Federal Fisheries Laws Suffering Death of One Thousand Cuts

Red Snapper

Over the past two decades, federal fisheries managers have met with real success. Since 2000, the number of fish stocks subject to overfishing has fallen from 72 to 30. During the same period, the number of overfished stocks has declined from 92 to 38, with 41 of them now fully rebuilt.

The key to that success has been the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), and its requirements that fishery managers employ the best available science, halt overfishing and rebuild overfished stocks in the shortest possible time.

Should the National Marine Fisheries Service (NMFS) issue a regulation that fails to adhere to such standards, that regulation may be successfully challenged in the federal courts. While some complain that Magnuson-Stevens’ mandates are unduly strict, they help assure that fishery managers will take necessary, but politically unpopular, actions to conserve and rebuild fish stocks.

Unfortunately, a series of recent administrative actions have whittled away at the effectiveness of federal fisheries laws, including Magnuson-Stevens, and have threatened the health and continued recovery of saltwater fish stocks.

The first of such actions occurred in June 2017, when the Secretary of Commerce (Secretary) decided that the National Marine Fisheries Service should reopen the private-boat recreational red snapper season in the Gulf of Mexico, even though such reopening would lead to substantial overfishing.

An email from Earl Comstock, the Director of the Commerce Department’s Office of Policy and Strategic Planning, to Secretary Wilbur Ross explicitly acknowledges that such reopening “would result in overfishing of the stock by six million pounds (40%), which will draw criticism from environmental groups and commercial fishermen.”

Although allowing such overfishing would clearly violate Magnuson-Stevens’ National Standard 1, which states that “Conservation and management measures shall prevent overfishing,” Comstock cynically noted that, despite such opposition, “Under the Magnuson Stevens Act a court can’t issue a temporary restraining order, so your action would remain in effect for at least 45 days before a court could act.”

Thus, one of the bedrock provisions of Magnuson-Stevens, its unequivocal ban overfishing, was knowingly and intentionally sidestepped by the agency that is charged with conserving and rebuilding the nation’s fishery resources.

Red snapper were also at the heart of another NMFS action that violated the spirit, and probably also the letter, of Magnuson-Stevens. In that case, NMFS approved an “Emergency Action Request” by the South Atlantic Fishery Management Council (SAFMC) to allow limited commercial and recreational red snapper fisheries in 2017.

South Atlantic red snapper had become badly overfished. After 2014, landings were prohibited because the mortality of snapper that were released, after being caught accidentally by fishermen seeking other species, exceeded the acceptable biological catch (ABC). However, after a new benchmark stock assessment was completed in 2017, NMFS told the SAFMC that basing the ABC on dead discard estimates of uncertain accuracy wasn’t a sound practice. That led to a situation where, although an ABC for red snapper could not be established, the SAFMC could still set an annual catch limit. The SAFMC, taking advantage of that situation, asked NMFS to open a red snapper season in 2017.

There was no data suggesting that opening such a season would, like reopening the recreational season in the Gulf of Mexico, lead to significant overfishing. However, there was also no data suggesting that opening the South Atlantic season wouldn’t cause overfishing. There just was no reliable data at all.

Magnuson-Stevens requires that “Conservation and management measures shall be based on the best available science,” and further requires that councils “develop annual catch limits…that may not exceed the fishing level recommendations of its science and statistical committee.” Yet instead of basing the South Atlantic red snapper season on “the best scientific information available,” NMFS actually based it on scientific information that was not available; that is, NMFS believed that the season could be opened “based on the uncertainty in the assessment” associated with various factors relevant to the snapper fishery, including the magnitude or the recreational discards, rather than on any quantifiable data.

It also allowed landings in 2017 equal to those that occurred in 2014, even though overfishing occurred in that year.

It’s possible that NMFS could allow fishing for red snapper without harming the stock’s recovery. There is no question that the stock has been steadily rebuilding. Roy Crabtree, administrator of NMFS’ Southeast Region, has reportedly said that “When I look at the…data and see the upward trajectory, yeah, I have a hard time continuing justifying the closure.”

Thus, the mere fact that the season was opened didn’t generate criticism. Criticism arose because the SAFMC, wanting to open a season in what remained of 2017, placed an undue emphasis on speed. In its haste to act, the SAFMC failed to solicit its science and statistical committee’s views on whether the season should be opened, and also failed to seek the committee’s input on proposed regulations that would govern the reopened fishery.

Holly Binns, of the Pew Charitable Trust’s fishery conservation program, noted that “speed may come at the price of science, because the council doesn’t plan to have its science advisers review its decision. The advisers’ job is to provide guidance on the number of fish that can be caught while still preventing overfishing…Fishing for red snapper should resume only if scientists determine it can be done without jeopardizing a healthy future for this popular fish.”

That’s a reasonable comment, given that good fishery management is entirely dependent upon the use of good science. Unfortunately, the decision to open a South Atlantic red snapper season wasn’t the only Commerce Department action that ignored the importance of fisheries science. A decision that the agency made last July, affecting the summer flounder fishery, may have much graver and longer-lasting consequences.

