NEW JERSEY CHARTERBOAT ASSOCIATION DOES THE RIGHT THING FOR SHORTFIN MAKOS

Mako sharks, and in particular the shortfin makos that we target in the East Coast shark fishery, are in serious trouble. 

The International Commission for the Conservation of Atlantic Tunas has, to date, been unwilling to follow the scientific advice to prohibit mako landings.  The United States has abandoned its traditional role as a shark conservation advocate, voting against needed measures at both last month’s ICCAT meeting and at last summer’s last meeting of the parties to the Convention on International Trade in Endangered Species.

That being the case, it was heartening to see a New Jersey charter boat association step forward and take a leadership position on mako conservation.

Earlier this week, the Asbury Park Press reported that the Greater Point Pleasant Charter Boat Association will no longer award prizes for makos weighed in at its venerable Mako Mania Tournament.  As a result of that change, the event will be transformed into a newly imagined “Tuna Mania” tournament.

The Association acknowledged the National Marine Fisheries Service’s finding that shortfin makos are both overfished and subject to overfishing, a finding that only confirmed Association members’ observations that that size and numbers of the makos they encountered were on a notable downswing.  

In announcing its decision to end the mako shark competition, the Association said that, in order for the

“mako shark be given a chance to make a comeback we have voluntarily placed a moratorium on Make Mania.”

Offshore fishermen, as well as anyone concerned with marine conservation, should praise the Association for that action, not just for its immediate conservation benefits, but also for its symbolic value.  Ending the mako contest will probably have negative economic implications for Association members in the short term, but they went ahead and did it anyway, placing the long-term health of the mako resource ahead of their own immediate interests.

They ought to be honored for that.

Because when it comes to fisheries conservation, someone has to be the first to act.  Someone must be the first person, or the first club, the first state or, as in this case, the first charter boat association to step away from the crowd and take needed action for no better reason than because it’s the right thing to do.  

In doing so, those pioneers set a new standard for conduct, raising the bar for everyone.  By ending their mako tournament, the Association has issued a de facto challenge to other tournament sponsors to follow its example.

Being the first to adopt conservation measures, and issuing that sort of challenge, takes more than a small bit of courage, because everyone else is heavily invested in the status quo. 

The pioneers are often met with as much scorn, and sometimes even ridicule, as they are with the admiration and praise that they deserve.  Other recreational fishermen will dismiss their efforts, saying things like “Yeah, let your fish go so that the commercial guys can go catch them,” in part because they believe that is true and in part because anyone who decides to walk a higher road is going to cause a lot of discomfort among those who have made the low road their home, who almost always seek to drag down anyone who decides to walk a different path.

Thus, the decision to end the Mako Mania Tournament will not go unnoticed, and will not go uncriticized.  

Many will probably dismiss the effort, and say that it makes no difference, because fishermen will fish other tournaments, and just weigh their kills elsewhere.

Other tournament sponsors might just chuckle a bit and declare, “More for us!” while they try to hide their unease, knowing that the Association’s actions will put more of a negative spotlight on those events that still encourage anglers to kill fish for cash.

Because the tide is slowly changing.

Shark tournaments, as popular as they had become, are a relatively new phenomenon.  Mako Mania only dates back to the mid-1980s; other events, such as Long Island (NY)’s Bay Shore Mako Tournament, are older, but can still only trace their history back to the early 1960s.  While that’s nearly 60 years ago, it’s still a lot more recent than, say, the start of the West Palm Beach (FL) Fishing Club’s Silver Sailfish Derby, which was first held in 1935, or the United States Atlantic Tuna Tournament, which began at about the same time, and only stopped doing business a few years ago, when there were no longer enough bluefin around to entice anglers into fishing the event.

But back in the ‘30s, bluefin and billfish were common, and sharks, with the exception of the beautiful and acrobatic mako, were detested as “trash fish” that too often stole or mutilated a prized billfish catch.  No self-respecting sportsman would intentionally try to catch a shark, and no tournament committee would soil its reputation by offering prizes for sharks brought back to the dock.

Shark fishing only began to gain legitimacy toward the end of the 1950s, when the late Montauk, NY charter captain, Frank Mundus, began taking customers “monster fishing” in the waters off eastern Long Island.  Sharks were abundant and easy to find back then, and it didn’t take a lot of expensive tackle or sophisticated techniques to bring a few to the boat. 

So, while well-heeled sportsmen still chased swordfish, marlin and tuna, anglers of more modest means discovered that shark fishing allowed them to catch big fish on a relatively small budget.  At that point, helped along by frequent write-ups in the popular angling press, shark fishing became more and more popular.

At the same time, all sharks but the mako and sometimes the thresher retained their lowly status.  People caught plenty of sharks, killed them, and brought them back to the docks to weigh in and photo.  After that, the fish ended up trucked to a landfill or dumped out at sea.  

