Striped bass photo by John McMurray

“Those who cannot remember the past are condemned to repeat it.” George Santayana’s words have been repeated so often that they’ve become a cliché.

Yet, repeated or not, they’re undoubtedly true. But when it comes to fisheries matters, merely remembering the past isn’t enough; in order to prevent making the same mistakes over and over again, fisheries managers must not only remember the past, but also learn from it.

Today, we can look to the federal fisheries management system with pride, and rightly call the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in federal waters, as the most effective, and most comprehensive, fishery management law in the world. Yet things were not always that way.

When Magnuson-Stevens’ forerunner, the Fishery Conservation and Management Act of 1976 (1976 Act), was signed into law, Congress’ primary intent was to force most foreign vessels to fish 200 miles or more from the United States’ shores, so that domestic fish stocks were not threatened by foreign fleets. Protecting such stocks from the United States’ fishermen was, at best, a secondary consideration.

The 1976 Act established the regional fishery management council system, creating eight such councils that were, and still are, peopled largely by representatives of the fishing industry. The councils were charged with conserving and managing the nation’s living marine resources, but during the two decades that followed the passage of the 1976 Act, they spent most of the time protecting the fishermen’s interests, and not those of the fish.

The 1976 Act required that stocks be managed for “optimum yield,” which it defined, in part, as “the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.” The “as modified” language in that definition sounded a death knell for the health of many fish stocks, as councils routinely established optimum yields that began with maximum sustainable yield (MSY)—the most fish that could be removed from the stock without causing long-term harm—and then “modified” that figure upwards due to the most basic economic factor of all: Fishermen wanted to maximize profits in the short term.

A 1995 article, “Twilight of the Cod,” which appeared in Discover magazine, described how that worked out in New England, which once hosted some of the most productive fisheries in the world.

“During the 1980s the New England [Fishery Management] council proved itself unwilling to control fishing. Indeed, one of its early actions, in 1982, was to eliminate catch quotas. Its goal, it said, was a simpler system that allowed the fishery to operate in response to its own internal forces. As the decade progressed, the fishery did just that—and as [National Marine Fisheries Service] scientists warned of declining stocks of cod, haddock, and yellowtail flounder, the council dithered.”

As a result, stocks of most New England groundfish quickly declined. Some collapsed. Many have yet to recover.

It was clear that the fishermen and fishing industry representatives on the regional fishery management councils were unwilling to regulate themselves and, given the choice, would always opt for maximizing their income in the short term, rather than assuring the long-term sustainability of the nation’s fish stocks. In response, Congress amended the 1976 Act by passing the Sustainable Fisheries Act of 1996 (SFA). The result created a Magnuson-Stevens that was very similar to the law that exists today.

The old definition of “optimum yield” was changed under the SFA, to read “the maximum sustainable yield from such fishery, as reduced by any relevant economic, social, or ecological factor. [emphasis added]” Optimum yield could no longer be set above MSY; the prospect of greater economic gain could no longer be used to justify overfishing any fish stock.

Under the SFA, overfishing wasn’t tolerated at all. And for the first time, regional fishery management councils were required to rebuild overfished stocks within a ten-year period if it was biologically possible to do so, unless such stock was subject to an international fisheries agreement that established a different rebuilding timeline. Fishery management measures had to be based on the best scientific information available.

If the National Marine Fisheries Service (NMFS) failed to uphold the standards that the SFA established for federal fisheries managers, its decisions could be challenged in federal court. That’s exactly what happened after NMFS ratified a Mid-Atlantic Fishery Management Council amendment to the summer flounder management plan that was unlikely to prevent overfishing. The Natural Resources Defense Council sought judicial review of the amendment and, in the landmark decision Natural Resources Defense Council v. Daley, a federal appellate court established the principal that any federal fishery management action must have at least a 50 percent probability of achieving its goals. Any management action that fell short of that standard was deemed to be legally flawed.

New management actions that met the court’s standard were put into place, and fish stocks began to increase, but overfishing still plagued many others. In response, Magnuson-Stevens was amended again in 2006. The new amendment required regional fishery management councils to establish annual catch limits for all managed stocks, required such councils to hold fishermen accountable when they exceeded such limits, and prohibited the councils from setting catch limits higher than the “allowable biological catch” for each stock established by the scientists on the councils’ Scientific and Statistical Committees.

As a result of the SFA and the 2006 amendments to Magnuson-Stevens, federal fisheries managers have had substantial success in rebuilding fish stocks. 46 once-overfished stocks have been fully rebuilt, while many others are no longer overfished, and well on their way to recovery. Only 28 out of 321 stocks—just 9 percent—are experiencing overfishing.

