Mid-Atlantic Black Sea Bass: “Is The Magnuson Act Optional?”

Black sea bass

Of all the fisheries on the East Coast, the mid-Atlantic black sea bass stock may present the most challenging management issues.

The fish aren’t in immediate peril; the most recent stock assessment update indicated that spawning stock biomass was more than twice the target level. Overfishing is not taking place, and young fish continue to be recruited into the stock in adequate numbers.

At the same time, recreational catch regularly exceeds the recreational harvest limit (RHL). The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board (Board) seem neither willing nor able to take the actions needed to prevent such overages.

In some ways, black sea bass have become victims of their own success. The stock was badly overfished during the late 1980s and early 1990s. Overfishing continued until 2007. But once the Council and Board managed to end overfishing, the stock began to grow; such growth was hastened by warming winter waters at the edge of the continental shelf, which spurred the recruitment of juvenile fish into the stock.

Because recreational fishing effort is closely tied to abundance, as the black sea bass population expanded, more and more anglers began targeting the species. Off New England, fishery managers saw angler trips primarily targeting black sea bass increase from 31,400 in 2000 to 190,100 in 2010 to 621,600 in 2020.

Recreational harvest in New England waters also increased, growing from 294,000 fish in 2000 to 1,601,000 in 2020, even though recreational fishing regulations grew much more restrictive over that time. A similar pattern was seen in New York, where black sea bass harvest increased from 460,000 fish in 2000 to 1,274,000 two decades later, while directed black sea bass trips jumped from 141,000 to 562,000 over the same period.

As a result of such increased fishing effort, anglers exceeded the RHL in eight of the eleven years between 2010 and 2020, with such overages ranging from a nominal 4% in 2018 to a striking 141% in 2012; in six of the eight years, the RHL was exceeded by over 50%. Based on the landings during the first eight months of 2021, managers expect anglers to exceed this year’s RHL.

A History of Inaction

Yet, despite such repeated overages, the Council and Board have, since 2019, made no effort to keep recreational catch at or below the RHL.

2019 was a critical year, for it was the year that the Marine Recreational Information Program (MRIP) which both the Council and Board use to estimate recreational effort, catch, and landings, replaced its venerable Coastal Households Telephone Survey, used to estimate angling effort, with a new, mail-based Fishing Effort Survey. The new survey revealed that angling effort, and so recreational catch and landings, were much higher than previously believed.

An operational stock assessment, released in 2019, included MRIP’s higher landing estimate among the data that it used to calculate the spawning stock biomass; as a result, such assessment estimated black sea bass spawning stock biomass at 33,407 metric tons at the end of 2018, which was much higher than the 22,176 metric tons estimated for 2015 in the last benchmark stock assessment—even though the spawning stock biomass has been declining since 2014.

The higher biomass estimate in the operational assessment led the Council and Board to increase the RHL from 3.66 million pounds in 2019 to 5.48 million pounds in 2020 and 2021. Yet recreational landings remained substantially higher; Council staff predicted that the coastwide black sea bass landings for 2019 would be about 7.33 million pounds, well in excess of the 2020 RHL. Such overage would normally mean that the recreational black sea bass regulations for 2020 would be made more restrictive, to prevent anglers from again exceeding the RHL.

Overages were not unusual in the recreational black sea bass fishery. The average of recreational landings for the years 2016-2018 substantially exceeded not only the average RHLs for those years, but the recreational sector’s annual catch limits (ACLs), too. When average landings exceed the average ACLs in any three-year period, while spawning stock biomass remains above the target level, accountability measures in the black sea bass management plan require “consideration of adjustments to the recreational bag, size, and/or season limits in response to the ACL overage, taking into account the performance of the measures and conditions that precipitated the overage.”

Such adjustments were never discussed by either the Council or Board.

Council staff recognized that “there may be a consideration that the 2020 recreational management measures in state and federal waters remain unchanged from 2019 to allow the Council and Board time to transition to a management system that accounts for the new MRIP estimates in a more gradual fashion,” but warned that “status quo recreational management measures in 2020 could pose an unacceptably high risk of exceeding the [Overfishing Limit]. [emphasis in the original]”

Yet, despite that warning, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee), which is composed of individuals representing the Council, the National Marine Fisheries Service (NMFS), the Board, and affected states, recommended that the Council and Board make no changes to the recreational black sea bass regulations, despite the likelihood that anglers would exceed the 2020 RHL.

