Commerce Department’s Summer Flounder Decision Undermines ASMFC’s Authority To Manage Fish Stocks

Summer Flounder

Author Charles Witke will testify at a House Natural Resources Committee hearing on the Magnuson-Stevens Act on July 19th. In this post, he explains why the recent Commerce Department decision undermines ASFMC and the future of cooperative interstate fisheries management.

Late in the afternoon of July 11, 2017, the United States Department of Commerce (Commerce) notified the State of New Jersey that it may maintain its existing regulations governing the recreational summer flounder fishery, and need not comply with the management measures imposed by the Atlantic States Marine Fisheries Commission (ASMFC).

In late 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Act), which granted ASMFC the authority to develop fishery management plans for a number of East Coast species, including summer flounder. Pursuant to the Act, if a state failed to adopt regulations consistent with any ASMFC fishery management plan, ASMFC could find such state to be “out of compliance” and forward such finding to Commerce. If it agreed with ASMFC’s finding, Commerce would then impose a moratorium on all fishing for the relevant species in the waters of the non-compliant state.

For nearly twenty-four years, ASMFC effectively employed the “carrot” of sustainably-managed fisheries, balanced against the “stick” of a possible moratorium, to keep its member states working cooperatively, and adhering to coherent fishery management plans.

Since the Act became law, states went out of compliance on twenty different occasions. The first nineteen times, Commerce endorsed ASMFC’s findings, and states quickly adopted compliant regulations to avoid having their fisheries shut down.

Thus, Commerce’s recent decision to reject ASMFC’s findings, and uphold New Jersey’s summer flounder regulations, represents a watershed in East Coast fisheries management.

It pushes the future of ASMFC’s cooperative interstate fisheries management program into new and completely unknown territory.

Looking at the issue from a scientific viewpoint, Commerce’s decision is surprising.

At its February 2017 meeting, ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board (Management Board) adopted an addendum to its fishery management plan intended to address both a steady decline in summer flounder numbers and overfishing by recreational anglers.

Pursuant to that addendum, most New Jersey anglers, as well as anglers in both Connecticut and New York, would have their summer flounder bag limit reduced from five fish to three and see the minimum size limit increased from 18 to 19 inches, but would keep the same 128-day-long season that they enjoyed in 2016.

The reduction in recreational landings was necessary to prevent a further decline in summer flounder abundance. In July 2016, the Mid-Atlantic Fishery Management Council’s Scientific and Statistical Committee noted that “the stock biomass is dangerously close to being overfished, which could happen as early as next year if increased efforts to curb fishing mortality are not undertaken.” [emphasis in original]

Both Connecticut and New York understood the need to reduce fishing mortality, and adopted compliant regulations. New Jersey chose to take a defiant stance. Bob Martin, Director of the state’s Department of Environmental Protection, claimed that the addendum “imposes a de facto moratorium on recreational summer flounder fishing in my state,” and that this action “is also disproportionately damaging to New Jersey compared to other states.”

New Jersey refused to adopt the regulations mandated by the Management Board, and instead adopted rules that did reduce the bag limit to three fish but retained the 18-inch size limit, and reduced the length of the season from 128 to 104 days. The state argued that such regulations had “conservation equivalency” when compared to those adopted by the Management Board, and asked ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee (Technical Committee) to evaluate them.

In its presentation to the Technical Committee and Management Board, New Jersey argued, “Proposed measures require substantial reductions to recreational harvest that would lead to excessive biological, social, economic and regulatory concerns for New Jersey’s recreational fishery.”

New Jersey admitted that its regulations would only reduce recreational summer flounder harvest by 24%, far short of the 33.3% reduction imposed by the Management Board’s addendum. But the state argued that, by raising the minimum size by an inch, the addendum would lead to many undersized fish dying after they were released; because of such discard mortality, New Jersey claimed, the addendum only reduced total summer flounder mortality by 14%. It then claimed that its regulations would reduce discard mortality, and stated that “our proposal will increase the total mortality savings from 14% under the Addendum to 30% under the New Jersey proposed option.”

The Technical Committee found a number of problems with the New Jersey proposal. It summarized its findings by saying that

“in the standard comparison of harvest, the NJ proposal was not conservationally equivalent to the Addendum…It is important to understand that this standard is a component of the Summer Flounder [Fishery Management Plan] as the recreational fishery performance is evaluated against the [Recreational Harvest Limit]. When examining the new and separate comparison of total recreational fishing removals (harvest and discard mortality in total), there was too much uncertainty to determine equivalency between the NJ proposal and the Addendum…due to unquantifiable reductions in discard mortality in the proposal and unaccounted for discards during the closed seasons.”

