The Modern Fish Act…Or The Modern OVERFISHED Act?

Photo courtesy Patrick Paquette

Photo: river herring, courtesy of Patrick Paquette

On April 6, 2017, Rep. Garret Graves (R-Louisiana) introduced H.R. 2023, the so-called “Modernizing Recreational Fisheries Management Act.”

Rep. Graves is the same congressman who, in the last session of Congress, introduced H.R. 3094, the “Gulf States Red Snapper Management Authority Act,” which attempted to strip the National Marine Fisheries Service (NMFS) of its authority to manage red snapper in the Gulf of Mexico, and turn such authority over to the five Gulf states.

Representatives of the angling industry and various “anglers’ rights” organizations, who had previously endorsed H.R. 3094, were quick to embrace Rep. Graves’ new legislation.

Although H.R. 2023 embraces a number of bad ideas, many of the worst appear in the section titled “Limitations to annual catch limit requirement for special fisheries.”

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) requires each regional fishery management council to “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its science and statistical committee or the peer review established” by each such council.

It also requires that every fishery management plan prepared by such council “establish a mechanism for specifying 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 assure accountability.” [emphasis added]

Such accountability measures were not required prior to the 2007 reauthorization of Magnuson-Stevens. Anglers faced no real consequences when they overfished a stock. As a result, regional fishery management councils rarely made a real effort to impose regulations restrictive enough to prevent anglers from exceeding their ACL.

In response, when Congress last reauthorized the law, it required that accountability measures be imposed. The councils were slow to embrace the new provision, but in 2014, a federal district court decided the case of Guindon v. Pritzker, and ordered NMFS to impose accountability measures on red snapper fishermen in the Gulf of Mexico, who had been chronically exceeding their ACLs.

Angling advocacy groups, which already opposed the notion of anglers being held accountable for exceeding their ACL, condemned the court decision. Thus, it is probably not surprising that H.R 2023 contains a provision that reads “Notwithstanding [the requirement to develop annual catch limits for each managed species], a Council is not required to develop annual catch limits” if certain criteria apply.

No such annual catch limits would be required for “ecosystem-component species,” described as “(A) a stock of fish that is a non-target, incidentally harvested stock of fish in a fishery; or (B) a non-target, incidentally harvested stock of fish that a Council or the Secretary has determined (i) is not subject to overfishing, approaching a depleted condition, or depleted; and (ii) is not likely to become subject to overfishing or depleted in the absence of conservation and management measures.”

Such provisions would seriously impair managers’ ability to manage fish species that might not have very much direct commercial or recreational value, but are important to the integrity of marine ecosystems.

Clause (A) would certainly impair managers’ ability to conserve stocks of forage fish. The saga of river herring management efforts at the Mid-Atlantic Fishery Management Council (MAFMC) clearly demonstrates why.

In 2016, the MAFMC considered regulating river herring bycatch by making river herring “a stock of fish” in the Atlantic mackerel fishery. As a stock in the fishery, river herring would have been subject to science-based ACLs that would shut the fishery down once such limits were filled. Ultimately, the MAFMC decided against a “stock in the fishery” designation, and instead placed a river herring catch cap on the mackerel fishery that was not based on optimum yield or any other biological reference point.

H.R. 2023 would eliminate the need to establish ACLs for any forage fish caught as bycatch in any fishery, condemning them all to the river herring’s fate.

Clause (B) puts a wider variety of fish at risk, and employs some very devious language to do so. It would eliminate the need for ACLs for “an incidentally harvested stock of fish that a Council or the Secretary has determined is not subject to overfishing, approaching a depleted condition or depleted… [emphasis added]” “Overfished” stocks aren’t mentioned at all.

That’s significant, since “overfished” is a defined term in Magnuson-Stevens, and tied directly to the sustainability of the stock, while “depleted” is not. Thus, a regional fishery management council could adopt its own definition of “depleted,” declare that it didn’t apply to a particular overfished stock, and so abolish ACLs for the stock in question.

That would seem an attractive option to some snapper-grouper fishermen, who engage in mixed-species fisheries where the risk of accidentally catching and killing overfished (but not necessarily “depleted”) snapper or grouper, in quantities large enough to prevent species’ recovery, can lead to the closure of popular fishing grounds.

The South Atlantic Fishery Management Council recently addressed just that problem.

As NMFS explained in background information supporting proposed regulations, “For snapper-grouper species prohibited from harvest, such as speckled hind and warsaw grouper, fish discarded due to regulations are considered bycatch.  The deep-water snapper-grouper species are further impacted due to high discard mortality rates (low survivability due to barotraumas).  The Council concluded that prohibiting the use of certain fishing gear in specified areas where snapper-grouper are known to occur and possibly spawn would reduce encounters with these species and subsequently provide protection for reproduction.” 

Such closures are resented by anglers who want to be able to continue to fish on what they view as their “traditional fishing grounds.”  By allowing protected deep-water grouper to be designated “ecosystem-component species,” H.R. 2023 would do away with the requirement that an ACL be established for such stocks. More important to the deep-water anglers, it would alleviate the need to impose accountability measures should incidental mortality be high enough to exceed an ACL, since the only accountability measure likely to be effective in such a case would be a regional closure.