In that case, the relevant law wasn’t Magnuson-Stevens, but the Atlantic Coastal Fisheries Cooperative Management Act (Cooperative Management Act), a law which gives the Atlantic States Marine Fisheries Commission (ASMFC) the power to impose its fishery management plans on recalcitrant states.

Pursuant to the Cooperative Management Act, should ASMFC find that any state has failed to comply with the provisions of any of its fishery management plans, it must notify the Secretary of such finding. The Secretary then has 30 days to make an independent determination of 1) whether the state is, in fact, out of compliance, and 2) whether the provisions of the management plan are necessary for the conservation of the species in question. If the answer to both questions is yes, the Secretary is required to impose a moratorium on all fishing for the relevant species in the noncompliant state, until such time as the state comes into compliance.

Thanks to the Cooperative Management Act, which became law in late 1993, the chaotic web of inconsistent state regulations that had previously governed inshore fisheries was replaced by ASMFC’s cooperative management plans. Although individual states often disagreed with ASMFC decisions, few were willing to go out of compliance and have a moratorium imposed on their fisheries; on the rare occasions when a state did take such action, the Secretary had always supported ASMFC’s noncompliance finding.

That changed in July 2017, after New Jersey defied the collective decision of ASMFC’s Summer Flounder, Scup and Black Sea Bass Management Board and adopted regulations that fell short of those imposed by the most recent addendum to ASMFC’s summer flounder management plan. ASMFC found New Jersey to be out of compliance “based on hours of [Management] Board deliberation and rigorous Technical Committee review…[and on] Technical Committee findings that New Jersey’s measures were not conservationally-equivalent to those measures in” such addendum.

For the first time in the history of the Cooperative Management Act, the Secretary overruled ASMFC’s noncompliance finding, and supported the noncompliant state. A letter issued by NMFS, informing ASMFC of the Secretary’s finding, stated that “New Jersey makes a compelling argument that the measures it implemented this year, despite increasing catch above the harvest target, will likely reduce total summer flounder mortality in New Jersey waters to a level consistent with the overall conservation objective.”

However, NMFS’ letter, and the Secretary’s decision, are notable for the fact that, before overruling ASMFC’s finding, the agency failed to consult with its own local experts on the relative merits of New Jersey’s and ASMFC’s arguments.

John Bullard, regional administrator for NMFS’ Greater Atlantic Region Fisheries Office, told the Boston Globe that “This is the first time that no one asked me for a formal recommendation. The secretary’s decision goes against long-standing protocol, and there’s a cost to that. There’s a reason to have regional administrators, because their experience and knowledge is valuable in making decisions like this one. This is an unfortunate precedent.”

Bullard went on to say that the “chain of command was broken with this decision…This is a system that keeps all states accountable to each other. We’re going to have to have to figure out how to repair that system.”

Certainly, such repair is badly needed, if the Cooperative Management Act is to function as Congress intended. However, given the Secretary’s and NMFS’ recent actions, it’s not clear that the agency is particularly concerned with carrying out the will of Congress, with respect to federal fisheries law.

In a recent speech to Alaska fishermen, Chris Oliver, NOAA’s Assistant Administrator for Fisheries, said that the current administration is “looking at [regional fishery management] councils to take a step back and look at ways not to have a tendency toward micromanagement but to look at the big picture.” In accord with that philosophy, he has amended the planning document that sets out NMFS’ 2018 priorities to include goals such as “maximize fishing opportunities while ensuring the sustainability of fisheries and fishing communities,” “responsible fishing and resource development” and “regulatory efficiency.”

According to the seafood industry publication Undercurrent News, his priorities include giving regional fishery management councils additional flexibility, streamlining the regulatory process and expanding seafood production.

That being the case, we can probably expect to see more administration decisions that incrementally weaken the effectiveness of federal fisheries laws. And we can expect conservation measures to languish.

In fact, we’ve probably already seen one of the consequences of the administration’s policy at ASMFC when, in mid-November 2017, its Atlantic Menhaden Management Board ignored the comments made by nearly 160,000 citizens and failed to adopt interim ecosystem reference points, which would have imposed limitations on harvest based not on the mere sustainability of the menhaden stock, but also on the menhaden’s role as a forage fish for a host of predators.

The decision was both a surprise and a disappointment for conservation advocates, who had received many verbal commitments from management board members, who said that they supported such interim reference points. However, the decision was praised by Omega Protein Corp., which harvests the lion’s share of the menhaden on the East Coast and opposed the interim measures.

Some management board members, after the vote, noted that implied threats by the Commonwealth of Virginia, where Omega is located, played a role. For example, one board member wrote “we’re bummed about the way this meeting went, and particularly the lack of spine the Commission had because they were afraid of VA going out of compliance. We can, for all intents and purposes, thank New Jersey for that.”

But New Jersey’s failure to comply with the summer flounder management plan would have had no impact on menhaden, had it not been for a sympathetic administration in Washington, that has condemned our federal fisheries laws to a “death of one thousand cuts,” undercutting their provisions a small bit at a time whenever the opportunity arises.

In doing so, they condemn our fish stocks to the death of one thousand cuts as well.

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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