Pennsylvania, and the District of Columbia have nothing to gain from commercial transfers, as they have prohibited commercial striped bass harvest.  The Potomac River Fisheries Commission sees all of its commercial quota come from the Chesapeake Bay, while Addendum I only addresses quota assigned to the ocean fishery; North Carolina, which owns the largest block of unused striped bass quota, has had no commercial striped bass landings in recent years.  Neither has much motivation to support the addendum.  Still, it is possible that some or all of those jurisdictions, which have nothing to gain, will nonetheless feel sympathy or some sense of regional solidarity for Delaware’s plight, and support some form of transfer.

Massachusetts, Rhode Island, New York, Maryland, and Virginia all have active ocean fisheries for striped bass, and all have come close to landing their entire quotas in recent years.  They might, in theory, benefit from quota transfers, but at least some of those states have been leaders in striped bass conservation, and a commitment to rebuilding the overfished stock might lead them to seek a continued prohibition on transfers.

This is one of those issues where managers might be swayed by the weight of public comment, and it would be in the interest of striped bass anglers to send an email in opposition to such quota transfers to comments@asmfc.org, with the subject line “Striped Bass Draft Addendum I” ahead of the January 13 deadline.

STRIPED BASS:  Constraining recreational fishing mortality

As noted above, striped bass landings spiked in 2022, probably because of the large 2015 year class growing into the 28- to 35-inch slot limit, more than doubling landings in 2021.  Such increase undoubtedly increased the fishing mortality rate above the 0.14 figure that underlies the Atlantic Striped Bass Technical Committee’s advice that there is a 78.6% probability that the stock will rebuild by 2029, and could easily have raised the fishing mortality rate above the 0.17 target needed to make rebuilding by such deadline even marginally likely.

Dr. Michael Armstrong, the Massachusetts fishery manager, addressed that point at last November’s Management Board meeting, and suggested that another stock assessment update might be appropriate.  While limited ASMFC resources made such assessment impractical, the Technical Committee and Management Board did agree to look at 2022 landings ahead of the May Management Board meeting, and determine whether such landings exceeded earlier projections.  The implication was that, should the landings exceed the projection by a significant amount, a new management action would be initiated.

While we won’t know whether, or how badly, 2022 landings exceeded projections until next spring, we must be ready to insist not only that such comparison take place, but that, if it is clear that fishing mortality has risen too high, that the Management Board takes prompt action to bring it back to or below target, in order to assure timely rebuilding.

BLUEFISH, SUMMER FLOUNDER, SCUP, AND BLACK SEA BASS:  Comment period on the National Marine Fisheries Services Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and Framework Adjustment 6 to the Bluefish Fishery Management Plan, ends on January 17

Last June, in response to complaints that the historical approach to setting recreational fishery management measures led to constantly changing regulations that reflected neither the health of fish stocks nor the actual level of angling effort (and, let’s be honest, because of the persistent complaints from elements within the angling community, most particularly the party boat industry, that current regulations did not allow them to kill sufficient numbers of black sea bass and scup, both of which remain at very high levels of abundance), the Mid-Atlantic Fishery Management Council and the ASMFC’s Interstate Fishery Management Program Policy Board agreed to adopt something that they called the “Percent Change Approach” to a so-called “Harvest Control Rule.”

I’ve written about the so-called Control Rule before (“so-called” because, as members of the Council’s Scientific and Statistical Committee have pointed out, from a scientific perspective, it really isn’t a control rule at all), and will be coming out with a two-part essay on the topic in the next week or so, which will describe its far too hasty adoption and the confusion that surrounded the Control Rule's recent debut at a joint meeting of the Council and the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board.

I’ve already written about how the Control Rule did not receive a rousing endorsement from the Council’s Scientific and Statistical Committee, nor from a subcommittee that was formed to review it.  One subcommittee member, Dr. Lee Anderson, went so far as to make the damning comment that

“I’m very concerned that if this [Harvest Control Rule] goes out, it is going to give the impression that there is science involved.”

I’ve noted in earlier posts that Council staff advised against the Control Rule’s adoption.

On December 13, at the aforementioned joint meeting of the Council and Management Board, I heard for myself how something as simple as adding additional data to a fishery management model could result in the Control Rule’s advice changing from a 10% increase in summer flounder landings to a 10% decrease, thus casting grave doubt on the claim that such Control Rule allows fishery managers to get a better grasp on the uncertainty inherent in recreational data.

