Recreational Fishery Reform in the Mid-Atlantic: Sidestepping Magnuson-Stevens?

Recreational anglers

Since March 2019, the Mid-Atlantic Fishery Management Council (Council), in conjunction with the Atlantic States Marine Fisheries Commission (ASMFC), has been working on what they call the “Recreational Reform Initiative,” (Initiative) a project that could completely change the way recreational fisheries are managed in the mid-Atlantic region.

The Council describes the Initiative this way:

The Recreational Reform Initiative considers improvements to management of the recreational fisheries for summer flounder, scup, black sea bass, and bluefish. This joint initiative…will address a range of recreational management issues through a joint framework/addendum and a joint amendment.

The framework/addendum will further develop and consider the following topics and management issues:

  • better incorporating [Marine Recreational Information Program] uncertainty into the management process;
  • guidelines for maintaining status quo recreational management measures (i.e., bag, size, and season limits) from one year to the next;
  • a process for setting multi-year recreational management measures;
  • changes to the timing of the recommendation for federal waters recreational management measures; and
  • a proposal put forward by six recreational organizations called a harvest control rule.

The amendment will consider options for managing for-hire recreational fisheries separately from other recreational fishing modes (referred to as sector separation) and will also consider options related to recreational catch accounting such as private angler reporting and enhanced vessel trip report requirements for for-hire vessels.

Goal/Vision:

  • Stability in the recreational management measures (bag, size, season)
  • Flexibility in the management process
  • Accessibility aligned with availability/stock status

Reading that description, one of the things that sticks out is that, despite all of the words, there’s not a single mention of maintaining healthy and abundant fish stocks.

That could signal a problem.

Recreational fishery management isn’t perfect, and could benefit from new approaches that account for management uncertainty, and perhaps align management changes with the biennial stock assessment updates that are produced for summer flounder, scup, black sea bass, and bluefish. Still, there is one aspect of the Initiative that might be taking recreational fishery management in the wrong direction.

That is the “proposal put forward by six recreational organizations called a harvest control rule” (Control Rule) which supposedly promotes the Initiative’s Goal/Vision of stability, flexibility, and accessibility in recreational fishery management.

If that Goal/Vision reminds you of the debate over the so-called “Modern Fish Act” a few years ago, that’s not a coincidence. The organizations promoting the Control Rule are the same ones that promoted the Modern Fish Act, and are continuing to disrupt red snapper management in the Gulf of Mexico; they are now bringing the same arguments that they have made in the Gulf to the mid-Atlantic region.

They haven’t concealed their intent to undermine the current federal fishery management system, and its use of science-based annual catch limits and accountability measures, in favor of the sort of less structured, seat-of-the-pants management measures that are often used by state agencies, and which have so often failed when employed by the ASMFC.

Their letter to the Council, promoting the Control Rule, flatly states that “we strongly support NOAA Fisheries using management approaches for our sector other than pound-based quotas…Over many decades, states have proven the ability to balance conservation and access by managing America’s millions of saltwater anglers through these approaches in state waters…”

Yet, in the real world, efforts to “balance conservation and access” almost always end badly. Management measures that failed to fully provide for the biological needs of fish stocks, in order to accommodate higher recreational harvests, have led to the once-healthy striped bass stock becoming overfished once again, caused the precipitous decline in Louisiana’s speckled trout, and permitted such chronic overfishing of Texas’ red drum and speckled trout populations that the recreational fishery can only be maintained with large infusions of hatchery-produced fish.

Unfortunately, the Control Rule seems to be gaining real traction at both the Council and at the ASMFC. Those organizations held a two-hour joint meeting in August 2021, solely to discuss the topic. Materials distributed prior to the meeting explained, “The overarching goal of the Harvest Control Rule is to rely less on expected fishery performance compared to a catch or harvest limit…and instead use a more holistic approach that places greater emphasis on traditional and non-traditional stock status indicators.”

