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A follow-up up to Fluke and the Fate of Overfishing

By Capt. John McMurray


A year ago this month, Sport Fishing Magazine ran Fluke and the Fate of Overfishing - How a Small Flatfish May Change National Management Priorities.  The article provided a comprehensive look at the summer flounder management controversy that raged at the time and continues today, a controversy which has divided the angling community into two distinct camps. 


On one side stand angers who believe in both fisheries science and in conservation, even when it requires them to make sacrifices for the good of the fishery.  They believe that weakening fisheries management law in order to permit larger harvests today is shortsighted, and want to see managers focus on the long-term health of the stocks.  They think that fisheries biologists should be given the opportunity to show that they can completely rebuild stocks of summer flounder and other species within the time periods established by law.  On the other side stands much of the New Jersey and New York recreational fishing industry.  They claim that the science underlying summer flounder management is flawed, want to see fisheries management law changed to allow for what they term “flexibility,” and they want to increase harvests now, in order to spare angling-related businesses and coastal communities the pain that often accompanies rebuilding overfished stocks. 


Fluke and the Fate of Overfishing described how the summer flounder problem arose and touches on its potential long term effects on fisheries management.   The piece was concluded with breaking news regarding the passage of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act , which was passed by Congress in the final hours of  the 2006 session and included a provision giving managers an extra three years to rebuild summer flounder, which was intended to lessen any adverse economic impacts that tighter regulations might have on the fishing industry.   You may review that article by clicking on its title. 


Magnuson and the 3-year extension:


The three-year summer flounder extension gives managers until January 1, 2013 to reach the target "spawning stock biomass" of 197 million pounds by 2013. However, revised language in the new Magnuson Act explicitly directs fishery management councils to heed the advice of Science and Statistical Committees regarding the maximum harvest levels which will permit managers to rebuild fisheries on schedule.  Such change in the law was long sought by environmentalists and conservation-minded anglers, who argued that the provision was needed to alter the culture on regional fisheries management councils, which have a history of discounting scientific recommendations if the resultant economic pain threatened to be too great for their constituencies. 


Commercial fishermen and a contingent of the recreational fishing industry would like to see managers lower the rebuilding target, but lack any hard data to support their position.  The provisions of the new Magnuson Act that require fisheries decisions to be based on the best available science thus stand in their way.  That drove representatives of the recreational fishing industry to make common cause with the commercial fishermen, and attack the law itself.  Recent events brought renewed energy to that effort. 


Current events:


When the harvest data for 2007 came in, it showed that all but two states had exceeded their recreational harvest targets for summer flounder.  "They were all over except Virginia and Massachusetts. They were 20 to 60 percent over." said Jessica Coakley, who coordinates summer flounder management plans for the Mid-Atlantic Fishery Management Council (MAFMC).


In July, The National Marine Fisheries Service released a preliminary flounder stock assessment that recommended a possible 32 percent reduction in harvest - from the 17.1 million pounds allotted this year to a 2008 quota ranging from 11.6 million pounds to 15.7 million pounds.  The wide range in possible harvest caps depended on two factors.  The first was the amount of risk managers were willing to accept.  A mere 50-50 chance of successfully avoiding overfishing permitted higher landings than did a 75% probability.  The second factor went to the accuracy of the data itself.  In the June, 2005 peer review of the stock assessment, biologists discovered that the model used to determine fishing mortality actually understated the number of summer flounder removed from the population in the most recent fishing year.  Thus, previous years’ quotas were actually overly optimistic, as they were based on underestimates of fishing mortality.  Managers had to decide whether the “retrospective increase” in fishing mortality would occur again in 2007.


Biologists advising the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission  recommended that 2008 summer flounder harvest be capped somewhere between 11.64 and 12.9 million pounds, figures that recognized past underestimates of harvest and provided for either a 75% or 50% chance of preventing overfishing.  However, both the Council and ASMFC set the 2008 harvest at 15.77 million pounds, which provided a 75% chance of preventing overfishing, but only if the historical underestimate of harvest didn’t occur once again.   The Council could safely ignore the recommendation of the scientists, despite the new provisions of Magnuson, because such recommendation came only from its own staff and from the Summer Flounder Monitoring Committee.  It’s Science and Statistical Committee was never consulted.