I can still remember hearing a locally renowned shark fishermen giving a lecture here on Long Island in the late 1980s, when he told the audience how to find and catch the big tiger sharks that were still fairly common in local waters.  After weighing them in, he told the crowd, always slit their bellies and cut out the liver before dumping them out in the bay, because the liver floats and if you don’t cut it out, the dumped carcass might rise to the surface.

No one thought much about not killing, weighing and dumping such sharks when they were caught.

So the tournaments saw many scores of sharks brought back to the docks, weighed and, more times than not, tossed in dumpsters, to end their earthly existence feeding flies on some municipal trash heap.  That went on for quite a while, fueled in the 1970s by a new shark hunting hysteria spawned by the movie Jaws.  

In the 1980s, tuna and billfish stocks began to decline, so the sports with the big boats, fueled by the “greed is good” ethic of the era, spilled into the shark fishing scene, and contests that once offered a trophy and maybe some fishing gear to the winners started offering cash, and often a lot of it, to winners in order to reel in the high rollers.  That didn’t do the sharks too much good.

But as the hysteria began to ebb, awareness started to take its place.  Anglers became more aware of the fact that the shark supply wasn’t endless, and also became less tolerant of tournament dumpsters.  In response, the tournaments started setting minimum weights for the sharks brought in for prizes, and often limited prizes to species recognized as edible, which generally meant makos and threshers.  Awards were handed out for sharks tagged and released, and not just for sharks killed.

Yet many shark populations, and in particular mako populations, continued to decline.  Fishing regulations became more restrictive but, in many cases, not restrictive enough.

When viewed in that historical context, the Greater Point Pleasant Charter Boat Association’s decision to end its mako tournament is just the next logical step in the recreational fishery’s conservation of important marine species.  The Association is acting responsibly, to protect an important and valued marine resource.

For doing so, they should be honored, and emulated, by the entire shark fishing community.

IS SECTOR SEPARATION APPROPRIATE IN THE MID-ATLANTIC?

As I listened in to last week’s joint meeting of the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Bluefish and Summer Flounder, Scup and Black Sea Bass management boards, I noticed that a few themes repeated themselves.

One of those themes was sector separation.

Normally, all anglers fish under the same set of regulations.  But when managers adopt a "sector separation" strategy, they adopt regulations that, as you might guess, differ by recreational sector.  Most typically, that means setting regulations for the for-hire fleet that differ from those that apply to shore and private-boat fishermen, but sector separation can also take different forms, such as allowing shore-based anglers to harvest fish under different rules than those that apply to boat fishermen.

Arguably, the most effective, and also the most necessary, use of sector separation occurred in the Gulf of Mexico red snapper fishery, where managers ultimately decided to allocate the red snapper harvest between the commercial and recreational sectors, and then further divide the recreational allocation between the for-hire and private boat fisheries.

In that case, the need for sector separation was compelling.  

As described in the Final Amendment 40 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which established the sector separation structure,

“Since 2004, there has been a moratorium on the issuance of new federal reef fish for-hire permits.  This means that participation in the federal for-hire component is capped; no additional federal permits are available.  This also means that access to these vessels is limited to the recreational anglers that can fit on these permitted vessels.  On the other hand, there is no limit to the number of anglers fishing from private recreational vessels which may target reef fish species; it is an open entry fishery.  There is also no limit to the number of state-licensed for-hire vessels.  These state-licensed for-hire vessels may land federally managed species in state waters only…

“With overall angler effort increasing, the moratorium on federal for-hire permits has limited growth in the for-hire industry and, in turn, anglers’ access to vessels.  An evaluation of effort by fishing mode suggests that private recreational anglers now account for an increasing share of the red snapper-related effort in the Gulf…A part of this shift is attributable to changes in state regulations where state waters are open when federal waters are closed.  For 2014, while the season in federal waters was nine days long, Texas waters were open a total of 365 days, Louisiana for 286 days, Florida for 52 days, and Mississippi and Alabama for 21 days.  Charter vessels and headboats with a [federal] reef fish for-hire permit are not allowed to fish in state waters for red snapper when federal waters are closed.”

In that situation, for-hire vessels and the anglers who fished from them were clearly and severely disadvantaged, when compared to private boat anglers participating in the Gulf red snapper fishery.  The federally-permitted for-hire boats weren’t allowed to compete on a level playing field.  

Instead, while the number of federally-permitted vessels, and thus their likely landings, was legally capped, the private boat fleet was allowed to experience unrestricted growth.  

While the federally-permitted for-hires could only fish for red snapper when the federal waters season was open, private boats, and state-licensed for-hires, could continue to land red snapper for a much longer time—in Texas, the season never closed—and because all of the red snapper, wherever caught, were tossed in the same basket for management purposes, the expanding state waters fishery caused the federal red snapper season, along with the federally-permitted for-hire boats’ opportunities, to steadily shrink.

