Striped Bass Management: What If Magnuson-Stevens Applied?

Capt. Dave Monti with Block Island striped bass

Photo: Capt. Dave Monti with Block Island striped bass.

On August 8, 2019, the Atlantic States Marine Fisheries Commission’s (ASMFC) Atlantic Striped Bass Management Board (Management Board) met to consider the future of the striped bass fishery.

A benchmark stock assessment released in May 2019 (2018 Assessment) had determined that the striped bass stock was both overfished and experiencing overfishing. Clear language in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 6), which the ASMFC adopted in 2003, requires the Management Board to end overfishing and reduce the fishing mortality rate to or below the target level within one year, and also requires the Management Board to rebuild the overfished striped bass stock to the biomass target within ten years.

If striped bass were a federally-managed species, subject to the terms of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), the Management Board’s next actions would be very clear. However, the ASMFC’s actions are not governed by Magnuson-Stevens, so the Management Board is not legally obligated to take any action at all.

The good news is that it seems to be taking its obligation to end overfishing very seriously. It has drafted a new addendum, Draft Addendum VI to Amendment 6 to the Interstate Fisheries Management Plan for Atlantic Striped Bass (Addendum VI), which has now been released for public comment. Addendum VI proposes a number of possible management measures that are expected to achieve the 18% reduction needed to reduce fishing mortality to the target level. Such measures include a possible 35-inch minimum recreational size limit on the coast or, as an alternative, three different slot limits (28-35 inches, 30-38 inches and 32-40 inches) intended to protect both immature bass and the largest and most fecund spawning females.

Size limits in Chesapeake Bay would either decrease to 18 inches, if the bag limit was also decreased to one fish, or increase to 22 inches if the current two-fish bag was retained, or alternative slot limits of either 18-23 or 20-24 inches.

All states’ commercial quotas would be cut by 18%, although Amendment VI also contains an alternative proposal that would only require a 1.8% reduction in commercial quotas, while increasing the coastal size limit to 36 inches and making corresponding adjustments to the slot limits and minimum size in Chesapeake Bay.

In addition, Addendum VI proposes the mandatory use of circle hooks when bait fishing for striped bass, in order to reduce the number of fish that are hooked in the gills, gullet or gut and die after being released.

If Addendum VI doesn’t meet with overwhelming public opposition, which is very unlikely, it is expected to be approved by the Management Board, and adopted by the ASMFC, at the ASMFC’s October meeting.

But what Addendum VI doesn’t do is rebuild the stock within ten years, even though such rebuilding is required by Amendment 6. It’s possible that the Management Board will choose to address such rebuilding in a new amendment to the management plan, which it might initiate at its May meeting. On the other hand, it’s also possible that such amendment, if initiated, will change the reference points, which are the standards used to evaluate the health of the stock, in a way that permits a larger annual harvest, but at the cost of permanently decreased abundance and greater long-term risk to the spawning stock.

Unlike federal fishery managers, the ASMFC isn’t legally required to rebuild overfished stocks, nor is it required to follow the dictates of the best available science. That makes it more difficult to predict how any management issue will finally be resolved. Fishery management at the state and ASMFC level has far fewer constraints than do their federal counterparts, so state- and ASMFC-level management actions also have more uncertain outcomes.

It’s interesting to speculate how striped bass management might have been different, and how the striped bass stock might have fared, had the ASMFC been governed by laws similar to those that govern federal fisheries managers.

On balance, it’s likely that the striped bass would have been in a much better place.

One of the biggest reasons for that is a provision in Magnuson-Stevens that requires the regional federal fishery management councils to “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process.” Such science-based annual catch limits serve as a safeguard against overfishing, and help to end overfishing quickly when it does occur.

The ASMFC does use such annual catch limits to manage the commercial striped bass fishery, but it manages the recreational fishery with a “soft” fishing mortality target; regulations usually remain unchanged for many years at a time, regardless of the changing size of the striped bass stock or the actual fishing mortality rate attributable to the recreational sector.