The fact that NOAA Fisheries exploited a loophole in the law when it adopted a quota that exceeded the scientific recommendations is raising questions about the viability of the new Magnuson Act.  "We don't think 15.77 (million pounds) is consistent with the Magnuson-Stevens Act requirements for science-based management that prevents overfishing,” Noted Lee Crocket of Pew Charitable Trust, “nor the fluke fishery management plan requirement that the rebuilding plans have a 50 percent chance of success."


"It's important not to set a bad precedent. You don't want the first situation out of the gate to endanger a new era," said marine scientist, Dr. Andrew Rosenberg, a former regional director of NOAA Fisheries Northeast Regional Office who is now a professor at the University of New Hampshire, "The longer you keep avoiding reductions, the more difficult rebuilding will be. This is the classic case of allowing short-term interests to dominate over long-term prospects for the fishery.”


Recreational anglers are likely to overrun the catch quota yet again in 2008.  Patricia Kurkul, pointedly warned at the joint Atlantic States Marine Fishery Commission (ASMFC)/Mid Atlantic Fisheries Management Council (MAMFC) meeting in December that the agency aims to stem those estimated catch overages, which the Marine Recreational Fishing Statics survey has reported in every year since the management plan was adopted.


A shut-down in 2009?


Late in October, Bill Hogarth, then the Assistant Administrator of NOAA Fisheries, sent a letter to the Chairman of the Mid Atlantic Fishery Management Council, warning that if 2008 conservation measures did not end the serial overfishing that is slowing the growth of the flounder population, the fishery in Federal Waters could be shut down prematurely in 2008 and stay closed through 2009. "Let me stress that if the measures implemented by the states to manage the 2008 recreational fishery are not effective to constraining recreational harvest  limit, NMFS is prepared to close the summer flounder recreational fishery in the exclusive economic zone if the recreational harvest, when added to the commercial quota, threatens to result in the overall quota being exceeded."


The system has worked:

Despite the loud criticism, few could argue that the current, science-based management plan is succeeding. The decline in the summer flounder population bottomed out in the late 1980s and early 1990s, and spawning stock biomass has increased fourfold.  In addition, unpopular and painful as they may have been, regulations have led to the expansion of the age and size structure of the summer flounder population, as evidenced by the increased abundance of large fish. (Fluke reproduce by 18 months of age and can live for nearly 20 years.) The current age structure includes many fish out to age seven, a big improvement over a few years ago, when few fish survived past two years (14") due to intense fishing pressure.


These improvements are consistent with what fishermen report — more and larger fluke than ever before.  "We're on the right track. We've rebuilt a lot.” Coakley said.  “There's a lot more fish out there, and they're older fish." This confirms how low this population was due to massive overfishing in the 1980s. Now, because of limits on overfishing, the stock has begun to rebound.  A point that gets missed by critics, who tend to demonize what they call “the environmental industry”, is that this progress wouldn't have occurred without those in the environmental community holding the National Marine Fisheries Service legally accountable for conserving and rebuilding fish stocks.


“Back in 2000, a lawsuit led by another group, the Natural Resources Defense Council, led to a court decision that forced NMFS and the  Mid-Atlantic Fishery Management Council to significantly lower the annual catch quota.  It worked!” wrote recreational fisherman Mike Flaherty in a letter to the South Coast Today. 


“Arguments being advanced by fishermen in the fluke mess are quite convoluted,” writes Flaherty, “On the one hand, there has been tremendous progress to unprecedented levels of abundance.  On the other hand, they claim that the rebuilding goal is way too high and will never be reached.”


