The Allocation Morass

Recreational anglers at sunset

Everybody wants more fish.

Commercial fishermen make more money when they can harvest more product, while recreational fishermen have long cast envious glances at the commercial harvest, and tried, by various means, to convert some of those commercial landings into their own.

It’s not just an inter-sector conflict. In both commercial and recreational fisheries, there are sub-allocations that divide up the harvest between fishermen in various states, or those fishing from private versus for-hire vessels, or those using different types of gear.

At the same time, deciding who catches the fish, rather than how many are ultimately caught, isn’t a conservation issue. A dead fish is a dead fish, no matter who lands it, so as long as the overall annual harvest doesn’t exceed sustainable levels, allocation has no impact on stock health.

Allocation of harvest to the various sectors and sub-sectors is the responsibility of the various regional fishery management councils, and of the Atlantic States Marine Fisheries Commission (ASMFC). In making allocation decisions, fishery managers rely heavily upon “catch history”—historical patterns of harvest—but also give some consideration to various social and economic factors, as well as to the distribution of fish stocks.

Once allocations are set, they very seldom change, despite often significant changes in markets, in the fishery, and in fish distribution.

There are a number of reasons for that, but the biggest one is that fisheries managers just don’t like to get bogged down in allocation debates. Such debates tend to be long, bitter and filled with rancor, because allocation is usually a zero-sum game. Unless some portion of the annual catch limit typically remains unused, the only way to give someone more fish is to take fish away from someone else.

Thus, no matter what fishery managers do, they’re going to get someone upset. Most managers, given a choice, would rather avoid the issue.

Some of the recent allocation debates demonstrate why that is so.

On the East Coast, water temperatures are rising, and fish stocks are moving north in response. For fish such as summer flounder and black sea bass, that has created a situation where southern states hold most of the quota, but northern states host most of the fish. As a result, southern fishermen are forced to steam hundreds of miles from port in an effort to catch all of their quota, while northern fishermen are forced to dump hundreds and sometimes thousands of pounds of dead fish back into the ocean because of the very small quotas assigned to the New England and upper Mid-Atlantic states.

The current summer flounder allocations are based on landings during the years of 1980-1989. Throughout those years, the commercial fishery was largely unregulated, and badly overfished; the spawning stock fell to its lowest level of abundance in 1989. Most of the fish, and so most of the harvest was concentrated at the lower end of the species’ range. As a result, the southernmost states of North Carolina and Virginia were awarded 27.4% and 21.3%, respectively, of the overall quota.

Today, the situation has changed. Biologists at the Mid-Atlantic Fishery Management Council (MAFMC) recognize that “the [summer flounder’s] range may be extending farther north. In addition, warmer water temperatures have resulted in the fish moving to the North and the East. These changes may also be driven by a stronger population now that the stock is rebuilt…The population itself is likely distributed with about 50 percent North of Hudson Canyon and the other 50 percent to the South. Approximately 70% of the allocation is to the states from New Jersey to North Carolina, which sets up a bit of an overfishing situation in the southern areas.”

Such circumstances seem to demand a reallocation of summer flounder quota among the states. But reallocation, no matter how compelling the circumstances, in never a quick nor an easy process.

At its December 2013 meeting, the MAFMC decided to initiate a new amendment to its Summer Flounder, Scup and Black Sea Bass Fishery Management Plan. Such amendment was to consider four issues, including the states’ commercial allocations. However, despite the clear changes in the fishery, the reallocation idea was not well received by commercial participants on the MAFMC’s Summer Flounder Advisory Panel.

One advisor argued that “some states (especially New York) have been left out of the current system,” and that as a result, “this system went against Magnuson National Standard 8,” which is intended to protect fishing communities. Most of the comments supported the status quo even though conditions had changed.

Advisors argued that “the industry…had been built on this system over the last 25 years,” and that “changes to this system will present significant economic and management losses.”

Not surprisingly, the greatest resistance came from fishermen enjoying the largest shares of the quota, who said that “The summer flounder commercial fishery is very important to Virginia and North Carolina; it is their bread and butter fishery since they do not have much else to target…Now interest in landing summer flounder in New England is increasing because there is no groundfish. Virginia and North Carolina should not be punished because of that.”

More than four years later, the debate continues. The MAFMC is yet to prepare a draft amendment that can be sent out for public review.

Things are no smoother on the recreational side.

In 2003, the Atlantic States Marine Fisheries Commission (ASMFC) decided to allocate recreational summer flounder landings among the states, based on each state’s landings in 1998, a year when the stock was still overfished, overfishing was still occurring, and the recreational sector exceeded its landings target by nearly 70%. Such allocation gave New Jersey anglers 39.09% of the recreational quota; neighboring New York, allocated 17.63%, received the next-largest share.