It was inequitable, with the states’ longer seasons creating an unfair situation for the federally permitted for-hire vessels.  The creation of sector-specific regulations was probably the only way to correct what seemed to be a clear injustice.

No similar situation currently exists in the Mid-Atlantic.  While the for-hire sector catches many fewer fish in the bluefish, black sea bass and scup fisheries—the fisheries that inspired most of the sector separation comments at last week’s joint meeting—than the combined shore and private boat sectors do, its landings are not artificially constrained in the same way that the for-hire sector’s landings were constrained in the Gulf red snapper fishery. 

The bluefish, black sea bass and scup for-hire fisheries remain open-access; while federal permits are required, the number of such permits is not restricted.  Thus, Mid-Atlantic for-hire vessels, unlike their counterparts in the Gulf of Mexico red snapper fishery, are free to cancel their federal bluefish, scup or black sea bass permits at any time that they choose to, in order to take advantage of more liberal state waters regulations, knowing that they will be able to renew those permits later on, when they want to resume fishing in federal waters.

Such cancellation and renewal became standard operating procedure for many for-hire vessels during the recent past, whenfederal black sea bass regulations closed the federal waters fishery for onemonth during the fall, but state fisheries remained open.  It no longer occurs, but only because the federal and state seasons are now congruent, and there is no need to game the permit process in order to continue fishing.

Gulf for-hire vessels in the red snapper fishery were severely disadvantaged by regulations that forced them to adhere to a federal season that lasted for mere days, while private boat anglers could remain in state waters (or, too often, take the chance that no one was looking and poach snapper from closed federal waters, using the state waters season as cover) and continue to participate in the red snapper fishery for weeks, months or, in Texas, for the whole year despite the federal closure.

In the Mid-Atlantic, the for-hire fleet typically fishes under the same regulations that govern private boat anglers.  In the few situations where the regulations governing the fishery differ from sector to sector, anglers fishing from for-hire vessels enjoy privileges not available to private boat fishermen, such as the for-hires’ 50-fish bag limit for scup during the so-called Northern Region (New York to Massachusetts) “bonus season,” when private boat fishermen are still restricted to 30 scup throughout the year, and last Tuesday’s decision to cut the shore and private boat bluefish limit by 80 percent, to just 3 fish, while anglers fishing from for-hire vessels will be allowed to retain 5.

Thus, the calls for sector separation in the Mid-Atlantic aren’t a call to remedy an existing regulatory inequity between the private and for-hire fleets.  Instead, they represent an effort to create an inequity between the shorebound and privateboat anglers, who account for most of the fishing trips and most of thelandings, and the minority of anglers who fish from for-hire vessels, by granting the for-hire fleet special privileges, most often in the form of higher individual bag limits.

Such privileges would be granted not to level the playing field, but to tilt it in a way that would support the business decisions made by most—but not all—members of that fleet, to market their businesses primarily to harvest-oriented anglers and to adopt a business model that is dependent on relatively liberal bag limits.

Yet, while those calling for sector separation in the Mid-Atlantic are seeking special privileges, they are not as eager to seek special, concomitant responsibilities.  

Thus, when the 5-bluefish bag limit for the for-hire fleet was discussed last Tuesday, and someone asked whether there would also be separate accountability measures imposed on the for-hire fleet in event that such limit led to an overage, the response was that any accountability measures would apply to the entire recreational sector.  There was no for-hire-specific quota established to accompany the higher, for-hire-specific bag.

Yet if the Mid-Atlantic is going to seriously consider sector separation—and I’ll admit that there are some limited instances when that might make sense, if properly done—then it must consider real sector separation, that links sector-specific regulations with sector-specific quotas and sector-specific accountability measures if those quotas are ever exceeded.

For without all of those things being in place, measures such as next year’s bluefish bag limit, or the scup “bonus season” aren’t really sector separation at all, but just special privileges, granted to a privileged few.

                                                                                                                                                                                 

DID THE MID-ATLANTIC COUNCIL'S RECENT ACTIONS COMPLY WITH THE LAW?

Regular readers of this blog know that I am a strong supporter of the federal fisheries management system, and of the Magnuson-Stevens Fishery Conservation and Management Act that governs its operation.  They also know that I am a frequent critic of the Atlantic States Marine Fisheries Commission, and its ability to exercise virtually unfettered discretion when managing inshore fish stocks, free of a law such as Magnuson-Stevens that assures that overfishing will be ended and depleted fish stocks will be rebuilt.

Given those beliefs, I was surprised by two of the actions taken by the Mid-Atlantic Fishery Management Council last Wednesday, which seemed to push, and in one case, probably overran, the boundaries established by fisheries management law.

