Magnuson-Stevens: Is Familiarity Breeding Contempt?

Commercial fishing boats - NOAA photo

People too often take things for granted, depreciating what they have simply because it’s familiar; sometimes, things must be seen through someone else’s eyes before they are fully appreciated. That certainly seems to be true of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens).

When the Sustainable Fisheries Act of 1996 (SFA) became law, amending Magnuson-Stevens, Congress created something which had not been seen before. Prior to the SFA, fisheries laws, including the Fishery Conservation and Management Act of 1976, which gave birth to Magnuson-Stevens, were primarily concerned with creating, protecting, and subsidizing fishing industries.

Magnuson-Stevens was the first law passed by a major fishing nation that was primarily concerned with protecting the fish on which such industries depend.

For the first time, fishery managers were required to end overfishing, even if doing so caused short-term economic harm. For the first time, overfished stocks had to be rebuilt within a time certain; if biologically feasible, such rebuilding time could not exceed ten years.

Thanks to such mandates, the United States’ depleted fish stocks began to rebuild. According to the National Marine Fisheries Service (NMFS), 47 once-overfished stocks have been rebuilt since 2020. NMFS believes that, out of 460 managed stocks and stock complexes, only 49 remain overfished and 26 are subject to overfishing, although the status of some managed stocks remains unknown.

Despite such success, Magnuson-Stevens is frequently criticized. Dr. Brian Rothschild, a biologist sympathetic to the commercial fishing sector, has argued that federal regulators have taken an “unnecessarily hard-line, inflexible approach” to the law’s provisions, “that wastes fisheries resources, minimizes landings, and kills jobs.”

However, most criticism of Magnuson-Stevens comes from the recreational fishing industry. In 2009, commercial and recreational fishermen staged a rally at the Capitol Building in Washington, hoping to convince Congress to weaken the law. Jim Hutchinson Jr., then the managing director of the Recreational Fishing Alliance, an “anglers rights” group, claimed that “This is a much bigger issue than any one state issue or individual grievance. Whether it’s our restrictive fluke fishery in New York, the arbitrary closure of state waters for our anglers in California or the shutdown of red snapper and amberjack down South, our community has been divided by preservationist tactics for too long. It’s time to unite the claims in defense of our coastal heritage and traditions.”

That effort failed, but the recreational fishing industry continued its efforts to undercut the law.

In 2014, a coalition of industry-affiliated organizations released “A Vision for Managing America’s Saltwater Recreational Fisheries,” a document which argued that,

While the Magnuson-Stevens Act has produced a demonstrable improvement in fish stocks, we now need to manage that success in a way that fully develops saltwater recreational fishing’s economic, social and conservation benefits to our nation…The NMFS should manage recreational fisheries based on long-term harvest rates, not strictly on poundage-based quotas. This strategy has been successfully used by fisheries managers in the Atlantic striped bass fishery, which is the most sought-after recreational fishery in the nation. By managing the recreational sector based on harvest rate as opposed to a poundage-based quota, managers have been able to provide predictability in regulations while also sustaining a healthy population.

Events later demonstrated that the Atlantic States Marine Fisheries Commission’s (ASMFC) use of “soft” management targets, rather than hard-poundage quotas, didn’t work quite as well as the fishing industry groups claimed; a benchmark stock assessment released in 2019 revealed that such management had allowed the once-thriving striped bass stock to become overfished, and that such stock was also experiencing overfishing.

Nevertheless, the industry pressed forward, convincing Rep. Garret Graves (R-LA) and Sen. Roger Wicker (R-MS) to sponsor the Modernizing Recreational Fishery Management Act, which in its initial version would have largely relieved the recreational sector of the burdens of science-based fisheries management, and allowed federal managers to adopt the same ineffective management approaches that failed the striped bass.

Although such legislation was signed into law late in 2018, the version that made it through Congress left the key conservation provision of Magnuson-Stevens intact, and merely gave regional fishery management councils “the authority to use fishery management measures in a recreational fishery (or the recreational component of a mixed-use fishery) in developing a fishery management plan, plan amendment, or proposed regulation, such as extraction rates, fishing mortality targets, harvest control rules, or traditional or cultural practices of native communities in such fishery or fishery component.”

Based on such language, six of the same organizations submitted a letter to the Mid-Atlantic Fishery Management Council, which requested that such council replace the current hard-poundage catch limits for the recreational fishery with a “control rule” that held anglers to less rigid landings targets. In response to such letter, and to follow-up conversations, the council and the ASMFC developed a “harvest control rule” that, if adopted, will radically change how the recreational summer flounder, scup, black sea bass, and bluefish fisheries are managed.

