ARGUMENTS, EFFORTS OF MAGNUSON-STEVENS OPPONENTS DON'T MAKE SENSE

The current effort to weaken the conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act was launched by a coalition of fishing tackle industry, boatbuilding and anglers’ rights groups in early 2014.  That assault was supported by a report entitled “A Vision for Managing America’s Saltwater Recreational Fisheries,” which was used to generate buzz in the press and outlined a number of alleged flaws in the federal fisheries management system.

The “Vision” report was produced by what its sponsors called a “blue-ribbon panel” that, although a completely private enterprise, was given the grandiose and official-sounding name of “The Commission on Saltwater Recreational Fisheries Management,” which was co-chaired by Johnny Morris, Chief Executive Officer of the Bass Pro Shops sporting goods chain, and by Scott Deal, the President and co-founder of Maverick Boats. 

The report was issued under the aegis of the Theodore Roosevelt Conservation Partnership, an organization who has usually been on the right side of conservation issues, but found itself out of its depth when it entered the salt water fisheries arena, and somehow ended up trying to upend what is arguably the most successful and effective marine fisheries management program in the world.

The key message of the “Vision” report is that the current federal fishery management system is not optimized to serve recreational anglers, and that the federal management system should be amended to more closely resemble the systems that currently exist in several states.  The report claims that

“The National Marine Fisheries Service (NMFS)…is the federal agency responsible for fisheries management in federal waters.  Given its mandated commercial focus, the fact that NMFS has not embraced fisheries management practices that also meet the unique goals, needs and motivations of recreational anglers should come as no surprise.  While the NMFS has made great strides in recent years in improving communications and interaction with the recreational fishing community, much work remains to be done to effectively integrate recreational fishing into its policies and procedures.

“Many state natural resource agencies, especially those in the South, recognize the benefits of a vibrant recreational fishing community and have managed to promote it while conserving their saltwater resources…

“Many coastal states have adopted management models that are well tuned for their particular saltwater fisheries.  These models conserve fishery resources, provide multi-year consistency in regulations and allow for ample public access.  However, these approaches have not yet been embraced by the NMFS, which is a significant contributing factor to the current dilemma in saltwater recreational fisheries management.”

Among the recommendations made in the report was one that Magnuson-Stevens’ current requirement that

“the timeline for ending overfishing and rebuilding fisheries ‘be as short as possible’ and ‘not exceed 10s years’”

be weakened, to give

“the regional councils and fisheries managers greater latitude to rebuild fish stocks in a timely and reasonable manner.”

They argue that states don’t have rebuilding deadlines, and manage their fish better than the federal managers do.

They say that.  But then, some people say that the world is flat, or that they have been “taken” by UFOs; it’s pretty clear that just saying something does not make it so.

Over the last few years, I’ve provided a number of examples where state fishery managers, including “those in the South” that are praosed in the “Vision” report, have failed to properly manage local fisheries.  

Both Mississippi and Louisiana have mismanaged speckled trout, with the latter state seeming to believe that growth overfishing is perfectly fine.  Last month, I wrote about an Internet gag that ended up revealing a truth about a dearth of red drum on the west coast of Florida.

Recent state efforts to manage striped bass and winter flounder hardly provide grounds for confidence, while New Jersey state managers’ successful effort to overturn the Atlantic States Marine Fisheries Commission’s summer flounder management efforts represent a new milestone in the annals of bad fisheries actions.

However, the biggest failure of state managers at ASMFC may be its failed effort to rebuild a depleted tautog population.  ASMFC knew what to do as early as 1996, but never had the will to impose needed measures.  According to a recent document,

“Since the Tautog [Fishery Management Plan] was implemented, in 1996, the resource has experienced changes in stock status, as well as management measures used to control harvest.  Based on the 2015 Benchmark Stock Assessment and Peer Review Report…tautog is overfished and overfishing is occurring on a coastwide scale.”

The state managers that make up ASMFC had plenty of opportunity to correct both problems.  As the same document notes,

“Fishery Management Plan (FMP) (March 1996)

The FMP established a 14” minimum size limit and a target fishing mortality of F=M=0.15.  The target F was a significant decrease from the 1995 stock assessment terminal year fishing mortality rate in excess of F=0.70, so a phased-in approach of implementing these regulations was established…

“Addendum I (May 1997)

In response to northern states’ difficulty in achieving the interim F by their deadline, Addendum I delayed implementation of the interim F and target F for all states until April 1998 or April 2000 depending on the state…

“Addendum II (November 1999)

…Addendum II further extended the deadline to achieve the F=0.15 target until April 2002…”

I could go on, but it would serve no purpose other than to further illustrate the 21-year pattern of delay, and ASMFC’s endorsement of state regulations insufficient to rebuild the stock.  

And it’s not over yet.  Just this month, ASMFC failed to adopt measures that, according to the best available science, were needed to rebuild the tautog population in Long Island Sound.  Instead of the 43% harvest reduction that, according to biologists, are needed to rebuild the population, ASMFC delayed taking action because,

“…The states within the Long Island Sound (LIS) region needed additional time to explore other management strategies that would moderate the severe social and economic impacts and provide flexibility in achieving such a large reduction in fishing mortality.  The two states will also be exploring a more modest harvest reduction, 20-30%...”