At a meeting of the Council’s Fishery Management Action Team (FMAT) and the ASMFC’s Plan Development Team (PDT) held on August 23, 2021, it was clear that both the Council and the ASMFC intended to use the Initiative to develop regulations for the 2022 fishing season.

To that end, the Council and ASMFC developed four sets of alternative management approaches that might achieve the Initiative’s goals. All of them abandon the current practice of setting a fixed recreational harvest limit (RHL), comparing it to current recreational landings, and then adjusting management measures, depending on whether landings were above, roughly equal to, or substantially below such limit.

Council and ASMFC staff invested a substantial amount of time, skill, and effort in developing all four alternatives, which collectively consider a host of factors ranging from biomass to recruitment to trends in fishing mortality; they represent an impressive body of work. Yet the question remains: What are any of the alternatives intended to accomplish?

At the August 23 meeting, Savannah Lewis, who is heading the PDT for this project, stated that the “overarching goal” of the Initiative was to provide stability in management measures. However, if that were the Initiative’s primary purpose, such goal could be achieved far more easily, and with a far smaller investment of time and resources, merely by establishing a recreational harvest target that was set somewhat lower than the RHL, to account for management uncertainty.

Adam Nowalsky, a Council member from New Jersey, probably came closer to describing the Initiative’s true purpose at the earlier joint meeting of the Council and ASMFC, when he observed that it “provided a path forward” to liberalizing regulations governing stocks at high levels of abundance.

In other words, the Initiative will let anglers take home more fish.

While that might be a worthwhile goal, his comments elicit the question “Why can’t they harvest more fish today?”

The answer would seem to be the conservation and management provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which set very clear, legally-enforceable standards for fishery management measures.

Pursuant to Magnuson-Stevens, the Council’s Scientific and Statistical Committee (SSC) must recommend a maximum fishing level for each managed fish stock. That is typically the acceptable biological catch (ABC), which is set somewhat below the overfishing limit to account for any scientific uncertainty. The Council must then set an annual catch limit (ACL) for such stock, which may not be higher than the ABC, and allocate the catch limit between the commercial and recreational sectors. Once such allocation determines the recreational catch limit, managers estimate how many fish will die after being released by anglers, and deduct that amount from the catch limit to finally come up with the RHL.

It’s a very simple, data-driven process, although it is not without its problems. Because of the uncertainty inherent in estimates of fish abundance, angling effort, and recreational landings, the RHL can often seesaw from year to year as the estimates change, even though both fish abundance and recreational landings remain relatively stable. The Initiative seeks more regulatory stability by partially or completely decoupling management measures from estimates of recreational harvest.

But in doing that, is the Initiative also providing a way to evade the strict, and historically effective, management approach required by Magnuson-Stevens?

There is reason to worry that is the case.

No one on the FMAT or PDT can yet explain how Magnuson-Stevens’ requirement that the Council establish an ACL for each managed stocks impacts the Initiative. At the August 23 meeting, Julia Beatty, who leads the FMAT, noted that it wasn’t clear whether the Initiative’s management measures would be tied to the ACL, or whether the Council would merely invoke some sort of accountability measures if it learned, in retrospect, that recreational landings were too high.

She observed that it was “open-ended what we can legally do” in that regard, and noted that the National Marine Fisheries Service’s (NMFS) Greater Atlantic Regional Fisheries Office (GARFO) has advised the Council that it has significant flexibility to craft management measures.

Still, “open-ended” might be overstating Council’s legal position vis-à-vis the provisions of Magnuson-Stevens.

It’s not hard to imagine that someone, perhaps one of the large marine conservation organizations, might challenge the Council’s decision to adopt recreational management measures that aren’t explicitly tied to the ACL. If that happens, and if NMFS endorses the Council’s decision despite such objection, it’s also not hard to imagine the agency ending up in court, where its attorney would have to explain to a judge that the agency established an ACL, just as Magnuson-Stevens required, but didn’t consider that ACL when it adopted recreational management measures, because Magnuson-Stevens didn’t explicitly say that it had to.