There are thus a lot of red flags suggesting that the so-called “Control Rule” is not yet ready for use.  Those who agree ought to submit comments to NMFS ahead of the January 17 deadline, to help assure that mid-Atlantic fishery management measures really do prevent overfishing and are based on the best available science.

BLUEFISH:  New research-track stock assessment to be released

A new research-track bluefish stock assessment has been completed and peer-reviewed.  It should be released early this year.

I didn’t sit in on the peer-review meeting, so I’m not completely sure what the assessment has found.  Because of their life history, that sees some fish chasing bait into the brackish reaches of rivers while others hunt at the edge of the continental shelf, bluefish are a difficult species to assess.  The point of a research-track stock assessment is to bring new assessment approaches to bear, analyze newly-available data, and investigate previously under-researched aspects of a species’ life history.

Recent bluefish assessments passed peer review, but left many questions unanswered, so scientists have been working since July 2021 to improve the bluefish assessment process.  Bluefish are currently considered overfished, but a rebuilding plan intended to restore the stock within seven years has been put in place.

The new stock assessment will almost certainly affect management measures in some way.  If it finds the stock in better condition than previously believed, measures could be liberalized; on the other hand, if it finds that the stock is in worse condition, or not responding to rebuilding, or that recreational fishing mortality--perhaps because the Mid-Atlantic Fishery Management Council and ASMFC Bluefish Management Board underestimated the number and size of fish that die after being released—is higher than managers thought, measures might be made more restrictive.

Also, with research-track assessments, there is always the risk that a new assessment approach, or the use of a particular set or sets of data, will result in the assessment’s failure to pass peer review, although such failures are relatively uncommon.

Based on what I’m seeing, both inshore and offshore—I haven’t had a bluefish invade my shark slicks since 2017, even though, in some of the places I fish, they used to stack up behind the chum can like goldfish waiting to be fed, and made it very difficult to keep baits in the water—I doubt that the final assessment will bring good news.  But I’ve been wrong on such things before.

Whatever the bluefish assessment reveals, we must just do our best to assure that ensuing management measures are in accord with the best available scientific advice, whatever that advice might be.

GULF OF MEXICO RED SNAPPER:  New stock assessment scheduled for release in July

Few fisheries anywhere on the coast have generated as much recent controversy as the red snapper fishery in the Gulf of Mexico.  While management measures adopted to regulate the commercial sector, as well as the for-hire subsector of the recreational fishery, have managed to both constrain landings to sustainable levels and increase fishermen’s accountability, the private-boat recreational sector has continued to exceed its quotas, at least in certain states, all the while condemning the federal management system and demanding to kill even more.

Various organizations closely connected to the recreational fishing industry convinced legislators, a few years ago, to fund a research project they called “The Great Red Snapper Count.”  It found that the adult red snapper population in the Gulf of Mexico is about three times as large as previously calculated, largely because two-thirds of those fish are scattered over very broad expanses of low-profile bottom, rather than being concentrated on hard, higher-profile structure where previous surveys took place.  However, the conclusions of that study incorporated significant uncertainty, so red snapper quotas, for both the recreational and commercial sectors, were not increased anywhere near as much as the Count’s proponents expected. 

The upcoming stock assessment, designated “SEDAR [for SouthEast Data, Assessment, and Review] 74,” is scheduled for peer review beginning on June 1 and for release a month later, will be the first to fully analyze and incorporate the findings of the Great Red Snapper Count.  It’s not unreasonable to believe that the Count’s proponents are expecting a big, if belated, increase in the Annual Catch Limit, and more liberal recreational regulations, as a result.

However, there has also been a lot of buzz coming out of the Gulf of Mexico commercial and recreational fishing communities that suggests that Gulf red snapper, or at least snapper of any size, are getting harder to find, particularly after the recreational fishing season has been open for a couple of weeks.  Boats are reportedly being forced to run ever farther offshore to find larger fish.  If those stories are true—and I’ve heard from friends in the charter boat community, who fish both ends of the Gulf, who they are—then folks expecting more permissive regulations might be in for a big and unpleasant surprise.

However, as is also the case with bluefish, the most important follow-up to the red snapper assessment is to work to assure that management measures follow the science, and not political whims.