It seems that nothing was learned by the failures of the past 21 years, and states still believe that they can overfish their way to the stock’s recovery.  And without the strict rebuilding requirements of Magnuson-Stevens, nothing will prevent them from reliving past management errors, again and again…

Now, there’s news out of the State of Florida, and it involves the same Scott Deal and the same Theodore Roosevelt Conservation Partnership that were behind the “Vision” report.  Only now, they’re not saying positive things about inshore angling down in the Sunshine State.

According to the Miami New Times, Ed Tamson, who represents the Theodore Roosevelt Conservation Partnership in Florida, said

“It’s the tipping point.  Fishing here has gone to hell in a hand basket.”

To be fair, the problem appears to be a sharp decline in water quality, caused by pollution-filled runoff from agricultural operations; attempts to abate such runoff are met with fierce opposition from the politically influential sugar industry.  And as the New Times reports,

“With little reform to water management regulations, water quality has continued to diminish, accompanied by a decline in many fish species.  Recreational anglers have been forced to contract their fishing grounds and pole closer to one another.  With more concentrated fishing, many worry the added pressure will only further decimate the fish population.” 

Scott Deal’s boat manufacturing companies were hit hard as a result, reportedly losing about 80% of their Florida business.  Fishing guides, who don’t have Deal’s option of selling their services outside the state, report losing up to 70% of their customer revenues.

Florida’s fishery managers can’t be blamed for what has proven to be an intractable political fight with the sugar industry.  Even so, how can the various organizations who want to weaken Magnuson-Stevens argue that Florida fishery managers are doing a good job “conserve[ing] fishery resources, provid[ing] multi-year consistency in regulations and allow[ing] for ample public access” when, by the words of one of their own representatives, “Fishing…has gone to hell in a hand basket”? 

And that leads to the biggest question of all.  With the threats that angling is facing from polluted runoff in Florida, a New Jersey-sized hypoxic dead zone—the largest ever seen—in the Gulf of Mexico, and another, larger-than-average dead zone predicted in Chesapeake Bay, why do groups representing the fishing tackle industry, boating industry and some anglers try to weaken Magnuson-Stevens, rather than going after the real problems that hurt anglers on a regular basis?

Magnuson-Stevens has successfully ended overfishing for most species, and has successfully rebuilt about 40 once-overfished stocks in the past twenty years—far more than have been rebuilt by either ASMFC or the states.  Yes, the law constrains recreational harvest, but only to maximize fish abundance, and given that the “Vision” report states that

“What recreational anglers want and need is wide-ranging, dependable access to healthy and abundant fish stocks,”

the report’s authors should logically be Magnuson-Stevens’ greatest supporters.

On the other hand, pollution provides no benefit to anyone but the polluters, and as the New Times article shows, do the fishing and boating industries real harm.  So why aren’t the industry folks, and their fellow travelers in the anglers’ rights community, focusing their rancor—not to mention their lobbyists, their public relations efforts and their political clout—on polluters who degrade our waters, instead of on a good law?

When poor water quality and the resultant decline in both fish stocks are threatening fish stocks, and the angling experience, on multiple coasts, it just doesn’t make sense to attack a law that made fish such as summer flounder, black sea bass and red snapper more abundant than they were in decades.

Because pollution can destroy angling’s future, but only good management, as provided by Magnuson-Stevens, can save it.

WHEN FISHERY MANAGERS FAIL

It’s the middle of summer. Forty years ago, I would have been fishing for cod southeast of Rhode Island.

That might catch some people by surprise, because they think of cod as a cold-water species that only appears off New York and southern New England during the dead of winter. But when the stocks were healthy, that wasn’t the case.

For many years, until the early 1980s, there was a very productive and very active midsummer fishery for cod and other northeastern groundfish on Cox’s Ledge, an area of rough bottom located about 25 miles southeast of Pt. Judith, Rhode Island.

At the time, I did my codfishing out of Galilee, Rhode Island, which supported four party boats that fished for cod on a regular basis: theGail Frances, the Julie C, the Nautican and the Super Squirrel. An extensive charter boat fleet, along with private vessels, also took part in the fishery. Out at Cox’s Ledge, the Rhode Island boats would be joined by a number of similar vessels from Montauk andOrient, New York, along with others from Groton and Niantic in Connecticut.

The boats would be crowded. Even though it was a long ride out to the codfishing grounds—an hour and a half on the fastest boats out of Galilee, twice that long if you sailed out of the other ports—on a typical summer weekday, anglers would line the rails on both sides of the boat. Some were serious codfishermen; others were tourists just out for a day on the water.

Regardless of their relative skill, most would take some fish home. They might catch a half-dozen so-called “market cod,” each less than 10 pounds, or they might latch onto the “pool winner,” a big fish that often weighed more than 50 pounds (the smallest I ever remember weighed 35), and earned them a handful of cash contributed by the other anglers on board.

It wasn’t always—or even typically—the most skilled anglers who won the pool. I never managed to take the prize, although I once had the second-place fish on seven consecutive trips, a feat that earned me nothing but lots of fillets. Often, the winner would be a first-time codfishermen, who would be convinced they were snagged on the bottom, even though the tip of their rod was slowly pulsing up and down…

And it wasn’t just cod that were caught.

