On 4 May, U.S. Federal District Court Judge Michael Simon ruled for fishing and conservation groups on every major issue in a long-standing landmark lawsuit, National Wildlife Federation, et al. vs. National Marine Fisheries Service, et al., challenging the most recent version of the federal Columbia-Snake River Salmon Recovery Plan and Biological Opinion (the “Columbia Salmon BiOp”).

Judge Simon noted in language highly critical of the federal agencies that after a series of inadequate Columbia Salmon BiOps since 1992, and multiple warnings by prior Federal Court judges in the case, that much more had to be done. Populations of Endangered Species Act-listed (ESA) salmon and steelhead in the Columbia-Snake River Basin have not substantially improved, but instead continue to deteriorate.

Snake River sockeye salmon were first ESA-listed as “endangered” in 1991. Today there are thirteen separate populations of Columbia or Snake River salmon and steelhead that are classified as either endangered or threatened under the ESA. These are species that once contributed to commercial, tribal, recreational and subsistence fisheries. They’re now, justifiably, off-limits to the fishing community.

The listing of all of those additional species since 1991 calls attention to a major flaw in our fisheries management system. The protective measures for Snake River sockeye might have “spilled over” to non-listed salmonids, conserving their ecological health even without direct regulation. They didn’t, evidenced by the subsequent designations. But why should we be waiting until we have at least one endangered salmon run before we start fortifying it against extinction? And should we rely on spillover protections to conserve our relatively healthy runs?

They’re not rhetorical questions. Five failed BiOps suggest that we’re not even sure how to manage our endangered stocks, and twelve more listed stocks show that spillover management isn’t doing the trick. Those questions demand a resounding “No.”

The curious part is that we have a federal law aimed at conserving our not-quite-listed fish stocks, or at least those that are the subject of targeted fisheries: the Magnuson-Stevens Act (MSA).

The MSA and Conserving Fish

Under that law, fisheries managers are tasked with “prevent[ing] overfishing while achieving, on a continuous basis, the optimum yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1). The idea is to set take at a level that protects both the fish, and the fishing community’s long-term opportunity to catch those fish.

Optimum yield (OY) represents the amount of harvested fish that best corresponds to the national interest in harvesting those fish, whether it be for the value they add to the economy, the wellbeing of those engaged in recreational harvest, the value of those fish to their ecosystems, or in the case of depleted stocks, the utility individuals bring to the rebuilding process. See 16 U.S.C. § 1802(33).

The OY analytical process is a framework for identifying the universe of variables that dictate the ecological health and resiliency of a species, and the human activities that impact that resiliency. In running through that analysis, fisheries managers at the management council level must develop an understanding of the variety of human activities that contribute to a stock’s abundance or decline.

In tandem with the OY analysis, fishery managers must also designate a target stock’s essential fish habitat (EFH) in fishery management plans (FMP). This involves identifying all of the aquatic areas, including inland streams and lakes for anadromous species, that target fish utilize at various stages of their life histories. Managers must then take stock of the human activities that are degrading those habitats. 16 U.S.C. § 1855(b).

In concert, the OY and EFH analyses (which if we were to drop the “fish” in EFH, maybe we’d call it the OYEH (“Oh Yeah”) analysis) paint a detailed picture about the human activities contributing to the decline of a targeted fish species. We already do this legwork that gives us an understanding of why a stock might be in decline, well before that stock ever gets to a point where it runs the risk of extinction.

But what do we do with this analysis once we have it?

Tools of the Trade

Perhaps by design, perhaps by flaw, the MSA’s toolbox to prevent species collapse is limited to two tools: restricting fishing activity, and writing letters.

Fishing effort regulation regimes are designed to reduce effort by limiting who can engage in a fishery, when they can do so, and how many fish they can take. These measures are ineffective for a species in decline for reasons unrelated to fishing, and they end up penalizing the fishing industry when applied to such stocks. It’s the equivalent of taking aspirin when you’re having an allergic reaction: sure it’s medicine, and maybe it even offers some short term symptom relief, but is it appropriate or effective to cure what ails you?

This is an especially pointed concern when it comes to anadromous fish, as we know that the combination of low in-stream flow and the degradation of physical riverine habitat features challenge most of the salmonids on the West Coast. These changes are often the consequences of human agency, but they’re not fishing. They can be legally regulated or prohibited, just as readily as fishing effort can be regulated or prohibited, but they’re not. The National Marine Fisheries Service (NMFS) and the regional councils do not have authority to regulate non-fishing activity, despite that they are charged with deriving the maximum benefit from those fisheries.

By “letter-writing,” I mean provisions in the MSA similar to the ESA’s consultation requirements that allow the Secretary of Commerce (head of NMFS’s parent agency) or regional councils to make recommendations to agencies undertaking or permitting ventures that would adversely affect EFH. MSA § 305(b)(2), (3). The recommendations would provide a way forward in mitigating non-fishing impacts to fish habitat. Because as habitat goes, so go the fish.

But the ESA requires agencies to ensure that their activities will not jeopardize endangered species, and it charges the agencies responsible for those endangered species to police the agency undertaking the action to make sure jeopardy doesn’t occur. The MSA is a rather toothless analogue. Any agency receiving recommendations from Commerce simply has to respond in writing why it is not accepting the recommendations. MSA § 305(4)(b). That explanation doesn’t necessarily have to be a good one. It also has to propose other mitigation measures, but there is no requirement to implement them. What we’re left with is essentially a polite “no thank you, we’d rather not attend the fishery conservation party.”

The Mechanic That Would Perfect His Work Must First Sharpen His Tools

Perhaps it’s a fair criticism that federal agencies should be able to wield more power when it comes to endangered species, lest those species actually go extinct. But by working to conserve and protect species before they ever get to that stage, we’re providing a double benefit to the nation: protection from extinction, just as we would under the ESA; and optimal utilization of species, as we’re supposed to do under the MSA.

It’s a mixed message that the NMFS can step in to prevent extinction only when a species is on the cusp of extinction. Preventative medicine is the best medicine, and we need our fishery managers to have stronger tools to prevent stock collapses.

Expanding the MSA’s consultation requirements to allow for comment on activities that affect fish in addition to EFH is a first step. Requiring a real response from an agency undertaking an action that could compromise the nation’s fishery resources is next. And that response should describe the mitigation measures the agency is actually implementing, and how effective they’re expected to be in mitigating stock declines. Giving Commerce an opportunity to require more stringent mitigation measures is the last piece of the puzzle. Directing Commerce to require habitat restoration programs where they are needed to sustain OY would be icing on the cake.

These steps ensure that our fisheries continue to produce optimum yield, and that the United States continues to realize maximum benefit from its fisheries. By accepting fishing effort restrictions, the fishing community is already doing its part to make it happen. It’s time for the rest of the human ecosystem to step up to the plate.