Rules & Catch Limits Limit The Harm

Summer Flounder

Photo: Summer Flounder

Summer flounder, more commonly known as “fluke” at the northern end of their range, were at the center of fisheries debates throughout the first eight or ten years of this century.

It was the Mid-Atlantic Fishery Management Council’s (MAFMC) failure to take the conservation and rebuilding provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) seriously that led to the landmark court decision in Natural Resources Defense Council v. Daley, which found that federal fishery management plans must have at least a 50% chance of preventing overfishing and timely rebuilding overfished stocks.

The National Marine Fisheries Service (NMFS) application of that rule to various fisheries, not the least of which was summer flounder, led to the rebuilding of at least 39 once-overfished stocks.

The harvest reductions needed to rebuild such stocks also led to some fishermen’s calls for “flexibility” in fisheries management, and led politicians to introduce bills such as the current “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act” (H.R. 1335) which would allow federal managers to permit overfishing to continue for an extended time, and delay the rebuilding of overfished populations.

Once the summer flounder stock was rebuilt to near-target levels, the fishery fell out of the spotlight as the management of other species, elsewhere on the coast, became far more controversial. Now, it appears that summer flounder will be back in the spotlight, for the stock is declining again.

This time, the primary cause is not overfishing, but rather six consecutive years of below-average spawning success.

No one is sure why fewer fluke are recruiting into the population, but as the size of the population shrinks, managers must reduce annual catch limits, to avoid running afoul of Magnuson-Stevens’ mandate against overfishing.

In 2015, biologists initially told the MAFMC that it would have to reduce the 2016 annual catch limit by 43% in order to avoid a further decline in the stock. The MAFMC’s Science and Statistics Committee (SSC) later decided that, because the available data was good, a 29% reduction was enough to avoid any harm.

Unfortunately, that turned out to be untrue, so in August 2016 the MAFMC reduced the 2017 annual catch limit by an additional 30% in an attempt to stabilize the stock. The additional reduction will undoubtedly cause controversy, particularly at, and after, the December joint meeting of the MAFMC and the Atlantic States Marine Fisheries Commission’s (ASMFC) Summer Flounder, Scup and Black Sea Bass Management Board, when the recreational specifications for the 2017 summer flounder fishery will be set.

Despite inevitable objections, there is no doubt that the reduction will take place, for the MAFMC’s Science and Statistics Committee (SSC) has determined that “the stock biomass is dangerously close to being overfished, which could happen as early as next year if increased efforts to curb fishing mortality are not undertaken.”

Should the summer flounder stock ever become overfished, Magnuson-Stevens requires that “action be taken to end overfishing in the fishery and to implement conservation and management measures to rebuild” the stock within a time period that does not exceed ten years.

Such rebuilding measures would probably be much more restrictive than those needed to keep the stock from becoming overfished in the first place, so both fishermen and managers have an incentive to halt the stock’s decline now.

Both harvest restrictions and rebuilding plans are anathema to critics of Magnuson-Stevens, who generally support H.R. 1335. They argue that fish stocks should be managed “flexibly,” in a manner that tolerates some overfishing and delays the rebuilding of overfished stocks, in order to minimize short-term economic harm to fishermen.

But when fisheries managers adopt a “flexible” approach, stocks are rarely, if ever, completely rebuilt.

The current debate over striped bass management at ASMFC clearly illustrates the problem.

In 2013, ASMFC’s Striped Bass Management Board received a benchmark stock assessment (Benchmark Assessment), which indicated that the stock was declining steadily, had experienced overfishing for most of the past decade, and would probably become overfished by 2015. If ASMFC was governed by Magnuson-Stevens, that would have been enough to require a rebuilding plan.

But ASMFC is not governed by Magnuson-Stevens, and was guided solely by its striped bass management plan.

Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 6) requires ASMFC to adopt measures to end overfishing within one year, at any time that the fishing mortality rate (F) exceeds the mortality target for two consecutive years and the female spawning stock biomass (SSB) falls below the SSB target in at least one of those years.

Amendment 6 also requires ASMFC to draft a plan to rebuild the striped bass stock within 10 years should the SSB fall below its target in any two consecutive years and F exceed its target in at least one of those years.

The Benchmark Assessment demonstrated that both of those triggers had been tripped.

After a full year of debate, ASMFC adopted Addendum IV to Amendment 6 (Addendum IV), which had slightly less than a 50-50 chance of reducing F to target within one year. Addendum IV was adopted only after a number of jurisdictions bordering Chesapeake Bay unsuccessfully argued that the harvest reduction should be phased-in over a three-year period, despite the clear language of Amendment 6.

And despite the clear language of Amendment 6, no rebuilding plan was drafted at all.

Because ASMFC is not subject to Magnuson-Stevens, and because an appellate court decision effectively insulated ASMFC actions from judicial review, its failure to follow its own stock rebuilding rules was not subject to legal challenge.

Things headed downhill from there.

When ASMFC’s Striped Bass Management Board met in November 2015, representatives from the Chesapeake Bay jurisdictions tried to weaken the measures adopted in Addendum IV, even though the SSB was nowhere near the SSB target.

Michael Luisi, representing the Maryland Department of Natural Resources, argued that there was a bias in the stock assessment. Due to such bias, which could produce overestimates of mortality and underestimates of the size of the SSB, he said that the SSB was somewhat higher than believed, and harvest could be increased.

He maintained that position even after Charlton Godwin, the Chair of ASMFC’s Striped Bass Technical Committee, clearly stated that “there is no way to accurately predict what that bias is going to be and then to account for it…there is still no guarantee as to whether the direction is going to be the same or the magnitude.”

In other words, while there was a recognized bias in the assessment, such bias could either overestimate or underestimate F and SSB, and do so by differing amounts each year.

Mr. Luisi asserted that Amendment IV’s harvest reductions caused real harm to Maryland, saying “we’ve made the argument before we felt that these reductions were extreme. I’ve heard the word ‘crisis’ from my stakeholders. The charter, the recreational and the commercial industry are suffering greatly as a result of the reductions that we’ve taken.”

A few months later, despite Mr. Luisi’s claims of “crisis” and “suffering,” NMFS’ recreational landings estimates showed that anglers in Chesapeake Bay hadn’t taken any real-world reductions at all. In fact, both Maryland and Virginia anglers landed about 150% more striped bass in 2015 than they had in the base year of 2012….

Even so, Mr. Luisi made a motion to “initiate an addendum to reconsider the reduction options in Addendum IV for the 2016 fishing season in the Chesapeake Bay based on the results of the 2015 assessment update and retrospective projections.”

That motion never came to a vote. However, ASMFC’s Striped Bass Technical Committee was asked to prepare another update to the stock assessment, which would be presented at the October 2016 Striped Bass Management Board meeting.

Should that update show an increase in the SSB, there will undoubtedly be another effort to increase the harvest, even though the SSB was nowhere near its target level. Such effort could be successful.

And that, in a nutshell, is why fisheries need cast-in-stone limits, and fisheries managers need hard-and-fast rules, not “flexibility.”

Under a “flexible” management system, managers are faced with too many temptations, and too much pressure from their constituencies, to see a recovery through to its end, and to fully enforce the provisions of a fishery management plan.

As a result, flexibly-managed stocks are seldom, if ever, fully restored. Instead, they languish in a perilous netherworld, never completely healthy and vital, and always just one or two poor year classes—or one or two excessive harvests—away from the brink of collapse.

That’s not a good place for fish stocks to be, and explains why such stocks should be managed like summer flounder, harvest cuts and all, and not like the striped bass, which faces a far more uncertain future.

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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