Photograph by Capt. John McMurray
The law by which marine fish are managed in federal waters angers those commercial and recreational fishermen who want dead fish in the box now, and whose future vision terminates at week’s end.
The twice-reauthorized, twice-amended Magnuson-Stevens Fishery Conservation and Management Act turns 40 on April 13. But it only started to work in 1996, and it only started to work well in 2007. Now that Magnuson is past due for a third reauthorization, Congress seems bent on gutting it.
First, some background: Magnuson’s enactment in 1976 gave the US exclusive jurisdiction over fisheries within 200 miles of shore, and set up eight regional management councils comprised of “user groups” charged with developing management plans to be approved by the National Marine Fisheries Service (NMFS). In addition, the law resuscitated the moribund US fishing fleet with lavish infusions of tax dollars. The idea was to limit unsustainable fishing by foreign vessels and to give America’s commercial fishermen, who dominated the councils, a better shot at the resource along with “a stake in their own future.” Those requiring regulation would do the regulating.
Seven years later the US fleet had doubled in size and at least quadrupled in efficiency. Unsustainable fishing by foreigners was replaced by unsustainable fishing by Americans.
Gradually it dawned on US lawmakers that when it comes to exploiting natural resources for profit, self-regulation doesn’t work. Whenever a stock is overfished a rabble of commercial fishermen, party-boat owners, charter-boat owners and fillet-and-release anglers proclaim that the science is wrong, that there are really “lots” of fish where professional fisheries biologists using state-of-the-art survey methods find few.
So in 1996 Congress strengthened Magnuson by defining overfishing, prohibiting the councils and NMFS from setting quotas above maximum sustainable yield and requiring managers to rebuild stocks as quickly as possible.
The strengthened law worked, but not as well as NMFS alleged. In 1998 NMFS reported to Congress that 102 of 152 managed species were overfished. Eight years later NMFS reported that only 35 managed species were overfished; but this didn’t take into account 16 overfished shark species thrown into a single category called “status unknown,” and 10 stocks of Pacific salmon that had gone unfished because they’d been given Endangered Species Act protection. A 2006 analysis by the Marine Fish Conservation Network (a coalition of about 200 commercial and recreational fishing associations, regional and national conservation groups, aquaria, and marine science organizations) revealed that 75 percent of the reduction in overfished stocks resulted from administrative shuffling.
Loopholes in Magnuson’s language allowed overfishing to continue. Conducting business as usual, the Mid-Atlantic Council hatched and NMFS approved a summer flounder plan that had an 18% chance of success, thereby eliciting a lawsuit by the Natural Resources Defense Council. On April 25, 2000 the United States Court of Appeals for the District of Columbia reversed a lower court decision and directed NMFS to fix the plan. The court observed that “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the Service reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence.’”
And in New England the regional council circumvented conservation, substituting sham management, such as gear restrictions and days-at-sea limits, for hard quotas that could have recovered species like cod, ocean pout, wolffish, yellowtail flounder and winter flounder.
So late in 2006 Congress again strengthened Magnuson. For the first time the councils were required to establish annual catch limits—i.e., poundage quotas (enforceable by penalties) for all managed stocks, thus ending sham management. What’s more, catch limits had to be set by scientists on special council committees rather than the councils themselves. The 2006 amendments established a trust fund for things like improving fishery data and expanding observer coverage; and they restricted use of destructive fishing gear in deep-sea coral habitat.
Results have been stunning. Since the 1996 and 2006 amendments, councils and NMFS have rebuilt 37 depleted fish populations. And the number of overfished populations has declined by almost two-thirds. Fish like red snapper, summer flounder, scup, black sea bass, haddock, snowy grouper, gag grouper, tilefish, jacks and mackerels all have a bright future thanks to the strengthened Magnuson Act. Since 2007, revenue of commercial fishermen has increased 43%.
Charles Witek, former chair of the Coastal Conservation Association’s Atlantic States Committee and former member of the Mid-Atlantic Fishery Management Council, offers this in his column for the Marine Fish Conservation Network: “Here in the Mid-Atlantic, the sea bottom was desolate. Summer flounder, which had long been the backbone of our recreational and commercial fisheries, were not abundant. The minimum size was a mere 14 inches, fish so small and thin that it was hard to fillet the less-meaty white side. Black sea bass were mostly sub-10-inch ‘pins,’ while the scup, when you could find them, were scarcely as large as a man’s outstretched hand. All three stocks needed rebuilding, something that, save for the Magnuson-Stevens Fishery Conservation and Management Act, would have never occurred . . . . Today, anglers frequently catch summer flounder so large that any one fillet (you get four from each fish) is longer and heavier than entire fish that were [formerly] deemed to be legal . . . . Black sea bass and scup are doing equally well. Anglers are now seeing unprecedented numbers of them, and the fish are not small. On my first sea bass trip last season, it took me longer to run out to the wreck where I fished than it did to limit out with eight quality sea bass. Scup are even more abundant, with so many available that neither the commercial nor the recreational sector can land their entire quota.”