Of course, under such circumstances, the populations of overfished grouper would suffer additional stress, but that is not an issue that seems to concern either Rep. Graves or those who support his bill.

Another provision of H.R. 2023 would eliminate ACLs for any stock “that has a life cycle of approximately 1 year,” unless overfishing was occurring, even if the stock was very badly overfished.  The harm such provision could do to forage species such as squids is obvious.

H.R 2023 would also eliminate ACLs for any fish “for which fishing mortality is below the fishing mortality target, and a peer-reviewed stock survey and stock assessment have not been performed during the preceding 5-year time period.”  Once again, the bill takes no account of whether or not a stock is overfished and in need of strict management measures.

For example, the last peer-reviewed assessment of the southern New England/mid-Atlantic stock of winter flounder occurred in 2011; a stock assessment update performed in 2015 showed that the stock was badly overfished, but that fishing mortality was well below target.  Winter flounder were once extremely abundant; in 1985, anglers in the southern New England/mid-Atlantic region harvested more than 16,000,000 fish.  In 2016, the number of fish harvested had dropped to a little over 80,000, barely one-half of one percent of the previous landings.

Yet that is just the sort of overfished stock that H.R. 2023 would exempt from ACLs. It’s not a good idea.

It is also a bad idea to exempt stocks if “the Secretary determines that overfishing is not occurring.” Yelloweye rockfish, managed by the Pacific Fishery Management Council, demonstrate why.

According to NMFS’ most recent report to Congress, the yelloweye rockfish stock is overfished, but overfishing is not occurring. A rebuilding analysis based on the most recent stock assessment found that, if the stock is not subject to any fishing mortality at all, it has a 50% chance of recovering by 2045. On the other hand, if fished at the current overfishing limit, the stock would not be expected to recover in 500 years. Even so, H.R. 2023 would exempt yelloweye rockfish from ACLs….

There foregoing provisions of H.R. 2023 would be bad for the health of our fisheries. However, a final, insidious provision could do the most damage of all.

It would do away with ACLs “for a sector of a fishery that is not monitored by a data collection system determined by the Secretary to be adequate for the development, implementation and enforcement of annual catch limits specific to that sector, based on the evaluation recommended by the National Academy of Sciences in its report entitled ‘Review of the Marine Recreational Information Program (2017)’ of whether the design of a Marine Recreational Information Program for purposes of stock assessment and the determination of stock management reference points is compatible with the needs of in-season management of annual catch limits.”

Since the Marine Recreational Information Program (MRIP) is the only broad-based survey used to gauge recreational landings, should it be deemed inadequate for managing recreational ACLs—and neither Rep. Graves’ bill nor the report that it references provides any guidance on what information an “adequate” data collection system must provide, so such decision might be made on very tenuous grounds—H.R. 2023 could potentially eliminate ACLs for all recreational fisheries, and effectively render anglers completely unaccountable for their overharvest of any managed stock.

Widespread overfishing would be the inevitable result.

In addition, while such provision would effectively remove all discipline from the recreational management process, commercial fishermen, which are unaffected by MRIP, would remain tied to strict ACLs. The combination of recreational overharvest and commercial compliance would create an effective reallocation of fishery resources from the commercial to the recreational sector, in a manner that the court in a recently-decided lawsuit (also, perhaps not coincidentally, arose out of the Gulf red snapper fishery and also captioned Guindon v. Pritzker) found to be patently unfair.

Thus, as the above analysis makes clear, H.R. 2023 is not about “modernized” recreational fishery management, but about taking it backward, to the times before ACLs were required, and anglers were not held accountable when they overfished.

Moving backward is always a mistake.

It is time for the angling rights groups, and the angling industry, to stop longing for the irresponsible ways of their past, and to start moving toward a future when all fishermen, recreational and commercial alike, equitably share the responsibility for maintaining abundant and sustainable fish stocks.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

1 comment on “The Modern Fish Act…Or The Modern OVERFISHED Act?

  1. Atlantic Red Snapper stocks did not collapse because of overfishing by recreational fishermen.
    That’s not a belief that’s a fact. Atlantic red snapper populations collapsed because of commercial fishing namely the gear they were using bottom crawls and roller rig Nets things of that nature we’re destroying the habitat.
    When gear restrictions were put in place the stocks here in Georgia rebounded nicely,, we had plenty of fish no problem going and getting a daily limit of two fish over 20 inches with the season opener almost year-round. Then several years ago big brother in their wisdom decided to close down our Fishery , in their wisdom they said we were overfished even though we had more fish than I’ve had in the 45 years I’ve been blue water fishing.
    Now we have so many red snapper off the coast of Georgia it’s almost impossible to go grouper fishing,, my last trip to my Scamp holes I had to catch 38 red snapper up to 20 pounds to get one grouper.
    Yes the system needs to be overhauled to Regional management there is no way you can manage groundfish stocks on the entire East Coast as one population because they are not.

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