Sometimes the pool fish would be a big white hake. Sometimes, on the way to or from the grounds, the captain would softly call for a mate to come up to the bow of the boat, because there was a swordfish finning out that might be harpooned. Anglers who allowed their baits to rest on the sea floor often caught a score of ocean pout, an unattractive bottom-dweller that was generally considered a nuisance fish, but yielded fillets of fine-grained, snow-white meat to those willing to ignore external appearances.

Cox’s Ledge cod trips created some of my fondest angling memories, but that’s an opportunity lost to today’s anglers. The New England Fishery Management Council (New England Council) badly mismanaged the species, never imposing rules strict enough to end overfishing, much less rebuild the overfished stock. The big white hake, though not overfished[1], are largely gone, too. A few are still caught, mostly on deep-water wrecks, but the 50-pound “jelly bellies,” as the Super Squirrel’s captain, Al Jarman, used to call them, now mainly swim in old anglers’ memories. Even the despised ocean pout are overfished, to the point where none may be legally landed[1].

There are still a few cod out on Cox’s Ledge during the summer, but not enough to support a party boat fishery, much less a fishery involving close to a dozen boats from three different states. Today, the cod fishery off New York and southern New England is a cold-weather affair, dominated by hard-core anglers who catch mostly small cod. These days, the pool fish on the boats rarely exceeds 20 pounds, and there are many days when they don’t even weigh half of that.

The loss of the summer cod fishery is difficult to quantify. The revenues lost to the party boats, who can no longer participate in the fishery, must be substantial. But the greater loss was to everyday anglers, who have been deprived of an inexpensive opportunity to catch good-sized, good-tasting fish in the sort of convivial setting that can create lasting memories, and make fishermen want to return.

And, sadly, the summer cod fishery isn’t the only thing that we’ve lost.

In late spring, pollock used to swarm within sight of Block Island. The fishery began a little before Memorial Day, and lasted through the first two weeks of June. The average pollock probably weighed between 15 and 25 pounds, although some were notably larger.

The fish were incredibly numerous. It was usually easy for private boat anglers to get all of the fish that they needed with single-hookeddiamond jigs. The charter boats, which usually wanted to load up with fish for their passengers, would troll so-called “umbrella rigs”that featured four, and sometimes, six arms and as many separate lures, and often hooked more than one pollock at a time, although the fish often managed to fight against one another and, in the process, rip the rigs apart and so gain their freedom.

It was a wonderful fishery, which helped out the for-hire fleet because it occurred in a sort of “shoulder season,” when the summer fisheries were all starting up, but had not yet reached their peak.

But the New England Council mismanaged pollock, too; the Block Island run collapsed by the mid-1980s.

Yet of all the New England Council’s failures, the worst and perhaps the most tragic was winter flounder, particularly what’s known as the Southern New England/Mid-Atlantic stock (SNEMA Stock). While the cod and pollock fisheries required anglers to own a seaworthy boat, or pay a party or charter boat to take them out to the grounds, winter flounder belonged to everyone.

As a boy, I caught them from shore and from local docks, as well as from my father’s boat. We started fishing for them in March, and stopped in December; although summer fishing was slow, there were always some flounder to be had. My wife’s introduction to angling came when her grandfather took her flounder fishing from various party and rental boats. They began fishing as early as February; she remembers catching flounder so early in the season that snowflakes still fell.

Flounder were the ultimate family fish, accessible to and catchable by children too young for kindergarten and elderly anglers who could no longer stand up to the rigors of pursuing other species.

Unlike cod and pollock, flounder spend a part of their lives in shallow inshore waters, where they spawn during late winter and spring. Then most move offshore. They are subject not only to the New England Council while summering in federal waters, but to state managers before, during and immediately after their spawning time.

Thus, both the New England Council and state managers share the blame for the SNEMA Stock’s collapse. The New England Council was no more interested in conserving flounder than they were in conserving other species. It always supported “flexible” management measures that allowed the greatest short-term economic return, and refused to impose an annual catch limit until Congress amended the Magnuson-Stevens Fishery Conservation and Management Act a decade ago, and required them to do so.

State managers were unwilling to take any action more restrictive than what federal managers imposed. In 1999, when there was still time to recover the stock, the Atlantic States Marine Fisheries Commission’s Winter Flounder Management Board refused to require states to impose needed harvest reductions because the New England Council had not also done so.

Thus, the SNEMA Stock collapsed, and again angling opportunities disappeared. In 1986, New York anglers made more than one million trips in pursuit of winter flounder; last year, thirty years later, they only made 74,000 winter flounder trips. The tackle shops, boat liveries and for-hire fleet lost the economic benefits that would have accrued from anglers making nearly a million additional trips every year. Anglers lost a tradition that had been binding fishing families together for generations.

Far too often, fishing-related businesses fight needed regulations, arguing that the rules might harm their incomes.

But as these examples show, the real long-term harm to the fishing industry comes from too few regulations, not from too many.

While placing additional regulations on the cod, pollock and winter flounder fisheries might have caused a little short-term distress, in the long term, the fisheries—and the businesses they supported—would still be there.

Because fishery managers failed to adopt needed regulations, those fisheries are gone, and anglers’ chances to be a part of them are gone as well.