Magnuson is far from a perfect law, but its failures are more attributable to its application than its mandates. In New England, where managers perceive it as an impediment, it has had limited success. For example, the 2014 cod population of Georges Bank—an 8,050-square-mile area of elevated sea floor off Massachusetts, Maine and southern Canada—was about one percent of the biomass target (what scientists consider a healthy population), down from 7% in 2011. Meanwhile cod are being killed there at 10 times the sustainable level.
Magnuson has worked best in the Pacific, North Pacific and Mid-Atlantic, where managers follow the spirit as well as the letter of the law. In the Mid-Atlantic every depleted stock has been rebuilt. And this from Mid-Atlantic Council member Capt. John McMurray, a respected fish-conservation writer and light-tackle guide: “My feeling is that Magnuson has added so many levels of precaution that, if the councils act in accordance with its intent, it’s hard to get in trouble again. Magnuson has worked well for the average fisherman because there are more fish around. Where it hasn’t worked well is for guys who make money by killing lots of fish; they’re the ones who want to go back to the days where overfishing was the norm.”
Because Magnuson inconveniences this latter group, Rep. Don Young (R-AK) introduced a reauthorization bill with the Orwellian name “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.” On June 1, 2015 the House passed it by a vote largely along party lines—225-152. Basically, it’s an iteration of the slightly worse (if possible) “Empty Oceans Bill” introduced in the 113th Congress by now retired Rep. Doc Hastings (R-WA).
“Instead of working with us to craft thoughtful, targeted legislation to update Magnuson, Republicans have taken this as an opportunity to assault bedrock conservation laws while at the same time taking us back to fisheries management policies that we have known have failed fishing communities in the past,” declared Arizona Congressman Raul Grijalva, top Democrat on the House Natural Resources Committee.
Like Hastings’ failed Empty Oceans Bill, Young’s version would extract Magnuson’s teeth, returning fish management to the eat-everything-you-want diet commercial and recreational fishermen prescribed for themselves from 1976 to 1996. Managers would be freed of the burden of ending overfishing and rebuilding depleted stocks in reasonable timeframes. Fishermen would be freed of the burden of hard quotas. And the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the National Marine Sanctuaries Act would be dispensed with in favor of council oversight.
Ironically, Young represents a state that manages its fisheries well and whose commercial and recreational fishermen tend to be enlightened stewards. Stosh Anderson, a commercial salmon fisherman from Kodiak and former North Pacific Fishery Management Council member, correctly notes that Young’s bill would “gut” Magnuson. “We know that allowing catch limits above scientifically sustainable levels may result in short-term economic gains, but in the long term it’s bad for communities, fishermen and processors,” he observes. “Sustainable fisheries management is a pillar of Alaska’s management system and our constitution. Lowering the bar on federal fisheries management requirements could not only threaten our fish stocks but put at risk the reputation for sustainable management in which Alaska has invested significant resources and marketing dollars.”
According to Dr. Andrew Rosenberg, director for science and democracy at the Union of Concerned Scientists, Young’s bill would be a retreat from the “strong standards that are in the law that the councils have had to meet—and, frankly, have resulted in our ending overfishing.” And he notes that tossing out the ESA, NEPA and the National Marine Sanctuaries Act would be a “really dangerous thing to do, because you can imagine that many other industries—energy industry, shipping industry, coastal development—would all say, ‘Well, gee, if the fisheries management councils could do this, then we don’t really need to be subject to these rules either.’”
Here’s why laws like NEPA are important. NMFS’s refusal to insist that important forage fish—alewives, blueback herring, American shad and hickory shad—be included in the Mid-Atlantic Fishery Management Council’s Atlantic mackerel, squid and butterfish plan, and NMFS’s failure to require 100% observer coverage on vessels targeting these species brought a lawsuit by the Anglers Conservation Network. The US Court for the District of Columbia found that the agency had a perfect right not to include these fish in the plan and that it had a perfect right not to require 100% observer coverage. But the Network won a third challenge. On October 5, 2015 the court ruled that NMFS violated NEPA “by failing to take a ‘hard look’ at the environmental impacts of its definition of the fishery, by failing to analyze the reasonable alternative of examining the environmental impact of not adding the river herring and shad to the fishery, and by failing to consider the direct, indirect, and cumulative impacts of its decision in the accompanying [Environmental Impact Statement].”
Leading the charge for Young’s bill is the Center for Coastal Conservation. It is followed by the Coastal Conservation Association (CCA), American Sportfishing Association, Congressional Sportsmen’s Foundation, International Game Fish Association, National Marine Manufacturers Association, The Billfish Foundation, Theodore Roosevelt Conservation Partnership (TRCP), Guy Harvey Ocean Foundation and, predictably, the Recreational Fishing Alliance (an industry front that describes Magnuson as the dirty work of “anti-fishing environmental groups” who serve “Kool-Aid” to gullible anglers).
