Fluke photo by John McMurray.

Managing federal fisheries is a relatively simple process, thanks to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens).

Pursuant to Magnuson-Stevens, “Conservation and management measures shall be based on the best scientific information available.” Such “Conservation and management measures shall prevent overfishing.” To better assure that overfishing doesn’t occur, each regional fishery management council must “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its science and statistical committee…”

Thus, while there is often squabbling about the details—such things as the level of recreational harvest, allocations and the specific measures used to manage a particular stock of fish—the framework used to conserve and manage fish populations is largely cast in stone.

On the state level, things tend to be much more fluid. With a few very limited exceptions, Magnuson-Stevens doesn’t apply within state waters and, to date, no court has found that any state’s fishery statutes require managers to employ similarly rigorous conservation and management measures.

Intermediate between the state and federal level of management lie three interstate commissions, the Atlantic States Marine Fisheries Commission (ASMFC), Gulf States Marine Fisheries Commission and Pacific States Marine Fisheries Commission, which are interstate compacts, ratified by Congress, organized to promote cooperative fisheries management between the states.

All three commissions, as initially established, served in a solely advisory capacity; each could recommend fishery management measures, but could not compel such measures’ adoption by the states.

That is no longer the case for ASMFC.

In 1993, Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Cooperative Management Act), which required member states to comply with fishery management measures adopted by ASMFC.

Should ASMFC find that any state was not in compliance with a mandated management measure, the Cooperative Management Act requires that notice of such finding be sent to the Secretary of Commerce (Secretary). The Secretary then has up to 30 days to make an independent determination that such state is out of compliance and that “the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question.”

Before making any determination, “the Secretary shall give careful consideration to the State that the Commission has determined…is not in compliance…and provide such State, upon request, with the opportunity to meet with and present its comments directly to the Secretary.”

If the Secretary ultimately imposes a moratorium, such moratorium must go into effect within six months after that determination is made.

Since 1993, ASMFC’s management decisions went largely unchallenged. From time to time, states went out of compliance and, once in a great while, a moratorium was imposed, but states normally backed down in the face of a threat to their fisheries, and any moratorium imposed lasted for only a very short time.

This year, ASMFC faces a more serious challenge.

In August 2016, the Mid-Atlantic Fishery Management Council (MAFMC) learned that six years of poor reproductive success had caused the summer flounder population to decline so far that it would soon become overfished if harvest wasn’t reduced. In response, MAFMC adopted annual catch limits intended to reduce fishing mortality by 30%.

In December, MAFMC decided that states, acting through ASMFC, might set their own summer flounder regulations, so long as such regulations yielded the same coastwide conservation benefits as a 4-fish bag limit, 19-inch minimum size and a season that ran from June 1 through September 15.

MAFMC’s actions drew a strong reaction from some members of the angling community, but nowhere was the reaction as strong, or as frenetic, as it was in New Jersey. An article published in The Fisherman, a New Jersey-based magazine and website, began “I’m about to really tick you off. Seriously, reading any farther is just going to make you incredibly angry.” It warned anglers about a purported 2-fish bag limit, 19-inch minimum size and a three-month season “at best,” a suite of measures far more restrictive than anything that was being seriously considered by either MAFMC or ASMFC.

The reality was far more benign. On February 1, 2017, ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board (Management Board) established summer flounder regulations for Connecticut, New York and New Jersey. While the Management Board did increase the minimum size to 19 inches, it allowed anglers to retain three fish, not two, and left the entire 128-day season intact.

Connecticut and New York adopted such regulations, but New Jersey refused to abide by the Management Board’s decision. Bob Martin, Commissioner of the New Jersey Department of Environmental Protection, announced that “We will use every legal and administrative tool available to stop these unfair cuts that will devastate our state’s fishing industry and have far-reaching impacts on the shore economy.”

He went on to question whether the fluke population was in decline, saying that “Our data has consistently shown that our fluke population has been stable since 1992,” although such observation could hardly help New Jersey’s case, since, in 1992, the summer flounder population was badly overfished.

New Jersey then appealed the Management Board’s decision to ASMFC’s Interstate Fishery Management Policy Board (Policy Board). Such protest claimed that the Management Board based its decision on flawed science, that it failed to consider public comment, that it failed to consider the economic impacts that harvest restrictions would have on New Jersey and that the draft Addendum proposing such reductions contained printing errors when released to the public for comment. All but one of those grounds were summarily rejected; an appeal based on the printing errors remains pending.