-----

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

BAD COMMERCE DEPARTMENT FLUKE DECISION NOW LOOKS EVEN WORSE

After Commerce Secretary Wilbur Ross decided to overrule the Atlantic States Marine Fisheries Commission’s finding that New Jersey’s 2017 recreational fluke regulations did not comply with the provisions of ASMFC’s management plan, the effectiveness of ASMFC’s cooperative interstate fishery management program was thrown into limbo.

As noted in a press release issued by ASMFC on July 14, ASMFC Chairman Douglas Grout expressed concerns that

“The Commission is deeply concerned about the near-term impact of our ability to end overfishing on the summer flounder stock as well as the longer-term ability for the Commission to effectively conserve numerous other Atlantic coastal shared resources.  The Commission’s finding of noncompliance was not an easy one.  It included hours of Board deliberation and rigorous Technical Committee review, and represented, with the exception of New Jersey, a unanimous position of the Commission’s state members. Our decision was based on the Technical Committee’s findings that New Jersey’s measures were not conservationally-equivalent to those measures in [ASMFC’s management plan] and are projected to result in an additional 93,800 fish being harvested…”

ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee provided fishery managers with a detailed accounting of where New Jersey’s analysis fell short of the scientific standards needed to demonstrate conservation equivalency.  That accounting was forwarded to the Secretary of Commerce, along with other documentation relating to the issue.

Based on the Technical Committee analysis and other data, it was somewhat surprising when Chris Oliver, the Assistant Administrator for Fisheries at the National  Oceanic and Atmospheric Administration, sent a letter to ASMFC stating that it had overruled its noncompliance finding and found in favor of New Jersey.

In finding for New Jersey, Mr. Oliver stated that

“While there is some uncertainty about how effective the New Jersey measures will be, considering the information provided by the State, the Secretary had found that the measures are likely to be equivalent in total conservation as those required [by ASMFC].  [emphasis added]”

Bob Martin, Commissioner of New Jersey’s Department of Environmental Protection, hailed the decision, saying

“We are very pleased that NOAA worked with us to understand our position that sound science and good long-term planning must drive decisions about the management of summer flounder, one of the state’s most important recreational and commercial fish species.”

However, as time passed, news has emerged suggesting that neither “sound science” nor “good long-term planning” had much to do with the outcome.

A recent article in the Boston Globe quoted John Bullard, the regional administrator of NOAA Fisheries’ Greater Atlantic Region Fisheries Office (formerly known as the Northeast Regional Office), who said that he was not even asked for any formal input on the decision, even though his office was responsible for federal summer flounder management.

Mr. Bullard noted that

“This is the first time that no one asked me for a formal recommendation.  The secretary’s decision goes against long-standing protocol, and there’s a cost to that.

“There’s a reason to have regional administrators, because their experience and knowledge is valuable in making decisions like this one.  This is an unfortunate precedent.”

Mr. Bullard’s comments are hard to dispute.  The New Jersey decision represents the first time in 20 occasions spread out over nearly 25 years that a Secretary of Commerce has overruled an ASMFC finding of noncompliance.

And it’s not clear what grounds were used to do so.

The regional administrator was not a part of the decision, and there’s no suggestion that the Northeast Regional Science Center had any significant input, despite their day-to-day familiarity with the state of the summer flounder stock.

Mr. Bullard noted that the

“chain of command was broken with this decision,”

and pointed out that

“This is a system that keeps all states accountable to each other.  We’re now going to have to figure out how to repair that system.”

It appears that such repairs are going to be badly needed.  The Boston Globe quoted Bob Ballou, assistant to the director of Rhode Island’s Department for Environmental Management, asking a critical question,

“Going forward, does this mean states should feel free to act in an autonomous way, regardless of the laws they’re bound by, because there’s a decent chance that the secretary could overturn their decision?”

He noted that

“What the secretary did is very disturbing.”

The Globe quotes Cheri Patterson, supervisor of marine fisheries at the New Hampshire Fish and Game Department, asking another critical question, which could have disturbing implications.

“Protocols have been dismissed here.  There needs to be some clarity whether this was a political decision, and how the secretary made this decision.”

Indeed, there needs to be some clarity.  The federal government has refused to shed any light on the matter, only issuing the ambiguous—and anonymous—statement that

“The long-term sustainability of American fishing stocks, as well as the jobs that rely on them, are of the utmost concern to Secretary Ross.”

On the other hand, some things are clear.

The Asbury Park Press reported, as early as March 2, that the administration of New Jersey Governor Chris Christie

“wasted no time to petition [Commerce Secretary] Ross this week and ask him to put a hold on the new summer flounder regulations approved by the Atlantic States Marine Fisheries Commission on Feb. 2.”

That means that New Jersey was speaking to the Commerce Secretary about fluke regulations three full months before ASMFC found the state out of compliance with its management plan.

Those combinations, combined with the Commerce Secretary’s failure to consult Regional Administrator Bullard (and apparently no one else in the regional office), suggests that, as Ms. Patterson feared, the decision to overrule ASMFC could have been primarily political, and not based on scientific analysis.

That presents problems, because the Atlantic Coastal Fisheries Cooperative Management Act only permits the Secretary of Commerce to overrule ASMFC’s noncompliance ruling if the Secretary finds that ASMFC’s rules are not

“necessary for the conservation of the fishery in question.”

And that’s a decision that can only be based on data, not on politics.  Making it a political call would be patently illegal, just as illegal as the Secretary’s earlier reopeningof the recreational red snapper season in the Gulf of Mexico.