Stock rebuilding has stalled:


Unfortunately, this progress has stalled over the past five years.  Management action, first implemented in the 1990s, reduced fishing mortality and allowed the stock to improve, while several years of high recruitment (an infrequent event for fluke) further aided progress.  But while managers have succeeded in lowering fishing mortality from the levels of the 1980s, it has yet to be lowered to the level determined necessary to fully rebuild the stock. 


Simply put, removals due to commercial and recreational landings, discards, and unreported landings exceed the capacity of the stock to rebuild. The fact that the stock appears stalled while fishing mortality is high is consistent with what scientists would expect to see. In order to rebuild the stock it is necessary to implement quotas and regulations that result in an actual fishing mortality that is at or below the rebuild fishing mortality. 


Questioning the Science:


At the core of the controversy is the rebuilding target itself.   Representatives of the recreational fishing industry claim it is unachievable, frequently calling it “arbitrary,” “pie in the sky,” “unscientific” etc.  They cite the lack of progress in recent years as evidence the stock might be constrained by habitat loss, predation or overcrowding, and conclude it is not worth trying to reach the rebuilding goal.


Tony Bogan, president of the United Boatmen of New Jersey and New York and one of the founders of Save the Summer Flounder Fishery Fund told the Asbury Park Press, “I'm no scientist, but I personally think it is unrealistic to believe that the stocks can be rebuilt to that level."  But it is the scientists that contend that stocks most certainly can be rebuilt if fishing mortality is reduced.  "Even at these recruitment levels, the stock has the potential to go to 197 million pounds," said Coakley.   


NOAA scientists say that recent stock growth, despite growing fishing pressure and high fishing mortality rates, suggests that the current environment can support a large summer flounder population.  Thus, the target is realistic based on the capacity of the stock to reproduce, and the data indicates that sustainable catches at the biomass goal (197-million pounds) would be substantially higher than catches at the current population size.


There have been further rumblings that the baseline used for the rebuilding goal is illegitimate because it is outdated.  The Rhode Island Saltwater Anglers Association website reads  “Was  it based on good scientific data?  No, it was based on the estimated stock size that existed in 1930, but there wasn’t any good evidence back then to back up that number.”  While widespread, the assertion that the target is based on 1930s data is patently false.  Biologists have repeatedly stated, at Mid-Atlantic Council meetings and elsewhere, that the target is based on data gathered since 1982, on fish caught in surveys and by those landed by fishermen. That data goes into a stock assessment model called a virtual population analysis (VPA). It uses widely-accepted and commonly-used fishery science principles to analyze the summer flounder population.   


“The quality of the scientific data on fluke is among the best for mid-Atlantic species.”  Noted ASMFC’s Executive Director Vince O’Shea .  “State and federal scientists work together to prepare fluke assessments.  Their results and the current modeling approach have been peer-reviewed by independent fisheries scientists 16 times in the last 23 years (Most species are peer-reviewed every five years) and the peer reviews have found the model to be valid, and have facilitated ongoing modeling improvements.”  


Still, the need to make estimates assures that no stock assessment is perfectly accurate.  The NOAA science includes a recognized standard error of about 30%.  Thus, if the science could knowingly be off by some 30 percent, there is very real risk involved in setting harvest targets right at the overfishing threshold, as is currently being done with summer flounder.  “If the science is uncertain, why on earth would the MAFMC cling to constantly fishing at maximum sustainable yield?”  Notes Flaherty, “When the data is wrong the surprise is rarely pleasant.”


Lack of Precaution:


Thus, in light of the perceived and real uncertainly in the science managers should be exercising caution with fluke.  But they have yet to do so.  Lee Crockett of Pew Charitable Trust was severely criticized in the New Jersey angling press for suggesting that fluke should be managed in the same precautionary fashion as striped bass.  The New Jersey industry spokesmen seemingly misunderstood his arguments, and believed that he was advocating a 10-year moratorium on summer flounder harvest when fluke weren’t in as bad shape as bass were when  a shorter moratorium was put into place during part of the 1980s.  “We are not calling for a moratorium for the summer flounder fishery,” said Crockett, “Instead, we advocate taking a cue from striped bass management so we can save the fishery.”