The actions affect two different species, scup and black sea bass.  The circumstances of each action bear certain similarities, but also some very real differences; those surrounding the scup decision probably offer the best justification for extraordinary action, so we probably ought to consider that situation first.

Right now, scup are very abundant, and the stock appears to be healthy.  An operational stock assessment released earlier this year found that at the end of 2018, spawning stock biomass was estimated to be about 186,578 metric tons, which was approximately twice the biomass target.  The same operational assessment found that fishing mortality was well below the overfishing threshold.  Scup enjoyed record-high recruitment in 2015, although recruitment was below average in 2016 through 2018.

In describing the state of the stock, the operational assessment said

“The age structure in current fishery and survey catches is greatly expanded compared to the truncated distribution observed in the early 1990s.  Most survey aggregate biomass indices are near their time series high.  Recent survey indices suggest the recruitment of several large year classes over the last 15 years.  These simple metrics indicate that current mortality from all sources is lower than recent recruitment inputs to the stock, which has resulted in a spawning stock biomass that is well above the management target.”

Thus, all appears well with the scup population.  However, all is not well with the scup management program.

Managers have long viewed scup as a primarily commercial species, with 78 percent of the overall catch allocated to the commercial sector, based on what the National Marine Fisheries Service believed were the recreational and commercial shares of the catch during the years 1988-1992.  

Recent revisions to recreational landings estimates have demonstrated that anglers’ catch during the 1988-1992 base years was understated, and that anglers were actually responsible for about 35 percent of the overall catch.  As a result, the Mid-Atlantic Counsel has initiated a new amendment to the management plan that, when completed, will probably alter the current allocation to provide more fish for the recreational sector.  

But until that amendment is completed, recreational catch is restricted to 22 percent of the catch.

That’s where the problems come in.

Recreational landings weren’t only higher than previously thought during the 1980s and ‘90s; they turned out to be higher than believed today.  In October, the Council (and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board) decided that the 2020 recreational harvest limit for scup should be set at 5.92 million pounds.  Unfortunately, the new recreational catch data showed that 2018 landings were about 12.98 million pounds.  That meant that, in order to constrain harvest to 5.92 million pounds, or 22 percent of the overall annual catch limit, recreational harvest would have to be cut by 55 percent.

To do that, federal regulations (state regulations differ) would have to be tightened dramatically, from a 50-fish bag limit, 9-inch minimum size and year-round season to either a 3-fish bag limit (if the size and season remained the same), a 12-inch minimum size (keeping the current bag and season) or a 5-fish bag and 10-inch minimum, without any season change.

That would constitute a very big cut, particularly for a fish that remains very abundant, and that isn’t harvested at anywhere close to its maximum sustainable rate.  That’s because the commercial fishery doesn’t catch its entire large quota; for the years 2014-2018, the commercial sector never caught more than 84 percent of its allocation, and in 2018, caught only 55 percent of the commercial quota.  And that’s not likely to change, because the commercial fleet comes in under-quota not because they can’t catch the fish, but because they can’t sell them for anything like a reasonable price.  The market for scup is just too limited.

Thus, even with anglers overfishing their quota, the overall catch remains below the acceptable biological catch, and well below the overfishing threshold, because of the big commercial overage.

It would seem that the easy answer would be to reallocate the unused commercial fish to the recreational sector, leave recreational regulations at status quo and move forward from there.  Unfortunately, the management plan doesn’t provide for such quota transfer, and there is no time to put an amendment allowing such transfer in place for the 2020 fishing year.

That left the Council stuck between following the process, and putting in unnecessarily strict recreational regulations, or doing what seemed to make sense, but violating what seems to be a clear provision of the management plan.

The Council (and the Management Board) took the latter course.  At Wednesday’s meeting, they agreed to make no change to recreational regulations, even though by doing so, they effectively guaranteed that anglers would overfish their share of the overall annual catch limit, perhaps by more than 100 percent.  

Still, if both recreational and commercial catch are the same in 2020 as they were in 2018, the overall catch will remain about 2 percent below the acceptable biological catch, and 18 percent below the overfishing limit.

That should work.  Except that by adopting those regulations, the Council would be allocating the recreational sector far more than just 22 percent of the catch.  And that violates the terms of the management plan.

That clearly makes Michael Pentony, Regional Administrator of NMFS Greater Atlantic Region, uneasy.  He expressed real uncertainty about taking such action at the October Council meeting.  On Wednesday, he seemed more comfortable about the status quo regulations, undoubtedly because there is no compelling reason to impose new restrictions on anglers.  However, he still said (note that I might have missed a word or two at the end of the quote) that fishery mangers

“do have to balance tension between doing the best thing for the fishery with doing the best thing for the [scup] stock and following the [law and rulemaking] process.”

If I had to make a prediction, I would predict that, in the end, NMFS approves the status quo regulations.  The argument against doing so is strictly technical, and based solely on the management plan’s 22 percent recreational allocation; there is no conservation need for stricter measures.