But as the stock recovered, waters warmed and summer flounder moved north, the old allocation stopped making sense. New York anglers started encountering, and landing, a far larger number of summer flounder than they had before. In 2009, in order to shoehorn the state’s anglers into their decade-old allocation, New York was forced to adopt the most restrictive summer flounder regulations ever seen on the coast: two fish per day, a 21-inch minimum size and a short 78-day season.

During the same year, New Jersey anglers, who sometimes fished within shouting distance of their New York counterparts, were governed by regulations that included a six-fish daily limit, an 18-inch minimum size and a 103-day season, all because their state retained their large allocation even though it no longer hosted the greatest abundance of fish.

Although the ASMFC was already talking about replacing the outdated allocation with a new and more equitable approach, nothing was done for years; the states that benefitted from the old way of doing things didn’t want to cede fish to the other states.

When the ASMFC came up with a temporary plan in 2014, that both reallocated some unused recreational quota from the southern states and grouped the states into regions that shared the same regulations and a single allocation of fish, New Jersey was strongly opposed.

ASMFC’s temporary plan worked. Even so, after the ASMFC adopted a modified version of it in 2017, New Jersey refused to comply, adopted its own set of regulations, and appealed to the Secretary of Commerce for relief. The Secretary of Commerce sided with New Jersey

In the summer flounder fishery, the primary debate is focused on how to allocate the resource among the states; in the Gulf of Mexico red snapper fishery, it is focused on how to allocate fish between the sectors.

In 1989, the Gulf of Mexico Fishery Management Council (GMFMC) allocated 51% of red snapper landings to the commercial sector and 49% to anglers, based on historical landings. For many years, anglers have been seeking to increase their share even though, because they chronically overfish their quota, anglers usually land most of the fish. Finally, late in 2015, the GMFMC adopted Amendment 28 to its reef fish management plan (Amendment 28), which reallocated 51.5% of the red snapper to anglers, leaving 48.5% for the commercial sector.

Such reallocation was based on a recalculation of historical landings. It didn’t survive very long.

Commercial fishermen sued. In 2017 a federal court decided that the reallocation violated National Standard Four of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which requires, in part, that any allocation be “fair and equitable to all…fishermen.” The violation occurred because “Amendment 28 enables the recreational sector to catch more fish in the future because they caught more fish in the past, in excess of applicable restrictions. [emphasis added]” The court observed that Amendment 28 “created a system in which one sector must demonstrate an increase in landings in excess of its quota in order to obtain an increase in their allocation.”

Rewarding a sector for repeatedly overfishing was clearly not acceptable policy, so the years of work that the GMFMC spent preparing Amendment 28 ultimately accomplished nothing.

That’s not an uncommon outcome for allocation debates, which is another reason why regional fishery management councils usually avoid revisiting allocations unless there is a compelling reason to do so. Even when compelling reasons exist, and years of work is invested in reallocation efforts, such efforts often fail. Thus, it’s difficult not to be skeptical of legislation known as the Modernizing Recreational Fisheries Management Act (Modern Fish Act), designated S. 1520 in the Senate, which among other things would require the South Atlantic and Gulf of Mexico regional fishery management councils to revisit allocations of all managed species two years after such bill was enacted, and every five years thereafter.

Given that the South Atlantic Fishery Management Council manages 75 different species, and that the GMFMC manages at least 35, repeatedly revisiting all of the species’ allocations would be a daunting task, one likely to devour much of such councils’ time and resources, leaving little remaining for the councils’ primary task of conserving and managing fish stocks.

Certainly, changing conditions in the ocean and in our fisheries justify taking a new look at some allocations, but creating arbitrary deadlines for allocation review guarantees neither a good result nor any result at all.

When, and whether, allocations should be reviewed is a matter best left up to those who know their fisheries and their local waters best, the people who sit on the regional fishery management councils.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

1 comment on “The Allocation Morass

  1. Charlie,
    I wanted to add a few things to a very complicated topic which you describe very well.

    The summer flounder petition in the Mid Atlantic was reviewed for 6 years ending with a conclusion from the technical committee that decided no combination of years or methodology would justify a reallocation.

    As for the possibilty of a review of allocations in the South Atlantic and the Gulf of Mexico, perhaps it would bring to light that the recreational harvest for numerous species is already larger than the commercial harvest.

    Greg DiDomenico
    Garden State Seafood Association

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