The Monitoring Committee justified its recommendation by saying, “it is very hard to justify a reduction when the RHL is increasing by 59% compared to 2019, spawning stock biomass was 2.4 times the target level in 2018, and availability to anglers remains very high…it is challenging to constrain the recreational fishery under current high levels of availability and further restrictions on harvest would likely increase discards…spawning stock biomass has remained very high despite multiple years of [Acceptable Biological Catch] overages going back at least to 2015…”

The Monitoring Committee recommended status quo measures, rather than the 29% reduction suggested by Council staff, even though it fully recognized that such measures were likely to cause recreational harvest to exceed the RHL by 26%, the recreational ACL by 23%, and the Acceptable Biological Catch (ABC) by 12%. Such recommendation would appear to be a clear violation of NMFS policy, as well as a violation of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all fishing in federal waters.

Section 302(h)(6) of Magnuson-Stevens requires each 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…” Such fishing level recommendations take the form of the ABC. By recommending 2020 recreational black sea bass regulations that it knew would probably result in the 2020 black sea bass ABC being exceeded by 12%, the Monitoring Committee rendered the ABC and recreational ACL meaningless, an action clearly inconsistent with the relevant section of Magnuson-Stevens.

Moreover, NMFS’ published guidelines for establishing ACLs and related accountability measures state that “If catch exceeds the ACL for a given stock or stock complex more than once in the last four years, the system of ACLs and [accountability measures] should be reevaluated, and modified if necessary, to improve its performance and effectiveness.” The Monitoring Committee admits that there were “multiple years…going back to at least 2015” when black sea bass overages exceeded not only the ACL, but the ABC as well. Yet, instead of recommending a reevaluation of the ACLs and accountability measures, it recommended status quo.

Both the Council and Board concurred.

Events were little different a year later, when 2021 management measures were discussed.

Thanks to a new Council risk policy, the 2021 black sea bass RHL was 6.34 million pounds, the highest RHL ever set for the species. But, because COVID-19 had affected the MRIP catch surveys, no estimates of 2020 landings were available; 2019 data would have to be used. 2019 recreational black sea bass landings totaled 8.61 million pounds, more than 2 million pounds more than the 2021 RHL. Once again, more restrictive regulations were called for, and once again, the Council and Board maintained the status quo.

This time, even Council staff advised against change, saying “Given challenges associated with transition to management based on the new MRIP data, high availability of black sea bass to anglers, and a very healthy stock status, the Council and Board agreed to leave recreational management measures remain [sic] unchanged in 2020 compared to 2019 to allow more time to gradually transition to a management system that accounts for the new MRIP data. These conditions remain relevant for 2021 recreational management measures.”

The supposed “challenges” posed by the new MRIP data were used to justify maintaining status quo regulations for both 2020 and 2021. However, given that the same new MRIP data was used to calculate the higher RHLs adopted for both 2020 and 2021, it’s not clear why data that was acceptable for use in an operational stock assessment, and so presumably represented the best available scientific information, was not also suitable for determining when anglers might have exceeded their new, higher harvest limits. Neither Council staff nor the Monitoring Committee chose to explain that seeming contradiction.

Will 2022 Be Different?

Because of the status quo regulations, anglers substantially exceeded the RHL again in 2021. Although final figures have yet to be compiled, Council staff projects that 2021 recreational black sea bass landings will be about 11.98 million pounds, 89% above the RHL, even before dead discards, which typically add between three and four million additional pounds to the total, are considered.

Because of the uncertainty inherent in MRIP estimates, Council staff recommended that, instead of basing 2022 management measures solely on 2021 recreational harvest, the average harvest for the years 2018-2021, when recreational measures remain unchanged, be used. Even taking that approach, recreational landings would have to be reduced by about 28% in order to keep recreational landings at or below the RHL.