When you consider that bass and fluke were both at their low point in the mid to late 80's and you compare the general management approach since then, you can see how practicing precaution allowed stripers to do well and how we ended up with the difficult predicament we are at right now with fluke. 


In the case of bass, every harvest increase was conditioned on the population and/or recruitment meeting a specified target, and the watchword was CAUTION.  Managers set a fishing mortality target significantly lower than the fishing mortality threshold, so that even though fishing mortality was frequently greater than the target, it never quite exceeded the threshold, so overfishing never occurred and regulations could remain consistent over the years.  Such implementation of a target fishing mortality rate that is below the defined overfishing threshold for a species is called a "precautionary buffer." It is a proven, commonsense approach in light of uncertainties inherent in fisheries science.


With fluke, there was no such caution.  The target was set right at the threshold, so any time fishing mortality was greater than the target it automatically led to overfishing and problems with changing regulations.  Yet when it comes to summer flounder, many connected to the fishing industry consider the notion of precautionary buffers “extremist”, and deem those recommending such precaution as “radical environmentalists” who want to end all fishing.  Even now, setting recreational regulations to achieve a target harvest 20-25% below the recreational allowable catch would make sense, but there is no doubt that any attempt to do so would be bitterly opposed.


Given the enormous pressure from the fishing industry, and in particular the New Jersey fishing industry, to fish fluke at the highest possible level, the MAFMC decided too often to maximize harvest levels rather than err on the side of caution. Precautionary measures addressing slowed recruitment, potential inaccuracy in the model, etc. were never adopted.  Even when retroactive increase in fishing mortality was discovered, it was ignored by the Council.


In addition, recreational summer flounder harvest, unlike that for striped bass or any other species, is allocated on a state-by-state basis rather than coast-wide, which permits local abundance or absence to skew landings.  Since the allocation is based on obsolete, decade-old data of dubious accuracy, it also does not account for the relative abundance of summer flounder, which has shifted northward as the stock recovered.  Today, it is virtually assured that New York and New England will overfish, only because that’s where the fish are now most abundant.  However, New Jersey and some other states refuse to go to a coast-wide management model, as they would have to accept a smaller allocation and more restrictive regulations. 


Equitable allocation amongst states


States currently use a system known as "conservation equivalency" to set summer flounder regulations, which may include any combination of bag limits, seasons and minimum fish sizes calculated to keep a state’s harvest within its allocation.   Such allocation is based on the share of the total recreational harvest that the state caught in 1998, the last year that everyone fished under the same regulations.  Thus, they're based on a single year of Marine Recreational Fishing Statistics Survey (MRFSS) data, data that is constantly criticized by various organizations—except when it provides a state with a disproportionate share of the fishery, at which point the data is vigorously defended by that state’s residents.


“It is ironic that the organizations that are most critical of summer flounder management and MRFSS are based in New Jersey, which receives the lion’s share of the recreational fluke allocation based on the very data they criticize” noted a contributor to a popular listserve.   New Jersey gets a little over 39% of the entire recreational quota, more than twice that given to any other state.  Not only is the current method arguably unfair to those surrounding states with a significantly lower quota, but state by state management is partly to blame for the ASMFC's and MAFMC's apparent inability to rein in recreational landings of summer flounder, as each state trying to "game" its regulations to appear compliant on paper while actually drafting rules intended to maximize harvest.  


Technical advisers to ASMFC and the Council suggested going to an across-the-board, coast-wide daily fluke limit of 19-inch minimum fish size and two fish per angler for 2008.  "The 2007 state-by-state conservation equivalency management measures have not been effective in constraining harvest,” noted Kurkul in a letter to the MAFMC, “and, unfortunately, this is not an uncommon result.” Hogarth also suggests that state-by-state fishing limits allowed by the council may need to be modified into simpler and more restrictive regional or coast-wide rules. 


