Nuts and Bolts…Why New York Gets Screwed

Summer Flounder state allocations are ridiculous, it’s time we address this

Summer Flounder and Fluke  Regulations

Photo by Capt. John McMurray

I’ve written about summer flounder here and elsewhere on more than one occasion, mostly as a management success story.  The species really is a good example of how fisheries management law can work if given a chance.  The National Marine Fisheries Service (NMFS) and the Mid Atlantic Council got sued back in 1999 over summer flounder, essentially forcing them to rebuild the stock.  And while there were some tough regulations, and much whining and gnashing of teeth during the recovery, we did indeed rebuild… to historical levels.  Without a doubt, we’re enjoying the benefits.  The stock is entirely different than it used to be.  There is an abundance of older, larger fish around.  So much so that it’s become a significant part of my “light-tackle” business.  Indeed that’s a good thing.

It’s not surprising that such a rebuilt stock looks quite a bit different than the badly overfished, truncated one did.  Not only are there more, older larger fish around, the stock seems to have expanded north and east.  Anglers have been noting such a shift for several years, and now the science is proving that this is indeed the case.  Recent research by Dave E. Richardson, et.al., has shown that the geographic distribution of the stock is unquestionably different than it was a decade ago.  According to the new science, the bulk of the population now appears to occur off Northern New Jersey, the south shore of Long Island and Rhode Island, where as ten years ago the bulk of fish appeared to be off of southern New Jersey.  Of course there are different theories on why this is the case.  Climate change is a likely culprit as similar patterns have been observed in other species in the Northeast US, but it’s intuitive that when a stock rebuilds after decades of overfishing, it expands and the dynamics of that stock will change.

Summer flounder is a jointly managed stock, with responsibility shared between the Mid Atlantic Fishery Management Council, which addresses fisheries in federal waters, and the Atlantic States Marine Fishery Commission (ASMFC), which generally manages the inshore fishery.  Before 1999, summer flounder were managed on a coast-wide basis.  In other words, there was a single size and bag limit for all anglers, wherever they might happen to fish.  But the abundance and average size of the fluke wasn’t the same in every state, so some of the states argued that the one-size-fits-all system wasn’t fair.  States with modest harvests objected to their anglers being penalized for another state’s overfishing in the prior year.

So, through an addendum, it was decided that states would get a percentage of the total quota based on their alleged share of the catch in a single “baseline” year, 1998, which was chosen because it was the last year in which every state fished under identical regulations.   According to that single year of MRFSS (Marine Recreational Fishing Statistics Survey) data, New York received about 17.5% of the overall harvest.  New Jersey got the lion’s share, a little under 40% – understandable, because that’s really where the center of the stock was back then.  Virginia’s allocation is about one percent less than New York’s.  All of the other states are minor players, with shares ranging from 2.95% in Maryland to 5.66% in Rhode Island.  From 2003 to 2013 each state has been adopting regulations based on that percentage of the overall quota that would theoretically keep its harvest within its historical share.  This is called “conservation equivalency.”

Because of the now well-documented geographic shift in the summer flounder population, today there are more fluke swimming off New York’s coast, and fewer off New Jersey’s.  But the current allocations don’t reflect that.    As a result, for many years, New York had the most restrictive regulations on the coast, yet still overfished its allocation by a significant amount, while New Jersey, which often had the most liberal rules, couldn’t catch its entire allotment.  Although that situation has changed in the past couple of years—New Jersey has relaxed its regulations enough that it is overfishing once again—New York’s rules remain the most restrictive, despite the increased number of fluke swimming off its shores, while New Jersey’s remain lax; even though it has fewer fish off its coast.  Jersey has been allocated such a large share of the summer flounder resource that it need not impose strict size and bag limits to stay within quota.  So New Jersey anglers end up with a much smaller size limit (often two inches below New York’s!) and a larger bag limit.  As regular readers of this column know, I’m all for constraining harvest to avoid overfishing, but this situation, besides being illogical, ends up being really unfair to New York’s anglers and angling related business.