In making its recommendation, Council staff warned that,

The recreational ACL and the RHL are based on the best available science, are intended to prevent overfishing, and are reflective of recent stock status. Therefore, allowing multiple years of recreational overages may pose a risk to the stock, even at high biomass levels. In addition, NMFS has indicated that although status quo measures were justified for 2020 and 2021 despite expected RHL overages, this approach may not be justifiable for 2022. The [Monitoring Committee] should take this into consideration when developing their recommendation for 2022 management measures. [emphasis in original]

Despite that warning, when the joint Council/Board Summer Flounder, Scup, and Black Sea Bass Advisory Panel met on November 18, 2021, the Monitoring Committee again recommended status quo management measures for the 2022 season. If NMFS insisted on imposing accountability measures, the Monitoring Committee arbitrarily suggested reducing landings by just 14%, half the reduction recommended by Council staff.

Thus, the Monitoring Committee again recommended that both Council and Board again render the RHL meaningless, while holding commercial fishermen to their annual quotas.

Growing Discontent

Such disparate treatment did not go over well with representatives of the commercial fishing industry.

George Topping, a Maryland commercial fisherman who sits on the advisory panel, complained about the lack of recreational accountability, saying “Somebody needs to hold these people accountable…To keep rewarding these people and giving them more fish is never going to solve the problem.”

Yet, despite such concerns, the Council and Board are moving forward with a so-called Recreational Reform Initiative (Initiative), which would address recreational excesses not by crafting management measures that more effectively constrain anglers’ harvest, but by eliminating the RHL and, in some versions of the Initiative, by completely decoupling recreational management measures from both the ACL and annual recreational landings.

No one has yet determined whether the Initiative complies with the mandates of Magnuson-Stevens.

The Council’s willingness to ignore the spirit, and very probably the letter, of Magnuson-Stevens when managing black sea bass caused Meghan Lapp, Secretary of the Center for Sustainable Fisheries and a representative of Rhode Island-based Seafreeze Ltd., to say at the recent Advisory Panel meeting, that the continued recreational overages were “not acceptable,” and to ask, “Is the Magnuson Act optional?”

She went on to ask whether, if there is “no strong conservation need” for further restrictions on the recreational fishery, there is also no strong conservation need for commercial restrictions.

It was a good question, for whatever the black sea bass may or may not need, it is difficult to justify holding one sector strictly accountable for its landings while allowing another to shirk its obligations under the management plan.

A Legal Question

It’s not even clear whether the Council may legally ignore chronic recreational overages in the black sea bass fishery.

In 2014, the United States District Court for the District of Columbia decided the case of Guindon v. Pritzker, which addressed a very similar issue, the Gulf of Mexico Fishery Management Council’s repeated failure to hold anglers accountable for chronically overfishing red snapper. In its decision, which found that NMFS had failed to meet its obligations under Magnuson-Stevens, the court stated that

Under the MSA, NMFS has a statutory duty to: prohibit the retention of fish after quotas are reached in the Gulf of Mexico red snapper fishery; use the best scientific information available when making management decisions; require whatever accountability measures are necessary to constrain catch to the quota; avoid decisions that directly conflict with the [fishery management plan’s] allocation of catch; and, where sectors are managed separately, avoid penalizing one sector for overages that occur only in another.

Admittedly, the mid-Atlantic black sea bass fishery differs in some important respects from the Gulf fishery for red snapper; most particularly, black sea bass abundance is high, while red snapper were still overfished when Guindon was decided. The recreational accountability measures applicable to black sea bass also prohibit the imposition of in-season closures to prevent recreational overages, and only require the Council to “consider,” rather than actually impose, accountability measures if such overages occur when spawning stock biomass is greater than its target level. For those reasons, some might argue that the court’s reasoning in Guindon doesn’t apply to the black sea bass fishery.

Yet, there are enough similarities between the actions that gave rise to Guindon and the Council’s failure to address recreational black sea bass overages to suggest that the Guindon court’s logic would apply to black sea bass as well. The court’s finding that “NMFS has a statutory duty to…require whatever accountability measures are necessary to constrain catch to the quota” is particularly relevant, as it seems to imply that merely considering accountability measures, that are never actually required, may not be enough to fulfill the Council’s obligations.

When the Council and Board meet in joint session, on the afternoon of December 14, 2021, to discuss recreational management measures for the 2022 black sea bass season, they will have to choose between finally taking action to rein in recreational overharvest or, once again, doing nothing at all.

The choice that they make will answer Ms. Lapp’s question, “Is the Magnuson Act optional?” with respect to black sea bass.

We can only hope that their answer is “No.”

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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