Depending on the form that such harvest control rule takes, it could largely or completely divorce recreational management measures from both the annual catch limit and the recreational fishery’s actual landings. Whether such control rule would comply with the legal standards established in Magnuson-Stevens remains a debatable issue.

Yet, as fishermen in the United States, and some NMFS employees, seek to move away from Magnuson-Stevens’ demonstrably successful management standards, other nations have been moving their management standards closer to those of Magnuson-Stevens.

The European Union (EU) adopted a common fisheries policy, which became effective on January 1, 2014. Although less prescriptive than Magnuson-Stevens, at least with respect to conservation issues, the policy sought to end overfishing and limit harvest to the maximum sustainable yield for each managed stock by 2020. Rules established pursuant to the policy require that a total allowable catch (TAC) for most managed stocks be established each year, although for certain deep-water species, such TAC need be set every two years. According to the EU, each member nation is “responsible for assuring that the quotas are not exceeded. When an EU country’s available quota for a species is exhausted, it must close the fishery.”

While critics note that the common fisheries policy has, in practice, been irregularly applied, and that many stocks are still experiencing overfishing, The Pew Charitable Trusts observed that “decision-makers have continued to bring fishing pressure overall closer to scientific advice, and fish populations have responded to these improvements, on average growing in size. This growth, in turn, has helped to bolster fishing industry profits, with the Commission’s data showing average profitability close to all-time highs.”

Thus, although the EU still hasn’t realized the level of success achieved by the United States subsequent to passage of the SFA, adoption of science-based management measures in many of its fisheries has it moving in the right direction. Important European fish stocks, and European fishermen, are benefitting from the new management approach.

Canada took longer to adopt such science-based measures, but once it did, they were more rigorously applied.

Canada’s requirements for conservative, science-based management aren’t found in that nation’s Fisheries Act, but in rebuilding regulations that were only published on April 4, 2022. Such regulations provide that any rebuilding plan required by the Fisheries Act include, among other things, “measurable objectives aimed at rebuilding the stock, including a target for rebuilding the stock; the timelines for achieving the objectives;…a method to track progress toward achieving the objectives; and a schedule for periodic review of the plan in order to assess progress in achieving the objectives and to determine whether an adjustment to the plan is needed. [internal numbering and formatting omitted]”

The rebuilding regulations, like Magnuson-Stevens, require that a rebuilding plan be completed within two years although, unlike United States law, the Canadian regulations allow that time period to be extended by as much as 12 months if such extension is justified, in writing, by the Minister of Fisheries.

The regulatory impact analysis statement that accompanies the rebuilding regulation notes that “a number of commercially significant marine fish stocks in Canada are at low levels. Others are at risk of decline…Preventing their decline by managing them sustainably will preserve important ecosystem functions and improve economic outcomes for the fish and seafood sector.”

It also refers to another policy document, “A fishery decision-making framework incorporating the precautionary approach” (Precautionary Approach), which incorporates many of the principles found in Magnuson-Stevens, including reference points that denote a healthy and an overfished stock (respectively deemed the Upper Stock Reference Point and the Limit Reference Point), the need to consider uncertainty when calculating such reference points, and aggressively rebuilding stocks which have fallen below the Limit Reference Point, and are in the so-called “critical zone.”

Pursuant to the Precautionary Approach, when a stock is “In the critical zone, management action must promote stock growth and removals from all sources must be kept to the lowest possible level until the stock has cleared this zone. There should be no tolerance for preventable decline. When a stock has reached the critical zone, a rebuilding plan must be in place with the aim of having a high probability of the stock growing out of the critical zone within a reasonable timeframe.”

Such requirements are arguably even more stringent than those imposed by Magnuson-Stevens; the mandate that “removals from all sources must be kept to the lowest possible level” led to Canada’s recent decisions to completely shut down fisheries for Atlantic herring and Atlantic mackerel, and reduce landings of Pacific herring.

Other nations, including Canada and the member states of the EU, are beginning to understand that it is impossible to maintain healthy fisheries in the long term without maintaining equally healthy fish populations; to better ensure the health of fish stocks, they are adopting some of the same precautionary, science-based management principles that are found in Magnuson-Stevens.

It is thus both ironic and dismaying that, just as foreign jurisdictions are beginning to adopt fishery management approaches that more closely resemble those that the United States embraced twenty years, some U.S. fishermen, legislators, and fishery managers are seeking to undermine Magnuson-Stevens, so that federal fishery managers may adopt the sort of shortsighted fishery management measures that have already failed elsewhere.

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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