While I believe that the decision to adopt status quo regulations could be successfully challenged in court, because it is inconsistent with the terms of the management plan, I think it is highly unlikely that anyone will bother to bring such a challenge.  The commercial fishery isn’t likely to spend money on a court fight over fish it doesn’t intend to catch, and the conservation community is unlikely to intervene in a situation that is unique in its facts, will not tend to establish a precedent that will lead to overfishing and will not tend to weaken fisheries laws.

I'll even admit that I believe that staying status quo on scup regulations is, in the end, the right thing to do.

But when it comes to black sea bass, my views on the propriety of the Council’s actions, the possible implications of those actions, and the overall “rightness” of maintaining status quo regulations are very different.

In some ways, the black sea bass fact pattern is similar to that of scup.  Both fish populations are healthy.  The abundance of both was at or over 200 percent of target at the end of 2018, but is slowly declining after a historically large recruitment event.  And for both, recreational landings are higher than previously believed, leading to the need for more restrictive regulations to keep anglers within the respective recreational harvest limits.

But after that, things diverge.

The 2011 year class of black sea bass, and the resulting 2012 recruitment and 2014 spawning stock biomass, were the highest recorded in a time series going back thirty years.  Since 2014, spawning stock biomass has been steadily declining, with another big year class in 2015 serving only to slow, but not halt, that decline.  While spawning stock biomass was estimated to be around 240 percent of target at the end of 2018, by 2021 it will probably have fallen to about 160 percent of target, which is still very good, represents an unquestionable decline.

The operational assessment states that

“Recent survey indices suggest the recruitment of a large 2011 year class and a strong 2015 year class in both [the northern and southern] regions.  Modest catches over the past few years would indicate that current mortality from all sources is lower than recent recruitment inputs to the stock, which has resulted in a spawning biomass that is well above the management target.  Despite uncertainty associated with the most recent year estimates, exploitable biomass is expected to decrease in coming years due to a poor 2017 cohort along with declining abundance of the 2015 cohort.”

So yes, the stock is declining.  In addition, black sea bass is a more popular food fish than scup, and commercial fishermen have had no trouble landing their entire quota.  Although the commercial quota will nearly double in 2020, which may create some market issues, there is little reason to believe that the commercial sector won’t at least come close to catching their quota next year.  There will probably be very little, if any, unusued commercial quota to offset any recreational overage.

The recreational quota increased substantially, too, but that increase was more than absorbed by the new estimates of recreational landings, which were much higher than previously believed.  Because of that increase, 2019 recreational landings are expected to be around 7.33 million pounds, and would require a 20 percent reduction to constrain such landings to the 5.81 million pound recreational harvest limit for 2020.

Achieving such reduction would require changes to the federal regulations (again, state regulations differ particularly in the Northeast) that would amend the current 15-fish bag limit, 12 ½-inch minimum size and season that runs from February 1-28, and May 15-December 31 to either a 6-fish bag, with the same minimum size and season, or to a season that ran from February 1-28 and July 6-December 31, with the current minimum size and bag limit.

States between Maine and New Jersey, which already have regulations much more restrictive than the federal rules, would have to find ways to make their own 20 percent cuts in harvest.

Such harvest reduction was not embraced by the Black Sea Bass Advisory Panel, which opposed any cuts and believed that, if anything, landings should be increased.  The Black Sea Bass Monitoring Committee noted that it is difficult to constrain landings when sea bass are abundant, that the stock has mantained itself at high levels despite multiple years of recreational overharvest, that warming winter waters may result in the production of more large year classes, that there are signs of a strong 2018 year class, that the need for harvest reductions was largely driven by allocation and changes in recreational estimates and not a conservation need, and that the size of the needed reduction wasn’t known until the operational assessment came out in August.

In consideration of those factors, the Monitoring Committee recommended that no changes be made to recreational black sea bass regulations, and that the 2019 status quo be maintained.

As a result, the Monitoring Committee recommended, and the Council adopted, not only status quo recreational rules, but a situation in which recreational landings would total 7.33 million pounds, recreational discards would account for another 2.64 million pounds, commercial landings would be 5.58 million pounds and commercial discards would add 1.40 million pounds, for an overall 2020 catch of 16.95 million pounds.

Because of the Council’s actions on Wednesday, 2020 black sea bass landings probably won’t exceed the overfishing limit, but are expected to exceed the recreational harvest limit by 26 percent, the recreational annual catch limit by 23 percent, and the acceptable biological catch by 12 percent.

That latter point, exceeding the 15.07 million pound acceptable biological catch previously established by the Council’s Scientific and Statistical Committee, creates a substantial legal issue, as Section 302(h)(6) of Magnuson-Stevens states that each regional fisheries management council must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established [elsewhere in the law]  [emphasis added]”

The National Standards Guidelines developed by NMFS provide some guidance on what that means.

