Who Gets The Fish?

Summer Flounder, photo via NOAA

Of all the issues that face fisheries managers, probably none are as controversial as reallocating harvest.

It’s a no-win issue for regulators. The need to establish annual catch limits makes fisheries management a zero-sum game. The only way to increase the landings of one group of fishermen is to decrease the landings of another.

Managers can base reallocation decisions on many different factors, which range from historic patterns of harvest to recent, climate-driven changes in fish abundance. They know that any criteria they decide to use will be deemed “unfair” by those forced to land fewer fish, and “perfectly appropriate” by those who will get to land more.

Thus, managers are understandably reluctant to develop reallocation plans that they know will be loudly and bitterly condemned by many fishermen.

In an effort to provide some guidance, the National Marine Fisheries Service (NMFS) issued a Fishery Allocation Review Policy (Policy) and accompanying Recommended Practices and Factors to Consider when Reviewing and Making Allocation Decisions (Practices) in July 2016.

The NMFS actions, however well-intentioned, didn’t add much clarity to the process.

The Practices note, “Several recommended practices would improve the allocation process by increasing transparency and reducing conflict.” It goes on to suggest that, when facing allocation issues, regional fishery management councils should “Evaluate and Update Council and Fishery Management Plan Objectives,” “Identify User Needs,” “Minimize Speculative Behavior” and “Plan for Future Conditions.”

That seems to be a reasonable, if obvious, approach to allocation issues, but even so, the Practices hedge, saying that the four specified criteria “should not be considered comprehensive and may not be applicable to all circumstances.”

Viewed in light of such warning, the criteria do little, if anything, to help resolve allocation issues.

If one continues to read the Practices, things don’t become any clearer. The document advises that

“Typically allocation decisions are closely aligned with the historical use of the resource because the government is hesitant to limit historically established privileges and access. While historical use may (or in some instances, shall) be taken into consideration when reviewing and making an allocation decision, the [Magnuson-Stevens Fishery Conservation and Management Act] requires achieving on a continuing basis the optimum yield (OY) from each fishery, which encompasses a broader range of considerations.”

It then sets out such considerations, which include “Ecological Factors,” “Economic Factors,” “Social Factors” and “Indicators of Performance and Change,” and describes various permutations of each. Then, the Practices hedge again, saying

“The list of factors is not all-inclusive, as there may be other important factors to consider. The factors do not prescribe any particular outcome with respect to allocation, but rather, are intended to provide a framework for the allocation analysis. Factors should be considered compared between groups for which an allocation decision is relevant. The priority and weight afforded each factor will vary depending on the time horizon of the decision, the objectives of the allocation decision, the objectives of the [fishery management plan], and the overarching Council goals…”

In the end, the Practices are filled with such ambiguity that they provide no meaningful guidance at all.

Since the Policy relies heavily on the Practices to determine whether a reallocation decision should be made, it doesn’t provide much useful guidance, either.

The commercial summer flounder fishery illustrates the difficulty of making reallocation decisions, even with the Practices and Policy in place.

There managers face the seemingly simple question of whether state allocations, which currently favor a few Mid-Atlantic states, should be changed to reflect the steady northern expansion of the stock into New England waters.

Summer flounder are managed by the Mid-Atlantic Fishery Management Council (MAFMC), which represents states between New York and North Carolina. Thus, New England fishermen have little say in how they are managed, and that makes them feel as if the deck is stacked against them.

David Simpson, the marine fisheries director from Connecticut’s Department of Energy and Environmental Protection, gave voice to the frustration felt by New England fishermen, saying, “We have these allocations state by state that are fixed in yesteryear. How do you convince four people with a vote on the Mid-Atlantic Council from North Carolina that they should acknowledge all the fish are 20 miles south of Montauk now and that New York, Connecticut and Rhode Island now should have a bigger share than them?”

To be fair, the MAFMC is currently considering a comprehensive amendment to its Summer Flounder, Scup and Black Sea Bass Fishery Management Plan, and reallocation of the commercial quota is one of the issues being discussed. However, comments made at a June 2016 advisory panel meeting make it clear that Mid-Atlantic fishermen are not sympathetic to Mr. Simpson’s arguments.

A commercial fisherman from the lower Mid-Atlantic said, “Infrastructure was put in place for distribution purposes, based on historical numbers. Fishermen knew the allocations when they were getting into the fishery.”

Of course, fishermen didn’t know that the center of summer flounder abundance would shift well to the north of where it was when the original allocations were made. But that wouldn’t change the mind of another Mid-Atlantic fisherman, who said

“I don’t think that [a reallocation] is justifiable. Even if all the fluke moved off of Connecticut and Massachusetts, I don’t think that would be a compelling reason to re-evaluate the quotas…Have the people who have made the complaints bought permits in other states? Have they done something to help themselves? Many fishermen went other places, re-invested to make it work. For those people who have not done that—I don’t think it’s fair for them to ask for more quota…Allocation changes would have to be very severe to make a difference. The reduction to North Carolina and New Jersey fishermen would be massive.”

That view was echoed by a North Carolina waterman, who argued, “Infrastructure and coastal economies were built on that allocation. North Carolina fishermen created the lion’s share of quota up and down the east coast. Most northern fishermen fished on groundfish, and didn’t care about fluke.”

Yet another fisherman insisted that today’s allocations must continue to reflect the landings patterns established three decades ago. “We used 1980-1989 [as base years], setting regulations in 1993. That’s 20+ years build around that…People are seeing that there’s money in this fishery and now they want to get into it. But people that are in it have worked hard to get it where it is. And it’s one of the only major fisheries we have in Virginia and North Carolina. We don’t need to change it.”

Thus, the scene is set. One group of fishermen calls for a new allocation that takes changing environmental conditions into account. Another believes that allocations based on past landings patterns should be forever cast in stone.

Is any reallocation justified? If so, who should prevail?

The Policy advises, “If the trigger [for reallocation] is based on public input to the Councils, then a check for changes in social, ecological or economic criteria is required.”

The change in summer flounder distribution certainly meets the “ecological” criterion, so the next step is to refer to the Practices for guidance.

They paint a mixed picture.

One could easily argue that the changes currently impacting the summer flounder fishery will continue, and that the fishery’s future lies in northern waters. One could also make the case that northeastern fishermen, suffering from sharp declines in their traditional cod and flounder fisheries, need a larger allocation of summer flounder to stave off the collapse of their fishery and the socio-economic damage that any such collapse would cause.

On the other hand, as the advisory panel comments show, Mid-Atlantic fishermen are more than willing to sail north to catch their quota of summer flounder. If some of their fish were reallocated to New England fishermen, they would suffer a significant loss of income that couldn’t be readily replaced by switching effort onto other species. And coastal communities along the Mid-Atlantic coast could also suffer socio-economic harm as more summer flounder are landed in northern ports, and jobs and infrastructure are lost in states such as Virginia and North Carolina.

Thus, despite NMFS’ Policy and Practices, it still comes down to a judgment call by the MAFMC, and a reallocation decision that no one sitting around the table is particularly eager to make.

An allocation decision that impoverishes one group of fishermen in order to enrich others will never solve the ultimate problem, which cannot be resolved so long as everyone insists on squabbling over the biggest piece of a small and oft-times shrinking pie.

If every fisherman is to land enough fish to survive, managers and fishermen must work together to make the summer flounder pie bigger, so that each such fisherman can enjoy a larger slice of that pie than they have today.

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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