FEDERAL LEGISLATION:  The odds are against significant progress

There are a lot of things that Congress can do to improve the fisheries management process and thus the long-term prospects of the nation’s fish stocks.  But the odds are fairly good that such things won’t get done over the next two years.

For the first weeks—and maybe many months—of the 118^th Congress, we can expect a horror show in the House of Representatives, as a handful of irrational legislators throw stinkbombs that, they hope, will derail the process of naming a new Speaker and, whenever that farce may end, will do their best to push the majority party into wasting its time and taxpayer’s money on attacking federal law enforcement, harassing cabinet officials, and generally engaging in petty revenge against the minority party, instead of doing the job that they’re paid for.  In fact, such nonproductive House members even plan to include senators of their own party on the revenge agenda, refusing to consider Senate bills sponsored by their supposedly same-party colleagues because such senators dared to elevate the needs of their country and fellow citizens above pure party politics.

In the Senate, things might look a little better, but it will still be difficult for a conservation bill to gain the 60 votes that it would require to avoid a filibuster, and there is every chance that, should such a bill make it through the Senate, it would die in a House dominated by people more interested in making political statements than in doing the nation’s work.

So what sort of fisheries bills might we see in the 118^th Congress?

I suspect that we’ll see a forage fish bill, similar to the Forage Fish Conservation Act, H.R. 5770, sponsored by Rep. Debbie Dingell (D-MI), and S. 1484, sponsored by Sen. Richard Blumenthal (D-CT), introduced in one or both houses fairly early in the session.  While it is easy to argue that federal law doesn’t provide forage fish, a critical element of the marine food web, with adequate protections, and while such legislation would probably receive substantial popular and political support, it will be vehemently opposed by the various industrial fishing fleets that profit from catching low-value species in very large quantities, and selling much of their product overseas.  Such opposition will likely be more than enough to kill the bill, particularly given the number of current legislators who elevate short-term economic gains over long-term environmental health.  Even so, a forage fish bill probably has a better chance of passage than anything else that might be introduced.

We may also see one or more bills that are intended to protect both fish and fishermen from the ongoing impact climate change and warming waters.  Again, while such legislation is undoubtedly needed, when the catechism of one party effectively eschews even uttering the phrase “climate change,” much less admitting that such change is taking place, climate change legislation will be dead on arrival.

The good news, if there is any, is that bills that would undercut marine fish conservation are equally unlikely to pass.

I would be shocked if we didn’t see some sort of legislation attempting to overthrow the federal regime managing the recreational red snapper fishery in the Gulf of Mexico.  The angling organizations opposing federal management are well-heeled and politically sophisticated, have capable lobbyists, and contribute to the right legislators, so I would be very surprised if a Republican representative from a Gulf state doesn’t introduce such a bill, and convince his House colleagues to pass it (that is, provided that such colleagues aren so busy doing things like harassing retired federal health experts at bogus oversight hearings that they never get around to considering legislation).  But I would expect such bill to die in the Senate, where it is unlikely to receive 60 votes, unless it can be attached to some sort of must-pass legislation.  Similarly, a red snapper bill introduced in the Senate would probably have a difficult time winning passage.

We may also see someone in the House introduce legislation to reauthorize, and substantially weaken, the Magnuson-Stevens Fishery Conservation and Management Act, which governs fishing in the federal waters of the United States.  Such a bill has been introduced in each session of Congress for at least the past decade, and there is no reason to believe that critics of marine fish conservation are going to stop now.  While it’s just possible that such bill might pass in the House, it would likely die in the Senate, in part because of its negative conservation impacts, and in part because it has appeared, over the past few years, that the Senate is very happy leaving Magnuson-Stevens alone.

Other bills could arise, particularly if a management action somewhere along the coast offends a large enough constituency, and they manage to convince a legislator to force a relevant change in the law.  We might see bills that seek to either authorize or prevent the removal of dams that block anadromous fish from accessing upstream spawning grounds.  We might see bills seeking to outlaw particular types of fishing gear, or to close—or not close—sections of ocean to extractive activities, including some or all types of fishing.

But it won’t be easy for any such bills to pass.

It is likely that the fisheries fights of 2023 will largely be fought on the usual terrain, at the ASMFC, the regional fishery management council, and at the National Marine Fisheries Service.  Congress will probably be a secondary theater. 

Which is fine, for there will still be plenty to do.