Three of these organizations—TRCP, Billfish Foundation and Guy Harvey Ocean Foundation—are legitimate conservation outfits that do superb work, so I was astonished to see them throw in with the more-dead-fish-for-me crowd. I am especially close to TRCP—one of the very few green NGOs that declines to fundraise by trashing anti-environmental Republicans. As a result, those politicians grant audiences to the group and are sometimes dissuaded from hurtful initiatives. What TRCP does best is promote productive dialogue and forge alliances among parties that may disagree on most everything save love of fish and wildlife. That, apparently, was part of its motivation here.
CEO Whit Fosburgh told me this: “One, everyone knows that bill’s not passing. The real action will be in the Senate, and we think the final legislation will be a lot better. Two, the bill is much better than when it was last introduced [by Hastings], though it’s still pretty crappy. Three, this is the first bill that treats recreational fisheries differently than commercial; we wanted to recognize that. Magnuson just doesn’t work well for recreational. It’s good for cutting overfishing on the commercial side. It does a great job for restoring stocks. But it’s using a commercial paradigm to manage a recreational interest, which has totally different goals. We want to be inefficient whereas the commercial guys want to kill right up to the edge.”
None of that strikes me as a reason to promote Young’s bill, but I can agree with Whit on the following: One, it’s a crappy bill; two, it’s better than Hastings’ Empty Oceans Bill (that version was God awful; Young’s is merely awful); and three, Magnuson “doesn’t work well for recreational.”
Agreeing with both of us on these three points is former NMFS director Dr. William Hogarth, who currently runs the Florida Institute of Oceanography at the University of South Florida. “The Young bill would take us backwards,” he told me. “I think Magnuson has worked. The stocks are in better shape than they’ve been in a long time. The fish are larger, so the quotas [by poundage] are taken much quicker. That means the seasons are shorter, which nobody likes. I think one of the mistakes we make is trying to manage recreational by quotas. When we redid Magnuson I don’t think we gave enough attention to recreation. It is much more difficult to count the fish anglers catch. We give commercial fishermen a quota and let them go off and stay within that quota. But with anglers I think we have to look at a different way of managing. There are alternatives to quotas like slot limits, bag limits, size limits, seasons, circle hooks, catch-and-release. We haven’t learned anything from deer and turkey hunting or largemouth bass fishing, which are huge in this country. When you try to apply land- and freshwater-type controls in saltwater it’s like you’re taking a person’s child away.”
Magnuson’s failure to give anglers an equitable share of the red snapper catch in the south Atlantic and Gulf has turned formerly enlightened conservation groups like CCA to the dark side. In addition to supporting Young’s bill, which would deprive them and everyone else of most fish species, they are pushing state management of red snapper.
In federal waters the red snapper season is short, bag limits small. But the states are out of compliance with NMFS; they have long seasons and big bag limits. Fish caught in state waters count against overall quotas, so CCA and allies say, “The feds are screwing us.”
“The solution,” submits Charles Witek (who quit CCA when its mission devolved from conservation to dead fish on the dock), “is for NMFS to bring states into compliance with Magnuson’s federal preemption language and tell them: ‘You’re having a negative effect on the resource so we’re taking over management.’ But that’s a political impossibility because once you take this nuclear option it will get written out in the next reauthorization.”
To understand where state management has gotten us (and where legislation like Young’s bill would get us) consider the record of the Atlantic States Marine Fisheries Commission. Conservation is the last thing on its mind. It is under no mandate to prevent overfishing, and it doesn’t. It has done badly with striped bass and failed spectacularly with menhaden, American shad, tautog, winter flounder and weakfish.
Lee Crockett, who directs Pew’s US fish policy, suggests another Magnuson fix. “Now,” he says, “anyone can start a new fishery; then the councils and NMFS decide if it needs conservation and management. That usually means a problem because you’ve got capital invested and a whole industry built up. We’re advocating a change in the burden of proof so that before you start a fishery you’ve got to go out and study potential impacts, then set up management to minimize those impacts. The fishery should be sustainable from the beginning so you’re not playing catchup.”
Finally, Magnuson reauthorization needs to move away from single-species management to managing marine ecosystems. Forage fish, for example, require special treatment. They shouldn’t be managed just at levels that sustain stocks exploited by humans, but also at levels that sustain the predators that depend on them.
Fly fishers tend to think of forage fish only as species like herring, menhaden, butterfish, sand eels, anchovies, sardines, silversides, mullet, pilchards, glass minnows, halfbeaks, etc. But many fly fishers, especially those who release fish, would be surprised to learn that the stomachs of species they target such as striped bass, bluefish, weakfish, spotted seatrout and redfish, are often stuffed with species rebuilt by Magnuson, most notably scup, summer flounder and black sea bass. Moreover, when smaller forage species aren’t available, predators like sharks, tunas, billfish, seals and dolphin turn to gamefish. As naturalist-philosopher John Muir observed, “When one tugs on a single thing in nature, he finds it attached to the rest of the world.”
Magnuson should be made to work better. But now that it’s finally working well, the first order of business for marine advocates, including recreational and commercial fishermen with intelligence and vision, is to save it from vandals who display the restraint of herring gulls.