As a result, the ASMFC was slow to take action when striped bass faced the situation described in Addendum VI, where

Female [spawning stock biomass] peaked in 2003, and has been declining since then; [spawning stock biomass] has been below the threshold level [meaning that the stock has been overfished] since 2013. Total [fishing mortality] has been at or above the threshold [meaning that the stock has been experiencing overfishing] in 13 of the last 15 years of the assessment (2003-2017)…Striped bass experienced a period of lower recruitment from 2005-2011 which contributed to the decline in female [spawning stock biomass] that the stock has experienced since 2010.

To be completely fair, the 2018 Assessment included new data that was not available in earlier stock assessments, so until that assessment came out, the ASMFC couldn’t know that overfishing was occurring for most of the past 15 years, nor could it know that the stock had become overfished in 2013.

However, the ASMFC did know that the spawning stock biomass had begun to decline in 2003, and that recruitment began to decline soon after that, yet it didn’t make a serious effort to change the recreational regulations, and adjust them for the decline in spawning stock biomass, until 2014.

One halting effort to stop the decline, initiated in 2011, was eventually deemed to constitute “overmanaging,” and abandoned later that year.

Such unchanging regulations in the face of a declining stock couldn’t have been maintained under an annual catch limit scenario, which would have required regulators to act every year to assure that landings did not remove too great a portion of the remaining population.

Annual catch limits would have also set the stage for another important provision of Magnuson-Stevens that is absent from the ASMFC process: The requirement that all fishermen, including anglers, be held accountable when catch limits are exceeded.

Under the soft fishing mortality targets used to manage the recreational striped bass fishery, anglers face no penalty, not even the prospect of more restrictive regulations, when the target is exceeded.

When the Management Board adopted Addendum IV to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass in 2014, it required that fishermen in Chesapeake Bay reduce fishing mortality by 20.5%. While the Bay’s commercial fishermen adhered to that standard, Chesapeake Bay anglers made no reduction at all, but instead increased their landings by more than 50%.

While that increase was unexpected, overharvest of the same or even greater magnitude continued through at least 2018, with no effort made to amend regulations in order to reduce recreational landings or hold Chesapeake Bay anglers accountable for such continued overages, even though many of the fish being killed belonged to the large 2011 and, later, 2015 year classes that managers were depending on to increase the spawning stock.

And, even up to today, the ASMFC has exerted little effort to rebuild the spawning population. Even though Amendment 6 contained a measure that required the Management Board to begin drafting a 10-year rebuilding plan in 2014, such requirement was completely ignored. Such inaction caused a stock that was already overfished (although the ASMFC wasn’t aware of that at the time) to decline farther, and created a need for even more restrictive regulations if such rebuilding is ever to be achieved.

Yet it appears that, even with the stock overfished, the ASMFC is in no hurry to begin stock rebuilding. Addendum VI only addresses overfishing, and not the overfished state of the stock, despite the clear rebuilding requirements in Amendment 6.

Neither of those failures to initiate a rebuilding plan would have been likely under Magnuson-Stevens. The 2014 decision to ignore an unambiguous rebuilding requirement included in Amendment 6 would almost certainly have been deemed an “arbitrary and capricious” action and left the ASMFC vulnerable to a court challenge; under existing law, ASMFC’s management decisions are not subject to judicial review.

And the current failure to address rebuilding the overfished stock could not have occurred under Magnuson-Stevens which, independent of any language in Amendment 6, would have required the stock to be rebuilt within ten years.

So yes, the ASMFC is taking some meaningful steps to address the striped bass situation. But if the ASMFC was governed by Magnuson-Stevens, managers might have been compelled to intervene far earlier to halt the stock’s decline. In such case, the current actions might not have been needed.

And if the stock had become overfished, managers bound by Magnuson-Stevens couldn’t merely end overfishing; they would have been legally compelled to initiate a 10-year rebuilding plan.

Thus, it appears likely that the striped bass stock would, in fact, be more robust, and be facing a more certain future, if the ASMFC had been subject to the provisions of Magnuson-Stevens.

About Charles Witek

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

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