The fact that the Secretary engaged in one clearly illegal action doesn’t mean that he necessarily engaged in another.

But it certainly doesn’t rule it out, either.

THE JOKE'S ON FLORIDA'S STATE FISHERY MANAGERS

When I testified before the House Natural Resources Subcommittee on Water, Power and Oceans a couple of weeks ago, one of the other witnesses at the hearing was Nick Wiley, the Executive Director of the Florida Fish and Wildlife Conservation Commission.

While my testimony generally endorsed the current conservation and stock rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act, Mr. Wiley’s testimony was more critical of the law.  In his written testimony, he noted that

“We are facing a number of highly controversial and divisive fishery management challenges that continue to simmer.  We cannot fully address these challenges in many cases because we are boxed in by the current framework of the Magnuson-Stevens Act, and we need your help to find solutions.

“…The requirement to manage fisheries under strict annual catch limits, the overly prescriptive constraints for stock rebuilding plans, and general inflexibility within the current version of the law have hindered management of fish stocks in the South Atlantic and Gulf of Mexico…Changes to the law are needed to provide better utilization of and access to the nation’s public trust resources for the American public and the citizens of Florida.”

The general thrust of the comments was that Magnuson-Stevens should be modified in a way that would make federal fisheries management more closely resemble that of Florida and the other states, which do not have laws that require overfishing to end or that overfished stocks be promptly (or ever) rebuilt.

Comments from majority members of the Subcommittee seemed to be intended to support Mr. Wiley’s remarks.  Rep. Garret Graves (R-Louisiana) came right out and asked Mr. Wiley whether he was aware of any fish stocks that had been mismanaged by the State of Florida.  Not surprisingly, Mr. Wiley responded that there were none.

But facts have a way of slipping out, often in roundabout ways.  There is an old saying, “In vino veritas”—“In wine there is truth”—and the monarchs of a previous age supposedly employed jesters, sometimes called “fools,” who were permitted to speak truth to the throne, often using humor or parody to carry their message, without the fear of losing their heads that afflicted the rest of the court.

According to a recent article in the Bradenton Herald, a Florida newspaper, a post on a self-described entertainment website, which warns that all such posts found there

“are humerous news, fantasy, fictional, that should not be seriously taken or as a source of information”

has now played the fool, and revealed a real problem with the way Florida manages one important species within its state waters.

The headline on the “fake news” website announced

“Florida FWC considers closed redfish fishing season.”

It wasn’t true.  As far as anyone knew, the Florida FWC had absolutely no intention of closing the redfish season in the waters around Bradenton.

A lot of anglers who read the headline apparently didn’t realize that it was a gag.  The news of a possible redfish season closure went viral in the west Florida fishing community, spreading across social media.

But the big news was not that the story was false.  The big news was that a lot anglers in the Bradenton region thought that closing the redfish season for a while might be a good idea.

It seems that those anglers don’t believe that Florida’s state managers have been managing redfish very well at all.

According to the Bradenton Herald, one charter boat captain remarked that

“This is a good thing.  Give the redfish a chance to recoup numbers.  A lot of schools are getting worked over and harvested.

A second captain said

“I’m for it, they closed snook for four years, and look how they rebounded!  Redfish are overfished.

A third noted that there were the

“Fewest reds in our region that I have experienced in my 35-year career.”

The author of the article seemed to support such observations, writing that

“About five to seven years ago the amount of redfish around Tampa and Sarasota Bay was astonishing.  From the spring until the fall, it was catch as many redfish as you wanted from dozens of schools that patrolled the flats.  Captains had clients saying they were getting bored of cranking on the hard fighters non-stop.

“These days you’re lucky to find a few redfish, nevertheless a school of hundreds.  And when a big school is found, the boats soon follow, and the fish are targeted day after day until they leave or are kept if legal size.”

He doesn’t think that overfishing is the sole reason that redfish are scarce, but opines that redfish, along with snook and speckled trout

“have limited habitat and probably the highest “angler to fish” ratio than anything else that swims locally…

“I’ve seen many captains that refused to keep snook on their boats following the snook freeze nearly ten years ago…Perhaps it’s time we treat redfish in the same manner to see if it helps our local fisheries.”

So yes, it does seem that, contrary to Mr. Wiley’s response at the hearing, there is at least one stock of fish down in Florida that state managers aren’t handling very well.  

Maybe there are more, perhaps there are not.

The problem is that, without real standards, you can’t tell.

Mr. Wiley decried the “strict annual catch limits” and “overly prescriptive constraints for stock rebuilding plans” that are a part of Magnuson-Stevens, but he failed to note is that without such provisions, it’s very easy to let stocks tumble downhill without taking any remedial action—and without having to admit that such action is needed.

Without an annual catch limit, derived from the optimum yield of the redfish stock found of the west coast of Florida, it’s very difficult, perhaps impossible, to determine whether that stock is overfished, and action needs to be taken.  So when anglers find a body of redfish, those redfish are pounded “day after day until they leave or are kept if of legal size.”  (It should be noted that there is no commercial fishery for redfish in Florida, so any depletion of the stock can be laid solely at the anglers’ feet, and no fingers should be pointed at the usual commercial bogeymen.)

