In Fisheries, The “Best Scientific Information” Should At Least BE Science

Recreationally caught bluefish

When it comes to fisheries management, you can’t have too much data.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) requires that “Conservation and management measures shall be based upon the best scientific information available,” and that’s a good thing.

Yet it also creates a problem, for a penny-pinching Congress has long denied the National Marine Fisheries Service (NMFS) the people and money required to assemble all of the data that’s needed to assess and manage fish stocks.

As noted by the South Atlantic Fishery Management Council (SAFMC),

“the need for fishery data collection far outweighs the resources often available (both time and funding) and management partners are constantly working to fill those data gaps with very limited resources. With such limited resources, managers are forced to use the data that are available to make management decisions, often referred to as ‘best available science.’ The term ‘best available science’ has become a source of frustration among fishermen because data used to make management decisions is often perceived as not matching up with what fishermen see happening on the water.”

Courts have repeatedly recognized that fact when regulations are challenged, saying that

“the standard is a practical one, requiring only that fisheries regulations be diligently researched and based on sound science…NMFS is not obliged to rely upon perfect or entirely consistent data…some degree of speculation and uncertainty is inherent in agency decisionmaking…the agency must utilize the best scientific data available, not the best scientific data possible. [citations omitted]”

Such “speculation and uncertainty” makes regulations, and the science which underlies them, vulnerable to attacks from fishermen who are forced to take harvest reductions and who claim that the science is “flawed.”

“Citizen Science”: A Solution for Better Data

The SAFMC has developed a cooperative “citizen science” program, which recruits fishermen to assist biologists, in order to both solve the resource problem and gain credibility with stakeholders. The assistance can take many forms. Sometimes, scientists pay fishermen for the use of their vessels, which are used to conduct research. At other times, fishermen approach scientists with ideas for research projects, or scientists consult with fishermen who have local knowledge that is relevant to their research needs. At all times, the scientists determine the appropriate protocols for collecting and analyzing the data, which may be used for stock assessments or other basic research. From all accounts, the program works very well.

A less successful, so-called “research set-aside” program, was run by the Mid-Atlantic Fishery Management Council (MAFMC) for many years before being suspended, and perhaps permanently terminated, in 2014.

The MAFMC program didn’t merely collaborate with fishermen; it depended on fishermen for all of its funding. Each year, the MAFMC would set aside 3% of the catch limit for each of its managed species. Those fish were later auctioned off, in lots, by the National Fisheries Institute, a commercial fishing trade group. Fishermen who purchased research set-aside quota through the auction were then allowed to land such fish at times or in quantities that would otherwise be prohibited, which provided an economic incentive to participate in the program.

Unfortunately, the program also created temporary cover for people who illegally landed fish, claiming that such fish were part of their set-aside quota. In recent years, many hundreds of thousands of pounds of summer flounder were illegally landed, and a number of fishermen were convicted of serious fisheries violations.

If that were not bad enough, the research conducted pursuant to the program was often ill-conceived and badly executed. A memo from Richard Seagraves, MAFMC’s senior staff scientist, advised that

“the RSA Program has funded 41 research projects at a total cost of $16,321,643. While there were projects which produced tangible results that were subsequently incorporated into the Council’s management programs…there were also a number of projects which, after completion, failed to pass peer review and could not be used for science or management purposes.

“The fact that a number of RSA projects failed scientific review after completion raised major concerns about the process by which RSA Proposals were vetted and the oversight of the projects as they were being conducted…[C]onsidering the costs associated with administration and enforcement, as well as the value of the RSA quota, it’s probable that the program costs have far outweighed the benefits to the Council and public.”

Thus, it’s clear that collaborative science isn’t enough. It has to be good collaborative science.

H.R. 1335 Does Not Promote Good Science

Yet, for all of its flaws, MAFMC’s research set-aside program represented a far better way to fill the science gap than does language contained in H.R. 1335, the House of Representatives’ ill-begotten effort to reauthorize Magnuson-Stevens.

That bill provides that

“Fisheries management is most effective when it incorporates information provided by governmental and nongovernmental sources, including State and Federal agency staff, fishermen, fishing communities, universities, and research institutions. As appropriate, such information should be considered the best scientific information available and form the basis of conservation and management measures as required by this Act.”

Should that provision ever make it into Magnuson-Stevens, a regional fishery management council, composed mostly of fishermen, would be able to base a fishery management plan on the bluster of colleagues who claim “There are plenty of (insert name of fish) out there!” while ignoring the contrary conclusions of a peer-reviewed stock assessment.

It’s not difficult to imagine what such management plan would look like. Maryland provides a recent example.

For many years, Maryland has been trying to restore oyster beds devastated by disease, overfishing and increasing siltation. As part of that effort, it has partnered with groups including the National Oceanic and Atmospheric Administration, the U.S. Army Corps of Engineers (Corps) and the locally-organized Oyster Recovery Partnership to create a detailed, science-based plan to restore oyster reefs in the tributaries of Chesapeake Bay.

However, Maryland watermen who still harvest oysters have not embraced the restoration program, which has placed 25% of the state’s oyster beds off-limits. Such restoration projects are viewed as elevating the oysters’ role in the overall ecosystem above producing shellfish for harvest.

Thus, three watermen met with Maryland’s Lieutenant Governor, Boyd Rutherford last fall, to question the restoration project’s value. Using data gleaned from a Maryland Department of Natural Resources website, the watermen claimed that oyster reproduction is actually better in Broad Creek, which is still open to harvest, than it is in Harris Creek, where a multi-million dollar effort to restore its oyster population was recently completed.

The watermen claimed that harvest was actually better for the oysters than leaving the reefs unfished, alleging that the dredges that they used to tear the shellfish loose from the bottom benefitted the remaining oysters by removing suffocating silt from the reef.

A spokesperson for the Corps challenged the watermen’s claims, noting that

“a significant portion of the oysters planted are not yet at reproductive age…not enough time has passed to allow the full impact of the investments to be seen.”

Even so, Maryland opted to suspend the oyster restoration work until a report on the state’s oyster management program is completed sometime in July 2016. Such delay will prevent extensive work from moving forward in the Tred Avon River, and has already caused Maryland to lose a million dollars in federal funding. Despite that, a spokesman for Maryland Governor Larry Hogan calls the holdup, requested by the watermen, a “common sense measure.”

William Goldsborough, a scientist for the Chesapeake Bay Foundation, disagrees. He says that

“I respect these guys’ on-water observations, but it’s not the same as science.”

No, fishermen’s observations are not the same as science — yet. But if H.R. 1335 is passed, they will be.

And that would be a bad thing.

Top Photo: A Recreationally-Caught Bluefish

About Charles Witek

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

Leave a Reply

Your email address will not be published.