Bluefish photo by John McMurray

The relationship between the Mid-Atlantic Fishery Management Council (Council) and overfishing goes back a long way. In 1999, the Council adopted a summer flounder quota that had just an 18 percent probability of preventing overfishing, an action that led to the landmark court decision in Natural Resources Defense Council v. Daley, which established the principal that, to pass legal muster, a fishery management measure must have at least a 50 percent probability of achieving its conservation goals.

Immediately after the court handed down that decision, the Council divorced itself from any management measure that might condone overfishing, and spent nearly two decades successfully rebuilding and conserving once-overfished stocks. At one point in the early 2010s, it was the only one of the eight regional fishery management councils that had completely ended overfishing, and didn’t preside over any overfished stocks.

Yet, overfishing remained seductive. The Atlantic States Marine Fisheries Commission, which manages some fish stocks in conjunction with the Council, has long been under its spell, and many recreational and commercial fishermen have also fallen for its charms. All have been willing to ignore the long-term consequences that inevitably flow from a few reckless years of excess. Only the Council, chaperoned by the marine conservation community and scrutinized by the courts, resisted overfishing’s blandishments in recent decades.

And yet, the Council was never free from overfishing’s temptations. And when temptation hovers charmingly within reach, it’s hard not to give in.

Thus, the Council dallies with a “control rule” approach to recreational fisheries management, which would set management measures for overfished stocks at “the most restrictive measures which could be tolerated without major loss of businesses such as bait and tackle shops and party/charter businesses,” without regard to whether such measures would permit overfishing or prevent the rebuilding of overfished stocks.

Council staff has acknowledged that key aspects of the proposed control rule approach are “not feasible,” given the standards for conservation and management imposed by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). Staff also admits that the remaining aspects of the proposal “are conceptual…and have not been fully developed or analyzed.” Yet many Council members remain infatuated with the idea, and have refused to leave it behind.

But the Council’s faithfulness to the principles of Magnuson-Stevens was far more sorely tested when it set recreational harvest limits for the 2020 and 2021 seasons; its first serious fling with possible overfishing occurred at its December 2019 meeting, when it addressed recreational management measures for black sea bass.

At that meeting, Council members were confronted by a 2019 operational stock assessment (operational assessment) which, based on updated recreational catch, landings, and effort data, revealed that recreational landings were much higher than previously believed. It also revealed that the black sea bass spawning stock biomass was considerably larger than managers had realized, which would allow managers to substantially increase the recreational harvest limit (RHL). But the increased RHL was not large enough to completely offset the revised recreational landings estimates.

After evaluating all of the new information, Council staff recommended that the Council, along with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board (Sea Bass Board), adopt regulations that would reduce recreational landings by 20%, in order to keep such landings at or below the 2020 RHL.

The Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee (Sea Bass Monitoring Committee) disagreed. It recommended that 2019 regulations carry over, unchanged, into the 2020 season, even though doing so would probably cause anglers to exceed the RHL by 26 percent and the recreational annual catch limit (ACL) by 23 percent. Maintaining status quo regulations in 2020 was also likely to cause the combined recreational and commercial landings to exceed the acceptable biological catch (ABC), set by the Council’s Scientific and Statistical Committee (SSC), by 12 percent.

However, such combined landings were expected to fall about 13 percent below the overfishing limit (OFL), so no overfishing was expected to occur.

Still, avoiding overfishing was far from guaranteed. Scientists can easily adopt an OFL that is too high and allows overfishing to occur, simply because they don’t understand every factor that might affect the health of a fish stock. Such incomplete understanding is deemed “scientific uncertainty,” and is addressed in guidelines published by the National Marine Fisheries Service (NMFS), which state that “Acceptable biological catch (ABC) is a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of OFL, any other scientific uncertainty, and the Council’s risk policy.”

ABCs are an important part of the management process. If no ABC was established, and the ACL was set at or near the OFL, there would be a real risk that overfishing would occur, simply because managers didn’t account for the scientific uncertainty that exists even in the most-studied fisheries. Thus, Magnuson-Stevens prohibits a regional fishery management council from setting an ACL that would “exceed the fishing level recommendations of its scientific and statistical committee,” a mandate echoed in the NMFS’ guidelines, which provide that “Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC…”

Yet, despite the risk that overfishing might occur, and the seeming prohibition, in both Magnuson-Stevens and NMFS’ published guidelines, on maintaining an ACL that exceeds the ABC, both the Council and Sea Bass Board approved status quo black sea bass regulations for 2020.

Then, early in 2020, the COVID-19 pandemic struck the United States. As part of the effort to control the virus, NMFS suspended the Northeast Fisheries Science Center trawl surveys, which are used to determine the health of fish stocks. Complimentary state surveys, which sample fish in inshore waters, were also suspended or postponed. Scientific uncertainty increased as a result.

At the same time, state restrictions led to a temporary suspension of the angler intercepts that form the basis of recreational catch and landings estimates. As noted in a 2020 Sea Bass Monitoring Committee report,

Those changes caused another sort of uncertainty—management uncertainty—to rise to unprecedented levels. According to the NMFS guidelines, “Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting; misreporting; underreporting of catches; lack of sufficient inseason management, including season closure authority; or other factors.”

