Photo: Tautog

I’ve often been a critic of the Atlantic States Marine Fisheries Commission (ASMFC).

I don’t criticize the interstate compact that created the ASMFC, nor do I have any bad words for the Atlantic Coastal Fisheries Cooperative Management Act, which gave the ASMFC the authority to bind East Coast states to its interstate fishery management plans. Such interstate coordination is essential to the effective management of migratory fish populations.

And you will never hear me criticize the ASMFC’s staff, as they are a group of dedicated professionals who do their very best to assure that coastal fish stocks are properly managed.

Instead, my criticism is focused on an overly flexible ASMFC process, which includes no legally binding standards that compel fishery managers to end overfishing or rebuild overfished stocks in anything like a timely manner. Such an excessively lenient process has too often led ASMFC commissioners, who sit on the various species management boards, to follow the least controversial and most politically expedient path and adopt management measures based on short-term socioeconomic concerns, rather than the long-term health of fish stocks.

Thus, at a time when the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) prohibits the adoption of any federal fishery management plan that permits overfishing, and requires most overfished stocks to be rebuilt within ten years, the more permissive ASMFC process allowed its Tautog Management Board to dither for 21 years before taking any meaningful measures to bring overfishing under control. And even when it finally adopted a more effective amendment to its tautog management plan, the ASMFC agreed to let fishermen continue to overfish tautog in Long Island Sound until 2029. The commission has established no rebuilding deadlines for that species at all.

Even when the ASMFC formally adopts a fishery management plan, it isn’t legally bound to adhere to its provisions. For example, Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass contains five “management triggers” that supposedly require the initiation of management action if any of them are tripped.

One of those triggers requires that “If the Management Board determines that the fishing mortality target is exceeded in two consecutive years and the female spawning stock biomass falls below the target within either of those years, the Management Board must adjust the striped bass management program to reduce the fishing mortality rate to a level that is at or below the target within one year.”

Another trigger requires that “If the Management Board determines that the female spawning stock biomass falls below the target for two consecutive years and the fishing mortality rate exceeds the target in either of those years, the Management Board must adjust the striped bass management program to rebuild the biomass to a level that is at or above the target within [ten years].”

The benchmark stock assessment that was completed in 2013 indicated that both of those triggers had been tripped. Yet, when Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan was drafted, it focused only on the need to reduce the fishing mortality rate. The other management trigger, which required the Management Board to rebuild the female spawning stock biomass, was completely ignored.

Concerned citizens have little recourse when an ASMFC species management board chooses to ignore an explicit provision of its own fishery management plan, or when such board decides to permit overfishing or fails to rebuild an overfished stock. In 2010, a federal appellate court decided State of New York v. Atlantic States Marine Fisheries Commission , and found that the ASMFC’s decisions were not subject to judicial review pursuant to the Administrative Procedures Act. That decision made it easy for ASMFC to avoid making the hard and often politically unpopular decisions that are often necessary to conserve and rebuild fish stocks.

Thus, while federal fishery managers have rebuilt 45 once-overfished stocks since this century began, and have reached a point where 87 percent of all federally managed stocks are not overfished, and 91 percent are not subject to overfishing, ASMFC has a much poorer record. It has failed to rebuild a single fish stock since the year 2000. Fewer than 40 percent of its managed stocks are considered “recovered/sustainable,” while nearly 30 percent remain “depleted”—that is, overfished—and another 17 percent are of “concern.”

But there are signs that some ASMFC commissioners are growing uncomfortable with the commission’s lackluster record. ASMFC surveys its commissioners on a regular basis in order to solicit their views on ASMFC’s performance, problems and opportunities. A survey released in 2016 already reflected some commissioners’ unease.

In response to the question, “What is the single biggest obstacle to the Commission’s success?” such commissioners responded with comments such as, “Once a species is depleted and overfishing is no longer indicated, the Commission has had little to no success in re-building depleted stocks,” “Incomplete information about stocks coupled with reluctance to make tough decisions without high level of certainty,” and “We sometimes don’t have a good grip on the long-term socioeconomic aspects of good management, and that a little pain now can yield good fruit in the long run.”

Similar comments were repeated in 2017, when various commissioners complained, “There seems to be less concern for the biological needs of the stocks, and more concerns, among the states, with economic gains from the stocks within the last decade,” “As soon as a fishery shows signs of improvement the commercial interests immediately want amendments and motions to harvest a greater portion of the stock,” and “Management measures need to be measurable and achievable. Too often we do things that look good on paper but don’t meet the necessary conservation requirements.”

This year, such sentiments made it into a “Strategic Planning Workshop” held during ASMFC’s Annual Meeting. One Rhode Island commissioner attending the workshop said that, in his view, the management boards have “too much flexibility” and needed some boundaries. Another, from North Carolina, said that management board decisions needed to be based on science, noting that if decisions were science-based, he could defend them far better than he could defend decisions based on other factors.

Such concerns were also reflected in a document prepared by a Strategic Planning Workgroup ahead of the meeting, which included “Two additional observations made by the Workgroup: Focusing only on short-term gains creates long-term problems; and without improved state cooperation there is the potential for Magnuson National Standards to be applied to the Atlantic Coastal Act.” The latter was clearly a reference to New Jersey’s 2017 decision to reject the summer flounder conservation measures adopted by all of the other members of the Summer Flounder, Scup and Black Sea Bass Management Board, and to seek the Secretary of Commerce’s approval of less restrictive fishing measures, a decision which caused significant harm to the cooperative fishery management process.

The fallout from New Jersey’s action, and its impact on other fisheries issues, particularly those related to Atlantic menhaden, poses such a significant threat to the viability of ASMFC’s interstate management program that the Strategic Planning Workgroup even suggested changing the commission’s vision statement from “Sustainably Managing Atlantic Coast Fisheries” to “Cooperatively Managing Atlantic Coast Fisheries,” to emphasize the need for states to work together, instead of elevating their own parochial interests.

Although the suggested change wasn’t meant to discount the need for sustainable management, it was still gratifying to see the reaction of the commissioners at the meeting; everyone who spoke on the issue was opposed to removing “sustainably” from the vision, with one commissioner noting that without the goal of sustainability, fisheries could be managed all the way to extinction. All agreed that ASMFC’s vision should reflect the fact that cooperation and sustainability were not mutually exclusive concepts, and that both had a role to play in the successful management of Atlantic Coast fisheries.

Such comments are encouraging, but even when taken as a whole, they don’t necessarily foretell a sea change at ASMFC.

There are still commissioners who oppose science-based catch limits and complain about an alleged “Failure to manage stocks of black sea bass and summer flounder for harvest by public, causing huge negative economic and quality of life issues,” or who decry “MRIP uncertainties and the binding of ASMFC to federal law and national standards guidelines drastically reducing ASMFC flexibility and the influence of individual state perspectives.”

If such commissioners have the last word, the day may come when ASMFC’s fishery management plans are made subject to the national standards set forth in Magnuson-Stevens, in order to ensure that the commission will end overfishing and rebuild depleted stocks.

On the other hand, if ASMFC heeds the more responsible voices that are now being heard, voices that call for improving, and not discarding, the current process, so that fishery management plans are based on solid science and the long-term health of fish stocks, and not on states’ short-term economic and political concerns, ASMFC can succeed without any change in the law.

But before it can succeed, ASMFC commissioners need to acknowledge the fact that healthy recreational and commercial fisheries require healthy and fully recovered fish stocks. Some commissioners already have. It is long past time for the remaining commissioners to do the same.