As Different as Summer and Winter

Winter Flounder

The fishing season for summer flounder, locally known as “fluke,” has just opened up here in New York. The waters are cooler than they should be in mid-May, so the fluke were still pretty sluggish, but even so, opening day saw anglers catch a reasonable number of fish.

In New York, fluke less than 18 inches long must be returned to the water. Most of the summer flounder caught on the first day of the season were too small to keep, but there were enough bigger fish around to keep anglers happy and to assure that most of those anglers got to take some fish home.

The most fortunate anglers latched onto true “doormats,” summer flounder that weighed more than ten pounds. A fluke that size is about ten years old, which seems pretty impressive. It seems even more impressive when you realize that just twenty-five years ago, biologists surveying mid-Atlantic fish stocks had great difficulty finding any fluke more than two years old and perhaps 14 inches in length.

In 1989, summer flounder levels had fallen to the lowest levels of abundance ever recorded for the species. The Mid-Atlantic Fishery Management Council made desultory efforts to begin rebuilding the stock, but continued to elevate short-term economic interests over the long-term health of the stock.

Such deference continued even after the Sustainable Fisheries Act of 1996 became law, and required stocks to be rebuilt within 10 years. The Mid-Atlantic Council, apparently not believing that such law would be vigorously enforced, responded with a fishery management plan for summer flounder that was extremely unlikely to succeed. In fact, there was a better than 80% chance that it wouldn’t.

Prior to the Sustainable Fisheries Act’s amendments to the Magnuson-Stevens Fishery Conservation and Management Act, such a high probability of failure wouldn’t have turned many heads; it was merely business as usual. However, although people were loath to admit it, the Sustainable Fisheries Act had completely changed the management landscape.

That quickly became apparent after the Natural Resources Defense Council challenged the summer flounder management plan in federal court, claiming that it failed to meet the minimum standards imposed by the new law. A federal appeals court agreed, noting in a scathing opinion that,

“The disputed 1999 [total allowable catch] had at most an 18% likelihood of achieving the target [fishing mortality]. Viewed differently, it had at least an 82% chance of resulting in [a fishing mortality] greater than the target [fishing mortality]. Only in Superman Comics Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as succeed offers ‘a fairly high level of confidence.'”

Chastened by the court’s decision, the Mid-Atlantic Fishery Management Council changed the way it did business. It adopted firm, poundage-based annual catch limits, and made a bona fide effort to rebuild the summer flounder population within ten years.

The harvest cutbacks required by the rebuilding effort made plenty of people unhappy, none more so than the recreational fishing industry, which blamed the new rules for a decline in angling activity. That industry regularly impugned fisheries managers and condemned federal fisheries law, claiming that it unduly harmed their businesses. However, when they finally chose to litigate the matter in 2006, the court, in United Boatmen v. Carlos Gutierrez et al, found their arguments without merit, noting,

“With federal and state control, and cooperation among the many agencies and private parties involved, the fluke fishing stocks in this area have improved dramatically over the last few years. If present federal and local policies are followed—and nature cooperates—the available healthy fluke population should by 2010 permit substantially higher sustainable fishing quotas.”

Those policies worked well enough that when opening day in New York dawned cool, foggy and damp, the fluke moving into the bays were met by a fleet of party boats carrying good loads of passengers, and by many private fishing vessels as well.

They were also met by their distant relatives, the winter flounder, which were headed the other way. But while the incoming body of fluke was robust, the outgoing movement of winter flounder was spotty and thin, a body of fish far smaller than it was a few decades ago.

Winter flounder are managed by the New England Fishery Management Council, which, although also governed by the Magnuson-Stevens Act, has long chafed at the restrictions that federal law imposed. Thus, instead of taking the path of the Mid-Atlantic Council and embracing effective fishery management measures, the New England Council did all that it could to evade the intent of the law.

The New England Council, always averse to science-based annual catch limits and the restrictions on landings that they ensured, adopted “alternative” management measures such as restrictions on days boats could be at sea. As a result, landings were never effectively constrained. While some fish, most notably haddock, managed to eventually recover, the state of others grew worse.

The southern New England/mid-Atlantic stock of winter flounder, which are caught in New York, suffered more than most.

At best, the stock is currently at about 9% of its spawning potential. As a practical matter, things seem to be far worse. Recreational landings in New York fell from an estimated 7,400,000 in 1984 to just 331,000 in 1994 and a mere 24,000 last season. Yet, although managers were fully cognizant of the winter flounder’s steep and relentless decline, they seemed both unable and unwilling to end it.

Yet even with populations falling so low that a team of biologists at Stony Brook University have warned that New York’s winter flounder are threatened by inbreeding, the Atlantic States Marine Fisheries Commission, which is not governed by the Magnuson-Stevens Act and generally employs a “flexible” management approach, has taken action to increase the recreational kill.

At its February 2014 meeting, it chose to extend the recreational winter flounder season from 60 days to 10 full months. Its sole excuse for doing so was “to increase fishing opportunities in the southern range where other species’ availability may be limited later in the year.”

The fact the winter flounder’s very chances for survival may be limited didn’t seem to concern them at all.

And thus we are presented with the clash of two management systems. One, the approach of the Mid-Atlantic Fishery Management Council, which embraced the spirit of Magnuson-Stevens, and has left us with restored populations of fish, with none overfished and none experiencing overfishing. The other is the approach taken by the New England Fishery Management Council and the Atlantic States Marine Fisheries Commission, which embrace “alternative” management approaches and “flexibility” in fisheries management, and preside over many overfished stocks, some of which have collapsed.

It’s an important conflict to remember, because the House of Representatives will soon be debating H.R. 1335, the so-called Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, which will abandon the current, successful approach to fisheries management used to recover the fluke, and replace it with the sort of “alternative” and “flexible” measures that failed to recover the flounder.

In that debate, Congress will be forced to choose between management approaches that differ from one another in no less a degree than summer differs from winter.

Winter flounder photo courtesy NOAA Fisheries.

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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