And without a hard threshold for an overfished stock, it’s impossible to determine whether the relevant redfish stock has declined so badly that rebuilding measures, and a meaningful rebuilding deadline, need to be imposed.

Instead, Florida manages redfish by the sort of “alternative measures” that various anglers’ rights groups and industry players want to introduce into federal fisheries, and the results have been predictable—fewer fish, and fewer fishing opportunities for anglers.

Those who would weaken Magnuson-Stevens argue that recreational fishermen shouldn’t be bound by annual catch limits, and are harmed by rebuilding timelines.  They say that alternative management measures should be used.

They try to tell us those things with a straight face.  

But it seems that it may take a fool—or a gag on an Internet website—to tell us the things that are true.

    

TARNISHED HALOS: ANGLERS, CONSERVATION AND THE LAW

A few nights ago, my wife and I went out for dinner at a local seafood restaurant.  We ordered a bunch of raw oysters to start, and then the waiter told us about a special appetizer that was not on the menu.

He said that “We have a seared bluefin tuna, just in from Montauk…” and began to describe the dish.

It sounded good.  I wanted to eat it.  But the word “bluefish” got my thoughts going, because a bluefin tuna has to be at least 73 inches long before it can legally be sold, and that’s a lot of fish for a smallish local restaurant to buy.

So I asked, “By any chance, do you know how big the fish was?”

And he said, “One hundred ten pounds.”

At which point, we ordered the crab cakes, because the bluefin was clearly illegal.  A 73-inch bluefin should weigh well over 200 pounds—probably something close to 225—and even dressed, will weigh more than 110.

Besides, there haven’t been a lot of 73-inch bluefin around Long Island lately.  On the other hand, there had been plenty of fish in the 100-150 pound range, and you didn’t have to go all the way to Montauk to find one.  Fish of that size were being regularly brought back to the local docks.

By anglers.

The odds were very high that the “special” bluefin appetizer that the restaurant was serving came from a fish caught by an ostensibly recreational boat, and sold illegally at the restaurant’s back door.

After all, it’s not an uncommon occurrence.  I’ve been fishing offshore since the late 1970s, and a lot of folks who claim to be recreational anglers, and have neither a New York Foodfish License nor a New York Landing Permit, regularly market their tuna, sometimes through seafood dealers and more often through a shop’s or a restaurant’s back door. 

Sometimes they get caught, but the immediate cash return, compared to the remote chance that they will be caught and fined, makes such criminal sale seem like a reasonable gamble.

And yes, the practice is pretty widespread.

Things are even worse in the striped bass fishery, where back-door sales to restaurants by so-called recreational anglers are routine events.  In his book, Caught, author Jeff Nichols shed some much-needed daylight on a thriving black market fueled by the many recreational anglers who have decided that the best way to fuel their fishing habit is to turn their striped bass into illicit dollars that can in turn fuel future excursions, where more bass will hopefully be caught, and illegally sold…

Every fall, if the striped bass set up in front of Fire Island Inlet, as they often do, many local “recreational” boats will exceed their legal bag limits, sometimes making more than one trip each day, in order to illegally sell bass to restaurants and retail outlets.  

Such behavior is so common that it rarely even draws comment, much less censure.  A few years ago, I resigned from a fishing club that I had belonged to for more than 30 years, after a member of its Board of Directors was busted by conservation officers for illegally harvesting striped bass to sell in a restaurant that he owned.  I left because the club completely ignored such misconduct, with the President calling him a “good member” and everyone else shrugging it off.

Such behavior is nothing new.

I grew up in Connecticut, which was a “gamefish” state that outlawed commercial striped bass fishing during the 1950s.  Yet it was common knowledge that recreational fishermen—including all of the so-called “sharpies” that stood atop the striped bass anglers’ pecking order—sold their catch through local outlets as a matter of course, the "gamefish" law be damned.

Thus, I had to laugh when I read a recent op-ed piece in the on-line edition of Sport Fishing Magazine, in which Mike Leonard, spokesman for the American Sportfishing Association, tries to justify weakening the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act by arguing that

“…anglers have always been at the forefront of conservation efforts,”

and that

“Most of the opposition [to weakening Magnuson-Stevens] is based on a fundamental belief that if you give anglers an inch, they’ll take a mile.  They like to promote the idea that any changes to insert flexibility into MSA to improve recreational fisheries management will somehow lead to rampant overfishing.  Nothing could be farther from the truth.

“It’s important during this debate over the need for more reasonable access to federal fisheries that neither the public nor fisheries administrators lose sight of anglers’ long-held commitment to conservation…”

Yes, some anglers are committed to fisheries conservation.  I like to think that I’m one of them, and that the folks who I fish with are, too.  

The striped bass fishing community contains a lot of conservation advocates, particularly among the surfcasters and light-tackle boats, although it also contains a lot of poachers.  Conservationists tend to abound in the “difficult” fisheries—striped bass, red drum in the surf, bonefish, tarpon, billfish, permit—while in the “meat” fisheries, they’re harder to find.

As Mr. Leonard points out, striped bass fishermen played a role in turning back a recent effort at the Atlantic States Marine Fisheries Commission to increase the striped bass kill; however, he ignores another ASMFC-managed species, tautog, where recreational fishing interests swarmed thehearings in lynch-mob mode, opposing any action to begin rebuilding fish stocksthat have been overfished for more than 21 years.