Federal fishery managers can be proud of such success. Unfortunately, the inshore fisheries of the Atlantic Coast have yet to enjoy the same sort of effective, science-based management.

Many of those fisheries are managed by the Atlantic States Marine Fisheries Commission (ASMFC), an organization established by interstate compact in 1942, for the purpose of cooperatively managing Atlantic Coast fisheries.

For many years, the ASMFC was merely an advisory body, which had no real authority to manage fish stocks. That changed after the coastal migratory striped bass stock crashed in the late 1970s and showed no sign of rebuilding. It became clear that the states, acting on their own, would not set aside their parochial squabbles and adopt an effective rebuilding plan, so Congress passed the Atlantic Striped Bass Conservation Act (Striped Bass Act) in 1984, giving the ASMFC the authority to impose its striped bass management plan on all member states.

The striped bass recovered as a result, and Congress passed the Atlantic Coastal Fisheries Cooperative Management Act (Coastal Fisheries Act) in 1993, which gave the ASMFC management authority over all species under its jurisdiction. It seemed like a promising move.

At the ASMFC, each species is managed by a separate species management board. Like the regional fishery management councils, the various species management boards are dominated by fishermen or representatives of fishing-related industries, who have an economic interest in the fisheries they manage. But unlike the regional fishery management councils—or, perhaps more to the point, like the regional fishery management councils prior to passage of the SFA—there are no legal limits on the exercise of the ASMFC’s discretion.

Thus, the ASMFC’s management boards are free to ignore the best scientific information available, and to allow short-term economic considerations to shape management actions. They are not required to end overfishing, not required to rebuild overfished stocks, not required to set annual harvest limits, and not required to hold fishermen responsible when they overfish. They are not even required to enforce the provisions of their own fishery management plans.

Even if a management action is completely arbitrary and capricious, and a clear abuse of management board discretion, stakeholders have no recourse to the courts, as a 2010 court decision found that the ASMFC’s management actions are not subject to review under the federal Administrative Procedure Act.

Given how closely today’s ASMFC management boards resemble the regional fishery management councils of twenty-five years ago, it should hardly be surprising that they yield similar results: Fish populations that are, for the most part, depleted or in decline. Out of the 22 stocks managed solely by the ASMFC, 10 are overfished/depleted, only 4 are not, and the status of the other stocks is unknown.

Stocks that are jointly managed by the ASMFC and NMFS are faring much better, with only 3 out of 9 overfished. That success is hardly surprising, as the management plans for such stocks are governed by Magnuson-Stevens, which sharply curtails the discretion of the ASMFC’s management boards.

Whether a person measures from 1942, when the ASMFC was created, from 1984, when the Striped Bass Act was passed, or from 1993, when the Coastal Fisheries Act was became law, one sobering fact remains true: the ASMFC has never in its history rebuilt an overfished stock and then maintained that stock at sustainable levels.

The ASMFC came close to doing so with striped bass, a stock that it successfully rebuilt after the stock collapsed in the late 1970s and early 1980s. But when a period of below-average spawning success caused that stock to begin to decline over a decade ago, the ASMFC failed to respond in time to prevent the striped bass stock from experiencing overfishing, and becoming overfished once again. We can only hope that, this time, the rebuilding effort will again be successful.

But there is no guarantee that will occur.

The only thing that almost certainly is guaranteed is that, so long as the ASMFC’s species management boards are able to craft management measures that elevate the wants of the fishermen above the needs of the fish, the stocks that they manage are unlikely to thrive.

It is time to learn from the past, when a similar situation plagued the regional fishery management councils. That past teaches that the fishermen who sit on a management body will consistently favor policies that benefit themselves in the short term, regardless of how such measures affect the long-term health of fish stocks. The past teaches that the only way to ensure the sustainability of fish populations is to limit such fishermen’s discretion, by imposing legal requirements that force them to follow the science, end overfishing and promptly rebuild overfished stocks.

If the ASMFC’s management boards fail to comply with such legal requirements, the federal courts must have jurisdiction to review ASMFC management actions, and overturn those which fail to protect the long-term health of fish stocks.

Thus, it is time to consider legislation which amends either Magnuson-Stevens or, more likely, the Coastal Fisheries Act, legislation that might be deemed the “Sustainable Atlantic States Fisheries Act,” which will compel those who sit on ASMFC’s management boards to accept their responsibility to manage fish for the good of the public, instead of themselves.

If the past teaches us anything about fisheries management, it teaches us that.