Actions have consequences.

At least they should. If someone does something that is contrary to the public interest, they ought to pay an appropriate price for the harm that they do. But when it comes to fisheries management, things don’t always work out that way.

For a very long time, fishermen were allowed to overfish, and to deplete fish populations, without any consequences at all. Although the law now known as the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) was originally passed by Congress in 1976, overfishing still continued for many years. It took another twenty years, and a continued decline in the nation’s fish stocks, to convince federal lawmakers to pass the Sustainable Fisheries Act of 1996 (SFA), which amended Magnuson-Stevens by prohibiting overfishing and requiring the prompt rebuilding of overfished stocks.

It was an important step forward, but overfishing remained a serious problem. In 2000, a federal appellate court found that in order to comply with the requirements of Magnuson-Stevens, any fishery management measure must have at least a 50% chance of achieving its desired goal; anything less would not provide the “fairly high level of confidence” that the law required.

In response, federal fishery management councils, which were dominated by fishermen who, prior to the passage of SFA, spent most of their time trying to avoid adopting any management measure that might meaningfully restrict either their landings or the associated income, did their best to adopt rules that barely met that minimum standard, and had no more—but also no less—than a 50% chance of preventing overfishing or rebuilding an overfished stock within the legally-required 10-year timeframe.

As a practical matter, that sort of precision was impossible to achieve, as there is always uncertainty in scientific calculations. Add the management uncertainty that arises out of landings estimates, the future behavior of fishermen and a host of other factors, and it quickly became clear that management measures drafted with just a 50% probability of success were likely to miss their mark in one direction or another.

When such plans led to lower than expected landings, little harm was done. While leaving a few extra fish in the ocean did have mildly negative economic implications in the short term, it still helped to assure a healthy stock, and healthy fisheries, in the future. But when management plans weren’t restrictive enough to end overfishing or rebuild overfished stocks, opportunities for both commercial and recreational fishermen were diminished, and such fisheries’ futures were dimmed.

The fate of the formerly abundant New England cod stocks is probably the best example of how fisheries fail when overfishing continues for years.

Yet, so long as a fishery management measure met the 50% probability standard, and fishermen complied with such measure, such fishermen faced no consequences, even if overfishing continued to occur and fish stocks, rather than rebuilding, continued to decline.

That all changed late in 2006, when Magnuson-Stevens was reauthorized, for the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Reauthorization Act) contained two key provisions.

One such provision required every regional fishery management council 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 established [elsewhere in the law].” That provision effectively took away councils’ ability to mechanically adopt a 50% probability of success for every management measure. Instead, each council’s scientific and statistical committee was empowered to consider the nature and extent of the uncertainty that surrounded each management plan, and recommend fishing levels that took such uncertainty into account.

Still, a council’s scientific and statistical committee was not legally bound to incorporate uncertainty into every fishing level recommendation. Such committee could, if it wished, still recommend fishing levels that merely had a 50% chance of success. In some councils, such recommendations were frequently made.

But the Reauthorization Act included a second provision that helped to safeguard fish stocks from less risk-averse management plans. It required that all fishery management plans “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level that overfishing does not occur in the fishery, including measures to ensure accountability. [emphasis added]”

Hard-poundage catch limits, coupled with accountability measures, were a game-changer. It was no longer enough for a regional fishery management council to adopt measures such as seasons, gear restrictions, or size and bag limits, and then merely shrug if such measures did not, in the end, prevent overfishing. For the first time, each council was required to set a defined limit for annual landings. And for the first time, fishermen would face real consequences for exceeding that limit, even if they strictly complied with every management measure that the councils imposed.

Many fishermen were critical of such changes. The changes were particularly unpopular in places such as New England, where the New England Fishery Management Council had done away with annual quotas in 1982, in the forlorn hope that the fisheries would become self-regulating. Instead of regulating themselves, fisheries became free-for-alls that the council later tried to rein in with so-called “input measures” such as trip limits and limits on the number of days that a vessel could fish; still, the council eschewed annual quotas, which had become anathema to the region’s commercial fishermen.

Without such quotas, efforts to halt the decline of cod and some other groundfish stocks proved to be impossible.

Annual catch limits proved to be anathema to many recreational fishermen, too, who had long overfished popular species such as summer flounder and red snapper, and didn’t want to be held accountable for their excesses. With respect to summer flounder, one perennial critic of Magnuson-Stevens complained, “As long as we have these annual catch limits in our management plan, whenever [the recreational landings estimate] bumps into it, the recreational sector is going to lose. That’s why we need a full reauthorization of the Magnuson-Stevens Act.”

He clearly hoped that any such reauthorization would rescind the catch limit requirement.

But it was Gulf of Mexico red snapper anglers who expressed the loudest opposition to both annual catch limits, and to being held accountable when they overfished—as they chronically did. Their discontent gave rise to the so-called “Modern Fish Act” in the last session of Congress. That act, in its original form, would have allowed federal recreational fisheries to be managed with “alternative” measures that did not include annual catch limits, and would largely allow anglers to escape any form of accountability, should they overfish.

Despite federal fishery managers’ success in ending overfishing and rebuilding overfished stocks, Modern Fish Act proponents proposed that, when managing recreational fisheries, regulators should abandon their current approach, and instead emulate state fishery managers, who do not impose annual catch limits and don’t hold anglers responsible for their overages.

They suggested that

That would have been a convincing argument, if only it had been true. But the truth tells a very different story.
The Atlantic striped bass stock is overfished, and is experiencing overfishing. Both problems have continued for a number of years. In 2011, a stock assessment update informed fisheries managers that the stock would become overfished by 2017, but those managers declined to take any action to reduce harvest, even though they knew that the stock continued to dwindle.

They finally tried to reduce landings in 2014, after a new stock assessment found that the female spawning stock biomass was well below the target level, and that the fishing mortality rate had been exceeding the target for years. But even then, while they took steps to end overfishing, they took no decisive action to rebuild the overfished stock, even though the management plan required that they do so.

And when anglers in Chesapeake Bay failed to make the required 20.5% reduction in fishing mortality, and instead caused such mortality to increase by 58%, fishery managers did nothing to hold the anglers accountable in any way for their actions, and instead allowed them to continue overfishing.

Far from being a success, as Magnuson-Stevens’ critics have claimed, Atlantic striped bass management is a study in failure. Fisheries managers allowed the stock to collapse in the late 1970s, when there was no fishery management plan, brought it back to a full recovery during the late 1980s and early 1990s, and saw it increase to a near-term peak just fifteen years ago. But after that, they allowed the stock to decline and become overfished once again, by stubbornly clinging to long-term removal rates, that weren’t adjusted even after the stock fell into a deep, long-term decline.

And then, when managers finally imposed modest restrictions on the fishery, they failed to hold Chesapeake Bay anglers accountable after they increased their catch, at a time when they were supposed to be reducing fishing mortality.

So the striped bass stock is again in a bad place. Because actions have consequences.

If anglers are not held accountable, and made to face the consequences of their actions when they overfish, then those consequences will be borne by the fish stock itself.

And, as the striped bass has taught us, those consequences, for the stock, will not be good.