Few judges are likely to uphold such an argument.

NMFS might also have a difficult time explaining how management measures developed pursuant to the Initiative would comply with at least two of the National Standards for Fishery Conservation and Management contained in Magnuson-Stevens.

There are ten such National Standards. National Standard 1 states, in part, that “Conservation measures shall prevent overfishing.” A 2000 federal appellate court decision, in the matter of Natural Resources Defense Council v. Daley, construed such language to mean that fishery management measures must have at least a 50% probability of accomplishing that goal.

It is not yet clear how the Council or NMFS will determine that fishery management measures, linked to neither the ACL, the ABC, nor estimates of recreational harvest, have no less than a 50% probability of preventing overfishing. If the Initiative moves forward, NMFS‘ attorneys may very well have to defend the effectiveness of such measures in court.

The good news is that Emily Keiley, who represents GARFO on the FMAT, has stated that she will run the Initiative’s management proposals past NMFS’ National Standard 1 specialists, to confirm that they comply with the applicable guidelines. There is reason to hope that litigation can still be avoided.

Another national standard, National Standard 2, states that “Conservation and management measures shall be based on the best scientific information available.” The Initiative may fall short of that mandate as well, particularly if it is used to set 2022 management measures.

There are some very good scientists sitting on the FMAT and PDT. They are working on two different models that might be used to implement management measures pursuant to the Initiative. However, neither model has yet been completed, and neither is expected to be finished at any time soon.

One of the scientists on the FMAT explicitly stated that “I don’t think either model is going to be in place on the biological side…for 2022.” His observation evoked a response from a PDT member, to the effect that the FMAT and PDT shouldn’t constrain themselves from moving forward with the Initiative simply because the models aren’t perfect, since the models and resulting management measures could always be revisited later.

While such response makes sense for the ASMFC, which has no legal obligation to base its management measures on the best available science, NMFS’ management actions are governed by National Standard 2; it will have to decide whether management measures developed pursuant to an incomplete biological model would meet its legal obligations pursuant to National Standard 2.

It’s difficult to predict what NMFS might decide, but it’s easy to believe that implementation of the Initiative shouldn’t be rushed. Why not get the science right the first time, instead of being forced to go back and fix earlier mistakes? And why not resolve the legal issues at the same time?

The fishing industry and anglers’ rights organizations which support the Control Rule argue that “the Modern Fish Act authorized the regional fishery management councils to use additional management tools [besides annual catch limits] more appropriate for recreational fishing, many of which are successfully used by state fisheries agencies (e.g., extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities.)”

That statement is true.

But it is also true that the Modern Fish Act intended such measures to only supplement, and not replace, the ABCs, ACLs, rebuilding deadlines, and accountability measures required by Magnuson-Stevens. The Modern Fish Act specifically states that

Nothing in this Act shall be construed as modifying the requirements of sections 301(a) [the National Standards], 302(h)(6) [requiring annual catch limits], 303(a)(15) [requiring management measures that prevent overfishing and hold fishermen accountable for their overages], or 304(e) [rebuilding overfished fisheries] of the Magnuson-Stevens Fishery Conservation and Management Act…or the equal application of such requirements and other standards and requirements under the Magnuson-Stevens Fishery Conservation and Management Act…to commercial, charter, and recreational fisheries, including each component of mixed-use fisheries.

Thus, the question remains.

Will the Initiative improve the recreational fishing experience while maintaining the long-term sustainability of mid-Atlantic fish stocks? Or will it be used to undercut the science-based management measures that lie at the heart of Magnuson-Stevens, increasing recreational landings while decreasing the protections afforded to the mid-Atlantic’s marine resources?

Right now, it is too early to know. But it is not too early to become concerned, and monitor the Initiative’s progress closely, to assure the integrity of the fishery management process.

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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