The Management Board discussed the New Jersey proposal and the Technical Committee’s response during a conference call held in May. I sat in on the call and listened to the proceedings. No one was convinced by New Jersey’s arguments; when the state moved that the Management Board approve its proposal, such motion failed for lack of a second.

On June 1, ASMFC found New Jersey out of compliance with the summer flounder fishery management plan, and forwarded a notice of its findings to Commerce.

At that point, politics began to play a role. And looking at the issue from a political viewpoint, Commerce’s decision wasn’t surprising at all.

Members of New Jersey’s Congressional delegation began petitioning Commerce Secretary Wilbur Ross, seeking relief from ASMFC’s planned summer flounder management measures, well before ASMFC found the state out of compliance. New Jersey Governor Chris Christie also raised the issue with Secretary Ross in early March.

They had good reason to believe that the new Commerce Secretary would by sympathetic to New Jersey’s pleas. Secretary Ross has said that he wanted to exploit fish stocks at maximum sustainable yield. In his confirmation hearing, he also said, “Given the enormity of our coastlines, given the enormity of our freshwater, I would like to try to figure out how we can become much more self-sufficient in fishing and perhaps even a net exporter.”

His decision to override ASMFC’s non-compliance finding was very consistent with such a worldview. It was probably also foreshadowed by a decision that he made last June to open the private-boat recreational red snapper fishery in the Gulf of Mexico, even though Commerce acknowledged that such reopening “will necessarily mean that the private recreational sector will substantially exceed its annual catch limit,” and so “may delay the ultimate rebuilding of the stock by as many as 6 years.”

Its recent summer flounder and red snapper decisions suggest that Commerce values immediate economic returns more than it does the long-term health and sustainability of America’s marine resources.

What will happen next?

At ASMFC, more states will probably use questionable, technically deficient data to justify going out of compliance with various fishery management plans, believing that Commerce will again reverse any findings of non-compliance.

Striped bass may be particularly threatened.

At ASMFC’s Striped Bass Management Board’s February 2017 meeting, a Maryland charter boat captain said that for striped bass between 18 and 20 inches, “the mortality rate during the warm water season far surpasses any savings in [bass], and places a hardship on our charter fishery and recreational fishermen.”

Another argued that “the economic impact is significantly different among our states, with Maryland experiencing significant burden. There are concerns that economic decline will increase in 2017, while conservation is our utmost priority and concern, we request that as options to maintain a sustainable fishery are contemplated, consideration be given to the economic health of many small businesses that rely on the continuation of our fishery.”

At the same meeting, Michael Luisi, of Maryland’s Department of Natural Resources, moved to initiate an addendum to increase the striped bass harvest in order to address such concerns, concerns that weren’t very different from those expressed by New Jersey with respect to summer flounder.

At its May meeting, ASMFC’s Striped Bass Management Board decided not to move forward with the new addendum. Yet Maryland’s concerns have not gone away. After Commerce’s recent summer flounder decision, it’s not hard to imagine Maryland reducing its minimum size for striped bass, arguing that a smaller, 18-inch minimum would provide economic benefits to its fishing industry while reducing dead discards, and thus would not be out of compliance with ASMFC’s striped bass management plan.

And it wouldn’t be hard to imagine Commerce agreeing with that argument.

When Commerce decided to overrule ASMFC, it opened Pandora’s Box, and it’s hard to know exactly what flew out when that box was opened.

Will states now be willing to challenge restrictive black sea bass management measures, given that the latest benchmark stock assessment revealed a biomass more than twice the target level?

Will efforts to manage Atlantic menhaden with so-called ecological reference points, based on the species’ value as forage and not merely as fish meal, be placed at risk because Commerce decides that such measures aren’t needed to support a sustainable menhaden fishery?

We can’t be sure.

But we can be sure that Commerce’s decision to overrule ASMFC on the matter of New Jersey’s summer flounder has seriously eroded ASMFC’s authority, and has thus put the future of cooperative interstate management at risk.

New Jersey has been rewarded for defying ASMFC. It won’t be long before some other state decides that the likelihood of a similar reward far outweighs the chance that a moratorium might be imposed.

And once states no longer fear ASMFC’s stick, there’s little chance that any imaginable carrot will make them comply with its fishery management plans.

About Charles Witek

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

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