I often find myself in the ridiculous situation where I’m fishing the New York side of Ambrose Channel in Lower New York Harbor and I’m tossing back dozens of 18” fish to get my 4 fish at 19”.  But 50’ to the west of me on the New Jersey side some guy is throwing those same 18” fish in his cooler (Jersey regs were five fish at 17.5” last year).  Similar boundaries—and regulatory disparities–exist between New York and Connecticut in Long Island Sound, New Jersey and Delaware in Delaware Bay, and Maryland and Virginia in the Chesapeake.  Not only is this sort of thing just stupid, it creates confusion and non-compliance.  For the enforcement guys its nightmare.  And it makes no sense because, despite the differing regulations, WE’RE ALL FISHING ON THE SAME STOCK OF SUMMER FLOUNDER!

Perhaps more important than all of this is the science.  It’s become a chorus amongst anglers, the recreational fishing industry, managers and the scientists themselves that we need better science in order to properly manage our fisheries.  Yet, under the state-by-state/conservation equivalency system we’re using a survey/data-collection system that never was intended to be used on a state scale.  The precision of such surveys (The Marine Recreational Fishing Statics Survey –MRFSS, and now Marine Recreational Information Program-MRIP) are simply not adequate to manage state-by-state quotas, nor have they performed well in that respect.   We have been told again and again that the larger the area, the larger the sample, the more precision with such surveys.  So from a science perspective, state-by-state allocation simply doesn’t work.

Recreational catch surveys have been widely criticized by the angling community for as long as I can remember; that criticism has been justified in some cases, and probably not justified in others, but it is absolutely justified here.  I always find it interesting that when such surveys indicate that a reduction in fishing mortality is needed, there are those who say that the surveys are “fatally flawed.” Yet when a state wants to hold on to its unjust summer flounder allocation, which is based on just a single year of MRFSS data, the same people argue that such allocation is completely justified by the data.  Hard to miss the hypocrisy here.

Yes, New York did actually support the state-by-state allocation system when it was hatched.  It voted for the 1998 baseline, because it believed at the time that this system would result in an equitable distribution of fishing opportunity among the states, while assuring that conservation measures needed to rebuild the summer flounder stock could be imposed.  But New York state officials also believed that allocation decisions could be revisited in the future.  Believe me, since the real-world consequences of “conservation equivalency” became known, New York has been aggressively seeking reconsideration of that allocation.  But the states that ultimately benefited from such an allocation (read New Jersey) have not allowed that to happen, even in the face of hard science indicating the practicality of revisiting such allocations.

What’s the real solution here?  When you take state politics out of the equation, from purely a science and management perspective, the reasonable thing to do would be to nix state-by-state/conservation equivalency entirely, and go back to coast-wide management for at least three years.  In other words, have the states fish under the same regulations for a significant amount of time so that we can get the catch data that would give us a much clearer picture of what the fishery really looks like today, not what it looked like 15 years ago.  That data would give us a new baseline that would take into account current ecological, fishery, and socioeconomic conditions.  The data collection surveys would be much more precise given the larger “coast-wide” scale, which in the end would give us better science.  Not to mention, going to a coast-wide measure would provide for some equity among anglers within a region by eliminating the current size and bag limit disparities.

All this said, because coast-wide measures would likely disadvantage some states in the short term, and because those states will most certainly argue that we’ll again be in a situation where some states will be paying for others’ overages, I seriously doubt that a motion to adopt coast-wide measures will have sufficient support at either the Council or ASMFC.  I say this with some certainty because during the last 5 years as a Council member from New York, we’ve advocated moving to such coast wide measures each year. Despite the consistent recommendations from Council and NMFS biologists that conservation equivalency should be abandoned, we always get shot down.

A regional approach certainly has a better chance of being accepted.  States could pool their allocations into regions that could account for the stock redistribution as well as the states’ shared waters.  Yet such regional management approaches have to be voluntary and thus far there hasn’t been any agreement between states to initiate such regions. Most states don’t appear give a crap about New York, especially if easing New York’s woes means that they stand to lose a half an inch or a few days in the season.