New Jersey also took another, much more consequential action. On May 18, upon the recommendation of the New Jersey Marine Fisheries Council, the Department of Environmental Protection adopted new regulations which retained the state’s 18-inch minimum size, reduced the bag limit to 3 fish and shortened the season to 104 days. New Jersey submitted such regulations to the Management Board for approval, arguing that they had the same conservation effect as the regulations that the Management Board had adopted in February.

ASMFC’s Summer Flounder, Scup and Black Sea Bass Technical Committee (Technical Committee) reviewed the New Jersey regulations, and disagreed. So did the Management Board. The harvest reductions achieved by the New Jersey regulations fell so far short of the target that not a single member of the Management Board would even second New Jersey’s motion to approve its new rules.

The Management Board then went on to find New Jersey out of compliance with the summer flounder management plan.

On June 1, the Policy Board also found New Jersey out of compliance, but New Jersey has kept the noncompliant regulations in place. The matter has now been referred to the Secretary, who will determine whether a moratorium will be imposed.

The Secretary’s decision could well decide not only the future of the summer flounder, but also the future of the cooperative interstate management system itself.

The current Secretary, Wilbur Ross, has said that “Given the enormity of our coastlines, given the enormity of our freshwater, I would like to figure out how we can become much more self-sufficient in fishing and perhaps even a net exporter.” He has also said that he sees a need for “obtaining maximum sustainable yield for our fisheries.”

It’s not clear from those statements whether Secretary Ross would favor conservative management measures which would allow fish stocks to fully recover, produce maximum sustainable yield, and thus provide more product for both domestic use and export, or whether he would favor more relaxed regulations that would set all annual catch limits at maximum sustainable yield, rather than at lower levels that would provide room for error and more reliably conserve and rebuild pressured stocks such as summer flounder.

If the Secretary wants to rebuild fish stocks and maximize their long term, sustainable yield, he is likely to endorse the Policy Board’s decision, and promptly impose a moratorium on summer flounder fishing in New Jersey waters until the state comes into compliance. In such case, both the fish and the fishery management system can look forward to a healthy and productive future.

If, on the other hand, the Secretary believes that fishery regulations need to be relaxed, he is more likely to favor New Jersey’s position. In such case, one of two things might happen.

The Secretary might find that New Jersey is out of compliance with management measures needed to conserve the summer flounder stock, and impose a moratorium, but make such moratorium effective after the close of New Jersey’s summer flounder season. That would effectively defer a final decision until next year, and provide an opportunity for biological or political events to render the noncompliance finding moot.

Or, the Secretary could find that the measures adopted by the Management Board are not “necessary for the conservation of the fishery in question,” and allow New Jersey to maintain its current regulations.

Neither of those alternatives would bode well for the future of the summer flounder or the fishery management system.

Even under the best circumstances, in which the Secretary agrees with ASMFC’s position and promptly imposes a moratorium, New Jersey anglers will have been able to fish under noncompliant regulations for at least four or five weeks; after that, compliant rules could be adopted to avoid a moratorium. That opportunity alone could tempt states to go out of compliance in other fisheries, particularly in fisheries where relatively short seasons make the benefits of going out of compliance disproportionately high.

Delaying the imposition of a moratorium, and so allowing anglers to enjoy noncompliant regulations for an even longer time, would make the noncompliance option even more tempting.

However, should the Secretary explicitly decide in New Jersey’s favor, he might well ring the death knell for the interstate management system.

If Secretary Ross allows New Jersey to adopt regulations that failed to gain Technical Committee approval, and were universally rejected by every other member of the Management Board, he will be inviting every ASMFC state to adopt inadequate regulations based on questionable data, in the hope that even such weak rules will somehow pass secretarial muster.

If he decides in New Jersey’s favor, he will make noncompliance a win-win strategy for every state. At worst (from a state’s viewpoint), states will be able to let their anglers fish for weeks, perhaps even months, pursuant to noncompliant regulations. At best, states will be able to avoid more restrictive ASMFC management measures completely, letting their neighbors shoulder the responsibility for rebuilding and maintaining fish stocks.

The Cooperative Management Act hasn’t been a panacea for East Coast fisheries management. It still has many flaws. However, thanks to the Cooperative Management Act, ASMFC’s fisheries management efforts have been far more effective than the chaos that existed before.

But a cooperative management system only works if everyone cooperates. Once a state is allowed to adopt regulations less restrictive than those imposed on everyone else, it won’t be long before the other states begin to become uncooperative, too.

And that could only cause the entire interstate management system to come crashing down.