In those guidelines, “Catch” is defined as

“the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries.  Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded.”

“Acceptable biological catch” is

“a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the calculation of [the overfishing limit], any other scientific uncertainty, and the Council’s risk policy.”

And an Annual Catch Limit is

“a limit on the total annual catch of a stock or stock complex, which cannot exceed the [acceptable biological catch], that serves as a basis for invoking [accountability measures].  An [annual catch limit] may be divided into sector ACLs.  [emphasis added]”

When you apply those guidelines to the Mid-Atlantic Council’s recent black sea bass actions, a number of problems emerge.

First, there’s the fact that the newly recommended regulations, if adopted by NMFS, will result in a recreational catch that exceeds the nominal annual recreational catch limit by more than 20 percent, and thus should trigger the need for accountability measures being imposed in 2021, even though anglers followed the Council’s newly-adopted rules.  

There is a real question as to whether a management action that has less than a 50 percent chance of constraining recreational landings to the recreational harvest limit is even valid under the rule created by the court in Natural Resources Defense Council v. Daley, 209 F. 3^rd 747 (DC Circuit, 2000), which requires that fishery management actions must have at least a 50 percent chance of success to be deemed valid.

Then there’s the question as to whether the stated annual recreational catch limit of 5.81 million pounds is a valid figure at all, or whether the true recreational catch limit is the 7.33 million pounds of black sea bass that will probably be landed pursuant to the status quo regulations recommended by the Council.  

That’s a very important question, because as stated above, the annual catch limit may not exceed the acceptable biological catch.  Yet the Monitoring Committee report states that, with the status quo rules in effect, the 2020 black sea bass catch will exceed the ABC by 12 percent.

That would seem to be a clear violation of both the Guidelines, which don’t have the force of law, and Section 302(h)(6) of Magnuson-Stevens, which obviously does.

NMFS could try to get out of that bind by arguing that the recreational catch limit really is 5.81 million pounds, and that, added to the other sources of catch, still results in a catch limit that is below the ABC.  However, they tried a similar argument before, up in New England, and failed.  

The action titled Conservation Law Foundation v. Pritzker, 37 F. Supp. 3^rd 254 (Dist. Ct. DC, 2014) was brought after NMFS adopted an annual catch limit for Gulf of Maine cod that was below the relevant acceptable biological catch, but then also adopted something called a “potential total catch” that included both the annual catch limit and a limited carryover of uncaught cod from the previous year, which taken together exceeded the ABC.

NMFS argued that such structure passed muster under Magnuson-Stevens, because the designated annual catch limit remained below the ABC, and did not include any possible carryover, but the court dismissed that argument, saying

“It is simply nonsensical to claim that the ultimate bound set on the amount of fish caught yearly is not an annual catch limit.  The ‘total potential catch’ is plainly an ACL, and ACLs may not exceed the [Scientific and Statistical] Committee’s recommended levels.

“…If the [National Marine Fisheries] Service’s actions violate the plain language of the Act—regardless of whether those actions are good policy or would otherwise be acceptable under the Service’s own regulations—then that is the end of the Court’s inquiry.”

The “potential total catch” was found to be the true annual catch limit.  

Following the logic of the court’s decision in Conservation Law Foundation v. Pritzker, it would not be difficult to decide that the 7.33 million pounds of recreational black sea bass landings likely to result from status quo regulations would also constitute the “ultimate bound on the amount of fish caught yearly,” would thus represent the true 2020 recreational catch limit for black sea bass, and that such catch limit, when combined with the other sources of catch, is invalid, as it would lead to an annual catch limit higher than the ABC.

It’s possible that NMFS is aware of another provision of Magnuson-Stevens that would justify adopting status quo regulations, and it’s also possible that the agency will ultimately reject such regulations based on the principles set forth above.  It’s also likely that, from a practical legal standpoint, it won’t really matter, because the big conservation groups aren’t really focused on black sea bass management and, as in the case of scup, are unlikely to challenge the Council’s black sea bass decision—should NMFS endorse it—in court.

And that’s too bad, because there is an important issue at stake.

While the Council had good reasons to support the status quo regulations, I’ve been involved with fisheries issues long enough to know that people can always find a good reason for doing the wrong thing.  And violating the clear language of Magnuson-Stevens, for any reason, is wrong.

The federal fisheries management system works so well exactly because Magnuson-Stevens lays out strict standards that the regional fishery management councils, and NMFS, must follow, no matter how badly they might want to do otherwise.  

If the NMFS and the councils are allowed to let those standards slide, just because they think that they have a good reason tor ignore the law, it will just keep getting easier and easier to find more good reasons to make exceptions to Magnuson-Stevens' management standards.

