People don’t like to be told what to do. Fishermen are no exception.

Ask any fisheries managers who ever imposed an annual catch limit to regulate landings.

Fishermen’s aversion to annual catch limits has always been particularly acute in the northeastern United States. The New England Fishery Management Council (NEFMC) refused to impose hard poundage quotas on any fishery under its jurisdiction until compelled to do so by language contained in the 2006 reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which required that each fishery management council to “develop annual catch limits for each of its managed fisheries.”

Prior to that requirement, NEFMC depended on limiting days at sea, closing areas to fishing and similar attempts to restrain fishing effort as alternatives to hard caps on the number of fish that could be landed and sold.

The alternatives didn’t work. When the National Marine Fisheries Service (NMFS) conducted an operational assessment of New England groundfish stocks in 2015, it found that half—ten out of the twenty managed stocks—remained overfished, while the status of three others remain unknown. Six of those twenty stocks were still subject to overfishing (with the overfishing status of two more unknown).

Despite that clear failure of alternatives to hard poundage quotas, some members of the fishing community have failed to learn from NEFMC’s missteps.

H.R. 1335, the House of Representatives’ effort to reauthorize and revise Magnuson-Stevens, contains language that would allow “A fishery management plan, plan amendment, or proposed regulations [to] use alternative rebuilding strategies,” and includes an entire section that would give NMFS “the authority to use alternative fishery management measures in a recreational fishery.”

The latter provision was probably inspired by the organizations behind a report entitled A Vision for Managing America’s Saltwater Recreational Fisheries, which claims that

That sounds good, but there is one very big problem: The statement isn’t quite true. The striped bass population has been in decline for the last decade or so, and the lack of poundage-based quotas has contributed to that decline.
The problem with managing striped bass, or any other stock, by means of harvest rate rather than a poundage quota is that such rate cannot be quickly nor easily determined. Around February 15th, NMFS provides estimates of the past year’s recreational landings, denoted in both pounds and in the number of fish killed. Estimates of recreational landings for shorter periods of time, the two-month-long “waves” that managers use to divide the fishing year, are usually available 45 days after each such wave ends.

Such rapid reporting lets managers know, in a timely fashion, whether fishermen exceeded their quota in any particular year, and also provides information on in-season landings trends that, if harvest greatly exceeds expectations, allows managers to intervene before overfishing gets too far out of hand.

That can’t be done when regulations are based on fishing mortality rates, which can only be determined through the stock assessment process.

Preparing a stock assessment of any sort, even just an update of work already done, takes a lot of time. During that time, overfishing can continue unabated, and a shrinking stock can decline even farther.

That’s exactly what happened with Atlantic striped bass, which, far from demonstrating the value of mortality-based management, actually illustrates just how easily such an approach can go wrong.

Anglers began to complain about decreasing striped bass abundance beginning around 2007. A stock assessment update released in late 2011 supported the anglers’ observations; it warned that the population was declining steadily and could soon become overfished.

However, the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board (Board) chose to take no action, because the fishing mortality rate threshold hadn’t yet been exceeded, and decided to wait until a benchmark stock assessment was released.

The benchmark stock assessment wasn’t completed until two years later, in October 2013. It indicated that the stock had endured overfishing in six of the previous ten years, and that there was a good chance that it would become overfished by 2015.

Again, the Board chose to take no immediate action to reduce fishing mortality. Instead, it created a new draft addendum and sought public comment, asking for input not only on proposed harvest reductions, but also on whether it should rely on the new, peer-reviewed stock assessment at all.

Finally, fully three years after it was first notified of a sharp decline in the stock, the Board adopted the new addendum to the striped bass management plan, which included regulations intended to reduce harvest by 25%, beginning in 2015. In the meantime, striped bass abundance continued to decline, although it appears that the stock hasn’t yet become overfished, and may begin to rebuild slightly in 2016.

That’s hardly a ringing endorsement of fishing mortality-based fisheries management, which has proven itself to be an unwieldy system that is largely unresponsive to declines in the health of the stock.

Of course, that’s exactly what makes “alternate fishery management measures” so attractive to their proponents.

They lack the precision of hard poundage quotas, and don’t allow fisheries managers to respond quickly when threats to fish stocks arise. They encourage fisheries managers to procrastinate, and allow overfishing to go on, unabated, until a “long-term harvest rate” can be discerned.

They prevent some stocks from recovering, and drive other stocks into decline, but they keep harvests high in the short term, which is all that matters to some.

At the same time that fisheries managers, employing hard quotas, successfully worked to rebuild summer flounder and scup, black sea bass and Gulf red snapper, other managers used alternative management measures to preside over the collapse of winter flounder and cod, and the decline of striped bass and weakfish.

As we lawyers say, res ipsa loquitur. The thing speaks for itself.