Mr. Leonard deny that anglers will engage in “rampant overfishing” without the current strictures of Magnuson-Stevens, but it’s hard to ignore the fact that not only anglers, but the same American Sportfishing Association that he represents, recently praised a federal reopening of the Gulf of Mexico private boat red snapper season, thanking

“Governor Scott, the [Florida Fish and Wildlife Commission], and [Congressmen] Neal Dunn and Matt Gaetz for their support of additional Federal days of Gulf red snapper fishing for recreational anglers.  While we are grateful for an extended season, it’s clear that long-term solutions are needed in order to address the shortcomings of our current federal fisheries management system.”

Another American Sportfishing Association representative, speaking for Keep Florida Fishing, an ASA affiliate, said

“An extended Federal Gulf red snapper season will have a tremendous positive economic impact on Florida’s communities, which depend on our state’s $9.6 billion sportfishing industry.  We appreciate efforts to expand access to our fisheries, and we will continue to push for improvements to federal management of recreational fishing.”

They lavished such praise even though, in reopening the season, the Commerce Department itself admitted that the reopening

“will necessarily mean that the private recreational sector would substantially exceed its catch limit, which was designed to prevent overfishing the stock.  [emphasis added]”

Conservation groups who brought suit against the Commerce Department in reaction to the reopening estimate that private-boat anglers will overfish their catch limit by between 6.8 and 9.6 million pounds, an amount that is certainly “substantial.”

The entire annual catch limit for red snapper—recreational and commercial combined—is only around 15 million pounds.  The fact that American Sportfishing Association praised the reopening, and so effectively condoned anglers overfishing their quota by no less than 7 millon pounds,  makes its reassurances that weakening Magnuson-Stevens won’t “lead to rampant [recreational] overfishing” ring very, very hollow indeed…

Because the fact is, anglers aren’t angels.  Some have a stronger conservation ethic than others, and some have no ethics at all.  The only way to protect fish stocks—and ethical anglers—from the poachers and the fish hogs is to have an effective federal fishery management laws.

I keep remembering a conversation I once had with a fluke fisherman from Staten Island.

I was arguing that one of the benefits of a salt water fishing license was that New York would be able to afford more conservation enforcement officers, but he didn’t believe that would be a good thing. As he put it (and I might get a word or two wrong here, but you’ll get the gist),

“You spend all that money on bait, gas and tackle, you wanna bring somet’in’ home ta eat.  You go out, you can’t catch a legal fish, well, you spend all that money, ya gotta do what ya gotta do…”

So if you want to believe that all anglers are on the forefront of fisheries conservation, and you believe ASA’s proposition that they wouldn’t overfish if the law gave them a chance, well, I won’t say anything about a bridge in Brooklyn. 

But they’re a guy in Bay Shore who might sell you a bluefin, and there are plenty out in Montauk who will sell you a bass…

FEDERAL FISHERIES: ULTIMATELY ACCOUNTABLE

The best fisheries management ideas are essentially worthless if they aren’t enforced.

Thus, when the Magnuson-Stevens Fishery Conservation and Management Act was reauthorized a decade ago, it included the provision that

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

Prior to the adoption of such provision, there was often a real incentive for fishermen to fight against the sort of restrictive fishery management measures that were sometimes needed to constrain harvest within biologically appropriate levels.  

While some commercial fisheries, managed on a hard-quota basis even before such reauthorization took place, did require paybacks of harvest overages in previous years, fisheries without hard quotas faced few consequences, other than an increasing shortage of fish, for chronically overfishing target stocks.

The groundfish stocks managed by the New England Fishery Management Council, which eschewed hard-poundage quotas for such so-called “input controls” such as limiting days at sea, probably provides the best example of unaccountable fisheries.  Overfishing such stocks was not subject to any sort of meaningful penalties.  As a result, a 2008 assessment of groundfish stocks found important fish such as cod and various flounder to be badly overfished.

Recreational fisheries, too, were historically immune to any sort of meaningful payback program; overages might result in tightened regulations, but the annual recreational catch limit was not reduced as a result.  The recreational red snapper fishery in the Gulf of Mexico was a prime example of anglers not being held accountable for overfishing; even though they chronically exceeded their annual catch limit, they did not face any sort of payback until a framework amendment to the fishery management plan was adopted in 2014.

2014 also saw a federal court order the National Marine Fisheries Service to impose accountability measures on the recreational red snapper fishery in the Gulf to address such chronic overages.

Such accountability measures help to assure that NMFS’ conservation and stock rebuilding measures remain on track, and that United States citizens can enjoy the benefits that flow from healthy, fully-restored fish stocks.

However, while it is important to hold fishermen accountable in order to properly manage fish stocks, it is even more important to keep fishery managers accountable to the public for their obligation to restore and properly manage fish stocks.  It is in this realm of accountability that Magnuson-Stevens shines particularly bright, and where it is far superior to any state’s fishery management laws.

Much of that superiority arises out of Magnuson-Stevens' clear guidelines.  Overfishing must be ended.  Stocks must be rebuilt as quickly as possible, within a time certain that is very clearly set out in the law.  Annual catch limits must be established, and the best available science must be used to establish management measures.