Do that long enough, and federal management could easily lose its effectiveness, and begin to look like what passes for management at the ASMFC, where the various management boards are skilled at finding reasons not to make the hard decisions needed to conserve and rebuild the fish stocks that they are entrusted to protect.

Sometimes, upholding the law and sticking to standards can lead to needlessly harsh and unpopular actions, that seem to make little sense at the time.  But it’s better to be needlessly strict on a few occasions, and maintain healthy fisheries, then to let standards lapse and allow years of hard-won gains slip away.

THE ATLANTIC STATES MARINE FISHERIES COMMISSION: TIME TO LEARN FROM THE PAST

“Those who cannot remember the past are condemned to repeat it.” George Santayana’s words have been repeated so often that they’ve become a cliché.

Yet, repeated or not, they’re undoubtedly true. But when it comes to fisheries matters, merely remembering the past isn’t enough; in order to prevent making the same mistakes over and over again, fisheries managers must not only remember the past, but also learn from it.

Today, we can look to the federal fisheries management system with pride, and rightly call the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in federal waters, as the most effective, and most comprehensive, fishery management law in the world. Yet things were not always that way.

When Magnuson-Stevens’ forerunner, the Fishery Conservation and Management Act of 1976 (1976 Act), was signed into law, Congress’ primary intent was to force most foreign vessels to fish 200 miles or more from the United States’ shores, so that domestic fish stocks were not threatened by foreign fleets. Protecting such stocks from the United States’ fishermen was, at best, a secondary consideration.

The 1976 Act established the regional fishery management council system, creating eight such councils that were, and still are, peopled largely by representatives of the fishing industry. The councils were charged with conserving and managing the nation’s living marine resources, but during the two decades that followed the passage of the 1976 Act, they spent most of the time protecting the fishermen’s interests, and not those of the fish.

The 1976 Act required that stocks be managed for “optimum yield,” which it defined, in part, as “the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.” The “as modified” language in that definition sounded a death knell for the health of many fish stocks, as councils routinely established optimum yields that began with maximum sustainable yield (MSY)—the most fish that could be removed from the stock without causing long-term harm—and then “modified” that figure upwards due to the most basic economic factor of all: Fishermen wanted to maximize profits in the short term.

A 1995 article, “Twilight of the Cod,” which appeared in Discover magazine, described how that worked out in New England, which once hosted some of the most productive fisheries in the world.

“During the 1980s the New England [Fishery Management] council proved itself unwilling to control fishing. Indeed, one of its early actions, in 1982, was to eliminate catch quotas. Its goal, it said, was a simpler system that allowed the fishery to operate in response to its own internal forces. As the decade progressed, the fishery did just that—and as [National Marine Fisheries Service] scientists warned of declining stocks of cod, haddock, and yellowtail flounder, the council dithered.”

As a result, stocks of most New England groundfish quickly declined. Some collapsed. Many have yet to recover.

It was clear that the fishermen and fishing industry representatives on the regional fishery management councils were unwilling to regulate themselves and, given the choice, would always opt for maximizing their income in the short term, rather than assuring the long-term sustainability of the nation’s fish stocks. In response, Congress amended the 1976 Act by passing the Sustainable Fisheries Act of 1996 (SFA). The result created a Magnuson-Stevens that was very similar to the law that exists today.

The old definition of “optimum yield” was changed under the SFA, to read “the maximum sustainable yield from such fishery, as reduced by any relevant economic, social, or ecological factor. [emphasis added]” Optimum yield could no longer be set above MSY; the prospect of greater economic gain could no longer be used to justify overfishing any fish stock.

Under the SFA, overfishing wasn’t tolerated at all. And for the first time, regional fishery management councils were required to rebuild overfished stocks within a ten-year period if it was biologically possible to do so, unless such stock was subject to an international fisheries agreement that established a different rebuilding timeline. Fishery management measures had to be based on the best scientific information available.

If the National Marine Fisheries Service (NMFS) failed to uphold the standards that the SFA established for federal fisheries managers, its decisions could be challenged in federal court. That’s exactly what happened after NMFS ratified a Mid-Atlantic Fishery Management Council amendment to the summer flounder management plan that was unlikely to prevent overfishing. The Natural Resources Defense Council sought judicial review of the amendment and, in the landmark decision Natural Resources Defense Council v. Daley, a federal appellate court established the principal that any federal fishery management action must have at least a 50 percent probability of achieving its goals. Any management action that fell short of that standard was deemed to be legally flawed.

New management actions that met the court’s standard were put into place, and fish stocks began to increase, but overfishing still plagued many others. In response, Magnuson-Stevens was amended again in 2006. The new amendment required regional fishery management councils to establish annual catch limits for all managed stocks, required such councils to hold fishermen accountable when they exceeded such limits, and prohibited the councils from setting catch limits higher than the “allowable biological catch” for each stock established by the scientists on the councils’ Scientific and Statistical Committees.