The MAFMC and the ASMFC did consider the coast-wide approach during their joint meeting in December. New Jersey which has the greatest summer flounder allocation (which allowed its anglers to harvest eight fish per day at 17 inches in 2007), predictably led the fight against the proposal, with counsel for New Jersey based recreational fishing industry groups such as the Recreational Fishing Alliance and United Boatmen arguing strongly in favor of Garden State anglers. The MAFMC approved conservation equivalency by a vote of 11-8 while the ASMFC  approved it by a vote of 7-4.  One blogger who wished to remain anonymous wrote, “RFA claims to be a national organization but support for a policy that so obviously benefits the state in which they are based, brings to question who they really represent, a national constituency or a New Jersey one? “


A coast-wide rule is preferred by environmentalists, NOAA Fisheries officials and angler advocates from New York, who say they are penalized by a 19.5-inch minimum size, the highest of any state.  US Senator Charles Schumer wrote to his constituents via email “It makes no sense that in New York you can only retain 4 fluke per outing and that the season runs from May to September, when in neighboring New Jersey and Connecticut you can keep 6-8 fluke per outing and have fishing seasons that last between five and eight months.”  Schumer recently testified at an MAFMC meeting about the need to level the playing field, and bring equity to the key regulations that vary between New York and neighboring states.


Political pressure for “flexibility”:


Because certain commercial and recreational fishing industry organizations did not get what they wanted during the Magnuson Reauthorization (essentially the right to continue to overfish and to disregard the best available science when setting regulations) they have been putting heavy pressure on decision-makers to add what they call “flexibility” to Magnuson’s rebuilding provisions.  In November, Representative Walter Jones of North Carolina introduced the Flexibility in Rebuilding American Fisheries Act (HR 4087). Then in Mid Feb Representative Frank Pallone, a senior member of the House Natural Resources Committee, sponsored a similar bill (H.R. 5425) the Flexibility in Rebuilding American Fisheries Act of 2008. Both bills would allow fisheries managers to extend the 10-year deadline to minimize negative impacts on fishing communities while stocks are rebuilding.


At first glance they seem reasonable.  If you can rebuild a species in 13, 15 or 20 years rather than 10, and the population remains on an upward trajectory the whole time with no overfishing, why not do that to preserve fishing communities?  But it is not that simple. 

Current law already allows exceptions to the rebuilding deadlines when they are based on sound science, such as when the biology of a fish (e.g. it may be a slow growing and long lived fish) doesn’t make a 10 year rebuilding period feasible, or environmental conditions (e.g. habitat loss, climate change, predation) won’t allow the species to rebuild.   The two bills would allow for more exceptions:  For example, the Jones bill provided that, when the cause of the fishery decline is unrelated to fishing or limiting fishing activity alone is not an effective way of rebuilding;  to minimize the economic impacts of rebuilding programs on fishing communities;  for one or more fish stocks in a multi-species fishery ; when the rebuilding targets are substantially increased after the rebuilding period has begun.  The bills also require that, for all but the first-listed exception the number of years beyond the standard 10-year period would be limited to a time period equal to the sum of 10 year, one mean generation (the average time to maturity) of the fish involved, plus the time it would take to rebuild such stock in the absence of all fishing. Rebuilding delays based on economic impact or affecting multi-species fisheries can only be applied if there is evidence that the relevant stock of fish is already on a positive rebuilding trajectory. 


Historically, by granting such extensions, special exceptions etc., managers have done nothing but create worsening situations.  Environmentalists and conservation-minded anglers claim that “flexibility” really takes us back to pre-1996 fisheries management, when “optimum yield” was defined as “maximum sustainable yield adjusted” to allow for various considerations, including economic impact.  In practice, quotas were always set well above Maximum Sustainable Yield to increase short-term profits, resulting in the collapse of New England groundfish stocks and, ironically in the current context, summer flounder.  Environmentalists and conservation-minded anglers now see the recreational and commercial fishing industry trying to return to those old, discredited policies.  “Somehow we got on a track that a slow death was preferable to a very painful hiatus” noted a Fishfolk listserve contributor that wished to remain anonymous.  