The guidelines also suggest how regional fishery management councils should address management uncertainty. “[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that ACL is not exceeded. An [annual catch target] is an annual amount of catch of a stock or stock complex that is the management target of the fishery, and accounts for management uncertainty in controlling the catch at or below the ACL.”

The guidelines further advise that “If an Annual Catch Target (ACT), or a functional equivalent, is not used, management uncertainty should be accounted for in the ACL.”

The Council lacked reliable recreational catch and landings data for 2020, and so couldn’t know whether existing regulations had kept recreational landings below the RHL, or whether overfishing might have occurred in one or more stocks. Yet the Council failed to account for such management uncertainty in any recreational fishery.

It set no annual catch targets that might buffer against management uncertainty’s effects. Instead, it maintained status quo.

That might work out for summer flounder. The RHL was scheduled to increase in 2021, so maintaining status quo rules provided a buffer of sorts. It might also work out for scup, as commercial landings typically fall well below quota and offset recreational overages.

But by maintaining status quo management measures for black sea bass and bluefish, the Council may have opened the door to overfishing one or both stocks.

The operational assessment projected that, in 2020, the black sea bass spawning stock biomass would be 22,699 metric tons; it also projected that such spawning stock biomass would fall to 20,379 metric tons in 2021–about a 10 percent decline. If the Sea Bass Monitoring Committee determined that, in 2020, overall landings would fall just 13 percent below the OFL, might status quo management measures cause landings to exceed the OFL in 2021, when the spawning stock biomass was 10 percent smaller?

The Sea Bass Monitoring Committee chose not to say.

But status quo regulations would leave no margin for error, despite the acknowledged scientific uncertainty, and the far greater, but unacknowledged, management uncertainty regarding the stock.

Emerson Hasbrouk, a Sea Bass Board member from New York, expressed concern about overfishing in 2021, particularly if commercial fishermen land their full quota, something that, because of COVID-19, did not occur in 2020. He admitted that he was “really concerned about where we’re headed here.”

Another Sea Bass Board member, Eric Reid of Rhode Island, was more vehement, saying, “To look the other way because we have no data…four or five years of [anglers] going over [the RHL], saying this is temporary…that isn’t right.”

But no one on the Council seemed too concerned. Not a single Council member voted against the status quo.

The Sea Bass Monitoring Committee justified its status quo recommendation by saying, in part, that the “Council/[Sea Bass] Board wished to avoid further restricting [recreational] fishery during [MRIP] transition period considering biomass is so high.” The same argument could not be made for status quo bluefish management, as bluefish were already overfished.

The problem with bluefish management, as with black sea bass, dates back to 2019, when the Council and the Atlantic States Marine Fisheries Commission’s Bluefish Management Board (Bluefish Board) rejected the Bluefish Monitoring Committee’s recommendation to base projected 2019 landings (and so 2020 regulations) on an average of landings in the three previous years.

Using such three-year average would have resulted in a 2020 bluefish RHL of 3.62 million pounds, a stark drop from 2019’s 11.62 million pound RHL, and would have led to very restrictive recreational management measures. To avoid such result, both the Council and the Bluefish Board voted to base 2020 regulations just on the 2018 landings, which were the lowest in a time series that dated back to 1985. That allowed them to set a 2020 RHL of 9.48 million pounds, and adopt far less restrictive management measures than they would have adopted otherwise.

2019 recreational bluefish landings ended up to be about 2.3 million pounds, or about 17 percent, higher than they were in 2018, meaning that 2020 management measures, based on an unrealistically low projection of 2019 landings, probably caused anglers to exceed the RHL, perhaps by a significant amount.

Because there is no landings data, no one knows for sure; management uncertainty has completely obscured the path forward.

In the face of such uncertainty, and despite the fact that the bluefish stock was overfished, the Council’s Bluefish Monitoring Committee still recommended status quo rules for 2021. But, perhaps harboring doubts about that recommendation, it also noted that

To project recreational landings, the [Monitoring Committee] typically uses the most recent 3-year average of landings. The 2017-2019 average landings (20.30 M lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 M lbs. This landings projection methodology indicates a potential 73.86% overage of the 2021 RHL of 8.34 M lbs…these analyses indicate a potential range of 2021 landings projection estimates that should be reviewed by the Council and Board. [emphasis added]

But neither the Council nor the Bluefish Board chose to review or debate the landings projections. Instead, without any meaningful discussion, both bodies voted, by overwhelming margins, to adhere to the status quo.

Magnuson-Stevens includes 10 National Standards for Fishery Conservation and Management. First among those is the requirement that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. [emphasis added]”

Yet, before casting their votes, not a single Council member asked whether status quo rules, whether for black sea bass or bluefish, met that basic legal requirement.

Somebody ought to start asking such questions soon. Unless they do, the Council’s recent flirtation with overfishing could bloom into a full-fledged affair.