Still, there is some progress.  There was a recent addendum allowing for voluntary sharing of “unused” summer flounder quota from states that were under their target quota.  In other words, they could give that unused quota to those states that might have gone over.  That provided some relief for New York last year. But this of course is a short-term fix.   Yet, there has indeed been recent, serious discussion of the need for a longer-term solution.  As a result, ASMFC recently formed a Summer Flounder Working Group who, with the State of New York developed a number of options for regional management.  I suspect we’ll see robust discussion on the benefits and draw backs of each region at next week’s Mid Atlantic Council meeting.  Some of the regional proposals might stand a chance. It all depends on whether the states think that the tradeoffs are worthwhile and are willing to give up a half-inch here, a fish or two there and, most importantly, season length in the southern end of the range.

I guess the point of all this is that New York is pissed off.  We’ve been getting screwed under state-by-state/conservation equivalency for an awful long time.  As the stock expands and moves north and eastward the situation just gets worse.  It’s not just anglers, charter/partyboat owners and tackle industry folks. New York’s Governor is pissed.  And apparently so is Senator Chuck Schumer, who just introduced a bill which would require us to draft an entirely new Fishery Management Plan if this doesn’t get resolved…  this year.

There really is no management or biological justification for continuing with the current system.  It’s all come down to the special interests of individual states (So much for “cooperative management”).  This is not how the system is supposed to work.  The states know it.  The Mid Atlantic Council knows it, and NMFS knows it.  Year after year, the Council and ASMFC hear their staff biologists recommend that state-by-state management be abandoned; year after year, the majority of the Council and ASMFC vote in favor of it, simply to avoid two or three years of stricter limits, even though in the end coast wide management would result in better science, a better understanding of the stock dynamics, and a fair and equitable allocation.  What’s especially annoying is that NMFS knows that employing conservation equivalency is wrong but, to date, they haven’t had the courage to rise above state politics and impose coast-wide measures, although they certainly have the power to do so.

New York deserves and expects some relief in 2014, and we should get it.  As a Council, we have an obligation to work this out.  If we don’t, and the states continue to thumb their noses at us, I suspect there will be legal action, and it appears to be entirely justified.  The Magnuson Stevens Act’s National Standards are pretty clear.  National Standard 2 states “Conservation and management measures shall be based upon the best scientific information available.”  That’s clearly not the case here if we disregard the new science on stock distribution, and if we continue to use the MRFSS/MRIP data on an inappropriately small scale that leads to high margins of error.  National Standard four states “Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.”  That one is pretty darn clear.  Lastly National Standard 6 states “Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches.” Thus, if the best available science suggests that distribution of the stock in 2013 is different than the distribution of the stock in 1998 we have to address it.

Yes, the state of New York sued a couple of years ago on this and lost.  There was enough on the record to support the current rule, and in such cases a court won’t substitute its findings for that of a Federal agency, particularly with respect to such agency’s area of expertise. To overturn an agency decision, that decision must be “arbitrary”, “capricious” or illegal, and the judge determined that the summer flounder rulemaking was none of those.  But there are two things that need to be emphasized this time: the legal requirements of the Magnuson Stevenson Act and refusal by NMFS to rise above the state politics. Also the new science proving the changes in the distribution, abundance and age structure of the stock.

Quite honestly, I’m not a fan of such lawsuits as they take a lot of time and resources, which would be better served elsewhere.  But if we can’t work it out, in this case it’s entirely justified.  I’m really hoping we can agree on some sort of solution next week.  But if we can’t… Well…

Stay tuned.  Next week I’ll explain what happened and if there was any resolution.

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After obtaining an undergraduate degree in Political Science from Loyola College in Maryland, Captain John McMurray served in the US Coast Guard for four years as a small-boat coxswain and marine-fisheries law enforcement officer. He was then recruited to become the first Executive Director of the Coastal Conservation Association New York. He is currently the Director of Grants Programs at the Norcross Wildlife Foundation in New York. He is the owner and primary operator of “One More Cast” Charters. John is a well known and well published outdoor writer, specializing in fisheries conservation issues. In 2006 John was awarded the Coastal Conservation Association New York Friend of Fisheries Conservation Award.

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