Those clear standards make it relatively easy for aggrieved parties to put federal fisheries managers back on their proper course should they veer astray for any reason.  

As early as 2000, a federal appellate court decided the case of Natural Resources Defense Council v. Daley, where such court found that

“’to assure’…achievement of the target [fishing mortality rate], to ‘prevent overfishing,’ and ‘to be consistent with’ the fishery management plan, the [total allowable landings] must have had at least a 50% chance of attaining a [fishing mortality rate] of 0.24 or lower…

“The disputed 1999 [total allowable landings] had at most an 18% likelihood of achieving the target [fishing mortality rate].  Viewed differently, it had at least an 82% chance of resulting in [a fishing mortality rate] greater than the target [fishing mortality rate].  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 to succeed offers a ‘fairly high level of confidence.”

With those words, the court in Natural Resources Defense Council v. Daley established a legal standard for federal fisheries managers, requiring that any federal fishery management plan had to have at least a 50-50 chance of achieving its goals, including the goal of preventing overfishing.  

Such a standard could never have been established without the clear guidelines established by Magnuson-Stevens.

Recently, the United States Department of Commerce, acting through its subsidiary agency, NMFS, has taken an action that should qualify the people involved as permanent residents of Bizarro world comics.  

Magnuson-Stevens includes, in its National Standard One, a crystal-clear requirement that

“Conservation and management measures shall prevent overfishing,”

but the agency has reopened the private-boat red snapper fishery in the Gulf of Mexico, even though, by the agency’s own admission,

“The stock is still overfished,”

and

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

And once again, the private sector is rallying to put the public-sector fisheries managers back on course, challenging the patently illegal agency action in court.  

The matter, Ocean Conservancy v. Ross, has been brought in federal district court in Washington, D.C.; the Ocean Conservancy, the Environmental Defense Fund, and Earthjustice, which provides litigators skilled in conservation advocacy, are collaborating in the effort.

A release issued by Environmental Defense Fund notes that the lawsuit was necessary because

“The Commerce Department decision puts red snapper recovery at risk, jeopardizing fishing businesses and recreational fishing for the species.  It also violates several provisions of federal law.  No scientific analysis accompanied the decision, but publicly available data and conservative assumptions show the extended season will result in private anglers catching three times their science-based limit.  The lawsuit does not seek to change the length of the 2017 season, but instead seeks to prohibit the Department of Commerce from taking future similar actions that continue to jeopardize the species.”

An Ocean Conservancy blog relates a similar message, saying

“The department has set a dangerous precedent by deliberately undercutting the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which requires science-based limits to prevent overfishing and rebuilding plans to return vulnerable fish stocks back to healthy levels.    It is ignoring the proven success of the science-based strategies that have put America at the forefront of sustainable and economically productive fisheries.  Made behind closed doors, the public was not given the usual opportunities to weigh-in on this decision.  And it benefits only one sector of a fishery used by many, turning a blind eye to years of hard sacrifices made by fishermen and coastal communities.”

One of the few public comments condemning the lawsuit came in a truculent e-mail from David Cresson, Executive Director of the Louisiana chapter of the Coastal Conservation Association, who reportedly wrote

“Of course they sued, that’s what the environmental groups do…They hate it when Americans enjoy America’s plentiful public resources.”

In that e-mail, Mr. Cresson seems to have carefully avoided the legal or biological implications of the season reopening, both of which might have proved difficult for his organization to defend. 

Mr. Cresson and the Coastal Conservation Association, which he represents, have been frequent critics of federal management of red snapper in the Gulf of Mexico.  CCA has endorsed the Commerce Department’s decision to reopen the season,  and has also long endorsed the concept of turning all authority for red snapper management over to the states.

State management appears attractive to groups such as CCA because states are not bound by Magnuson-Stevens, and thus are under no legal requirement to end overfishing or rebuild overfished stocks. 

While they are arguably subject to litigation if they act irresponsibly, state law does not contain the clear management standards included in the federal statute.  Instead, state litigation would be governed by the general principles of administrative law, in which agency decisions would stand if they are not arbitrary, capricious or contrary to existing law. 

Whether a state agency action is arbitrary or capricious is governed by a principle known as the “substantial evidence rule.”  Although its particulars differ in every jurisdiction, the rule stands for the principle that courts will not second-guess agency decisions if there is any evidence at all on the record that would support the agency action, even if such evidence is contradicted by other evidence that the court might deem far more convincing.

Thus, a substantial body of scientific data could be ignored by an agency that prefers to believe a few fishermen or tackle dealers who tell them that “there are plenty of fish out there; you just need to know where to find them.”

The fact that CCA and allied organizations are supporting H.R. 2023, and its language

“facilitating greater incorporation of data, analysis, stock assessments, and surveys from State agencies and nongovernmental sources,”

including fishermen, is another clue as to what such groups are trying to achieve and why they oppose current federal fisheries law.

And that’s why it’s so important to keep the conservation and stock rebuilding provisions of Magnuson-Stevens intact.  

They provide objective standards that managers must employ when setting regulations.  They require that the best science available be used.

And on those rare occasions when fishery managers act contrary to the public interest in maintaining healthy, fully restored fish stocks, they provide a way for the courts, acting on behalf of that public interest, to provide the ultimate accountability measure, a legal decision that compels federal fishery managers to maintain healthy and sustainable stocks.