As a result of the SFA and the 2006 amendments to Magnuson-Stevens, federal fisheries managers have had substantial success in rebuilding fish stocks. 46 once-overfished stocks have been fully rebuilt, while many others are no longer overfished, and well on their way to recovery. Only 28 out of 321 stocks—just 9 percent—are experiencing overfishing.

Federal fishery managers can be proud of such success. Unfortunately, the inshore fisheries of the Atlantic Coast have yet to enjoy the same sort of effective, science-based management.

Many of those fisheries are managed by the Atlantic States Marine Fisheries Commission (ASMFC), an organization established by interstate compact in 1942, for the purpose of cooperatively managing Atlantic Coast fisheries.

For many years, the ASMFC was merely an advisory body, which had no real authority to manage fish stocks. That changed after the coastal migratory striped bass stock crashed in the late 1970s and showed no sign of rebuilding. It became clear that the states, acting on their own, would not set aside their parochial squabbles and adopt an effective rebuilding plan, so Congress passed the Atlantic Striped Bass Conservation Act (Striped Bass Act) in 1984, giving the ASMFC the authority to impose its striped bass management plan on all member states.

The striped bass recovered as a result, and Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Coastal Fisheries Act) in 1993, which gave the ASMFC management authority over all species under its jurisdiction. It seemed like a promising move.

At the ASMFC, each species is managed by a separate species management board. Like the regional fishery management councils, the various species management boards are dominated by fishermen or representatives of fishing-related industries, who have an economic interest in the fisheries they manage. But unlike the regional fishery management councils—or, perhaps more to the point, like the regional fishery management councils prior to passage of the SFA—there are no legal limits on the exercise of the ASMFC’s discretion.

Thus, the ASMFC’s management boards are free to ignore the best scientific information available, and to allow short-term economic considerations to shape management actions. They are not required to end overfishing, not required to rebuild overfished stocks, not required to set annual harvest limits, and not required to hold fishermen responsible when they overfish. They are not even required to enforce the provisions of their own fishery management plans.

Even if a management action is completely arbitrary and capricious, and a clear abuse of management board discretion, stakeholders have no recourse to the courts, as a 2010 court decision found that the ASMFC’s management actions are not subject to review under the federal Administrative Procedure Act.

Given how closely today’s ASMFC management boards resemble the regional fishery management councils of twenty-five years ago, it should hardly be surprising that they yield similar results: Fish populations that are, for the most part, depleted or in decline. Out of the 22 stocks managed solely by the ASMFC, 10 are overfished/depleted, only 4 are not, and the status of the other stocks is unknown.

Stocks that are jointly managed by the ASMFC and NMFS are faring much better, with only 3 out of 9 overfished. That success is hardly surprising, as the management plans for such stocks are governed by Magnuson-Stevens, which sharply curtails the discretion of the ASMFC’s management boards.

Whether a person measures from 1942, when the ASMFC was created, from 1984, when the Striped Bass Act was passed, or from 1993, when the Coastal Fisheries Act was became law, one sobering fact remains true: the ASMFC has never in its history rebuilt an overfished stock and then maintained that stock at sustainable levels.

The ASMFC came close to doing so with striped bass, a stock that it successfully rebuilt after the stock collapsed in the late 1970s and early 1980s. But when a period of below-average spawning success caused that stock to begin to decline over a decade ago, the ASMFC failed to respond in time to prevent the striped bass stock from experiencing overfishing, and becoming overfished once again. We can only hope that, this time, the rebuilding effort will again be successful.

But there is no guarantee that will occur.

The only thing that almost certainly is guaranteed is that, so long as the ASMFC’s species management boards are able to craft management measures that elevate the wants of the fishermen above the needs of the fish, the stocks that they manage are unlikely to thrive.

It is time to learn from the past, when a similar situation plagued the regional fishery management councils. That past teaches that the fishermen who sit on a management body will consistently favor policies that benefit themselves in the short term, regardless of how such measures affect the long-term health of fish stocks. The past teaches that the only way to ensure the sustainability of fish populations is to limit such fishermen’s discretion, by imposing legal requirements that force them to follow the science, end overfishing and promptly rebuild overfished stocks.

If the ASMFC’s management boards fail to comply with such legal requirements, the federal courts must have jurisdiction to review ASMFC management actions, and overturn those which fail to protect the long-term health of fish stocks.

Thus, it is time to consider legislation which amends either Magnuson-Stevens or, more likely, the Coastal Fisheries Act, legislation that might be deemed the “Sustainable Atlantic States Fisheries Act,” which will compel those who sit on ASMFC’s management boards to accept their responsibility to manage fish for the good of the public, instead of themselves.

If the past teaches us anything about fisheries management, it teaches us that.

-----

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/