Overfishing has never saved fish stocks or fishing communities. Instead, while appearing sympathetic to fishermen’s immediate problems, one could argue that managers have actually worked them a great disservice by allowing stock levels to deteriorate to levels that could no longer support the existing fishery.  The legislation introduced by both Jones and Pallone would merely cloak delay in the euphemism “flexibility,” and would allow managers to avoid both lawsuits and the need to recover fish populations. 


HR 4087 Sponsor, Barney Frank, a strong ally to his commercial fishing constituents in New England and who presided over the New England Groundfish collapse, wrote.  “If the same rebuilding targets can be met in, say, 13 years instead of 10, without compromising the ultimate rebuilding goal, who is hurt?”


One can see how this plays out in the real world, because the latest reauthorization of the Magnuson Act did exactly what Congressman Frank suggests, changing the rebuilding deadline for summer flounder from 10 to 13 years.  What did fisheries managers do with such new-found “flexibility?”  Exactly what they did before.  They ignored the recommendations of the Summer Flounder Monitoring Committee and chose the riskiest option available to them, even though they were warned that overfishing would probably result.  “Managers and industry are not doing anything with the extra 3 years, except complaining that it doesn’t provide enough time,” noted Coastal Conservation Association New York Chairman, Charles Witek  “The longer the rebuilding period, the longer people will procrastinate.  If you gave them fifty years to rebuild the stock, they would still opt for the largest short-term harvest, and  in year 47 we would be right where we are today, with the industry people complaining about their situation and demanding that more “flexibility” be written into the law.” 


“The exceptions currently written into the law already allow a great deal of flexibility when the science, not politics, indicates it is needed,” writes Flaherty, “Either of these two bills would add more exceptions to current law in order to extend the timetables needed to rebuild weakened fish stocks.”


Even a casual reading of proposed “flexibility” legislation reveals that the wording is so ambiguous that it would be nearly impossible to implement any finite time frames for any fishery rebuilding schedule.  So far, no one has been able to answer how long the summer flounder rebuilding period would actually be if either of the pending two bills passed.  According to Flaherty, NMFS  reviewed the bill and concluded that they could not estimate what it would do to rebuilding schedules because it is, in their words it was , "rather broad."  Barney Frank’s office couldn’t provide an answer either.  Given the background leading up to the legislation, one could make the case that such ambiguity is just what the sponsors intended. 


For example, the New Jersey recreational and commercial fishing industries which are the primary proponents of “flexibility” legislation, have frequently and publically called the rebuilding target for summer flounder "unrealistic" And  "unattainable."   “Think about that for a moment” says Flaherty “If they are right, then how on Earth can the bill that they and Congressman Frank are supporting not lead to "open-ended" rebuilding schedules if the rebuilding goal can never be achieved anyway?”


While the reauthorization of the Magnuson Act late in 2006 closed some of the loopholes that were often used by industry groups to delay the steps necessary to rebuild overfished stocks, it is clear that “flexibility” legislation would open up a whole slew of new ones. "My concern is that the temptation to push back rebuilding will perpetuate management based on politics rather than on science, and that rebuilding would become elusive," said Dan Whittle, director of the Southeast oceans program at Environmental Defense. 


For decades, anglers have rightfully criticized commercial interests for pursuing a course of action that has diminished fish populations on every American coast.  Environmentalists and conservation minded anglers see some in the recreational community resorting to the same goals and tactics used by commercial fishing groups to maximize harvest despite what the science recommends.  Congress DID mandate 10 years to rebuild overfished stocks, including summer flounder, and the best available science tells us that such rebuilding is doable.  Given where we are today, that is inevitably going to cause some belt-tightening and is going to hurt some local economies.  Yet, many experts believe that the alternative, weakening current fisheries law, will cause far more problems in the long run.