What exactly are anglers marching for here?

 I’ve been trying to stay quiet on this “United we Fish” march that’s taking place in Washington DC this week.  But frankly it’s annoying me to the point that I just can’t hold it in any longer.  I’m all for anglers going down to DC and expressing their concerns.  But I’d be lying if I didn’t say that it didn’t bother me greatly that anglers are going, literally by the busload, to join hands with a commercial fishing industry not known for its conservation ethic, in an effort to weaken some of the most important provisions of fishery management law .   

A little background here before I continue with what is my opinion, and my opinion alone (I’m not representing any group or organization I may be affiliated with or a member of). 

Current law rightly requires fishery managers to rebuild overfished stocks in a time period that is “as short as possible,” generally not to exceed 10 years (except in cases where the biology of the stock, other environmental conditions or international agreements dictate otherwise).  By all means, reasonable.

Congress, with what appeared to be overwhelming support from the American people, reaffirmed the need to rebuild overfished stocks promptly when it reauthorized the Magnuson-Stevens Act in 2006, upholding the timeframe first enacted in the Sustainable Fisheries Act amendments of 1996.  Revised language in the reauthorization explicitly directed fishery management councils to heed the advice of independent scientists on their Science and Statistical Committees regarding the maximum harvest levels which will permit managers to rebuild fisheries on schedule. 

Such a change in the law was long sought by not only environmentalists but by conservation-minded angling groups, 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.   In addition, the reauthorization required firm catch limits and accountability measures be established to ensure that such fisheries were rebuilt.  

In short, the 2006 Magnuson Act Reauthorization gives fishery management law real teeth and thus far it appears to be working.  Rebuilding for most species is either done, or near completion. 

Unsurprisingly, because of firm time lines and rebuilding goals, there’s been some economic pain suffered not only by the commercial fishing industry, but the recreational fishing industry, as seasons and bag limits shrink and the stocks recover from decades of overfishing.   A poor economy has exacerbated the situation.  In response, each year since the Reauthorization, Rep. Frank Pallone (D-NJ) has introduced the “Flexibility in Rebuilding American Fisheries Act”.   Last June, Sen. Charles Schumer (D-NY) introduced companion legislation in the Senate.   As I understand it, the march in DC is essentially to show support for these two bills. 

 At first glance flexibility in fisheries management may seem reasonable.  If you allow some exemptions so that some stocks can rebuild in 15 or 20 years rather than 10, and the population remains on an upward trajectory the whole time with no overfishing, why not allow such exemptions so that folks are not hurt by restrictive measures?  Unfortunately, it is not that simple.  There is in fact great danger to adding such flexibility in current fishery management law.   It would set us back decades, and would greatly benefit commercial fishermen while inevitably hurting anglers.   Here’s why:

First, the legislation changes language in the existing law from “as short as possible” to “as short as practicable.”  This small alteration could greatly weaken Congress’ intent to require fishery managers to rebuild overfished stocks as quickly as possible and gives the Councils ample reason to procrastinate.  The flexibility legislation’s wording is so ambiguous that I’d think it would be nearly impossible to implement any finite time frames for any fishery rebuilding schedule.  The legislation would merely cloak delay in the euphemism “flexibility,” and would allow managers to avoid both lawsuits and the need to recover fish populations.  

Still, advocates of the Flexibility legislation continue to say that a 10-year rebuilding requirement is “arbitrary” and not science-based even when scientists clearly say such goals are indeed possible.  And I suppose in the strictest sense, 10 years could be considered arbitrary.  But any deadline could be so labeled.  A 20-year timeline would be just as “arbitrary” as a 10-year one, and Council members, seeking to placate their constituents would be unlikely to work any harder to recover a stock in 20 or 30 years than in 10.   And even after that, there’s no reason to believe managers would get serious about rebuilding and wouldn’t only ask for more flexibility down the road.  Don’t know about you guys, but I’d like to see some of these fisheries rebuilt in my lifetime, which is already happening under current law! 

A good example is summer flounder, which ironically is the fish that began the “flexibility” movement.   The species bottomed out in the late 1980s and early 1990s.  Anglers, particularly those in my home state of New York, have had to make significant sacrifices, but as a result the stock has increased five-fold.  Unpopular and painful as they may be, regulations have led to the expansion of the age and size structure.  There is now an abundance of larger older fish, a big improvement over just a few years ago, when few fish survived past two years (14″) due to intense fishing pressure.  This confirms how low this population was due to massive overfishing.  Now, because of limits on overfishing, and adherence to a deadline for rebuilding, the stock is rebounding nicely.  Summer flounder will likely be totally rebuilt by 2013.

Moving on, the flexibility legislation also allows mangers to claim that the status of an overfished stock is beyond their control.  This would enable NMFS to consider factors other than fishing when evaluating managers’ progress in achieving rebuilding targets.  It’s very likely that virtually anything can and will be used as an excuse to justify failure to rebuild.  As I mentioned in a prior blog, fishermen are notorious for trying to place blame for declining stocks elsewhere:  placing fault on development, pollution, climate change etc.  While these factors are certainly relevant, they do not justify continued overfishing.  When fish populations face stress from environmental factors, it doesn’t make sense to continue to catch them faster than they can reproduce, yet fishermen routinely point to such problems, and try to use them as excuses for overfishing collapsed stocks. 

A really good example of this is southern winter flounder.  In that case, fishermen conveniently overlooked the fact that fish were being caught at more than 250% of the sustainable rate, and blamed the species decline (it’s currently at 9% of target levels) on pollution, predators, habitat disruptions, global warming… in fact, just about anything besides themselves.  The Atlantic States Marine Fisheries Commission responded predictably, cutting landings in state waters by less than half after peer-reviewed scientific advice indicated that, in order to recover the stock, all harvest should be prohibited (but thanks to the Magnuson Act, harvest in federal waters had been closed).

The flexibility legislation would further allow managers to extend rebuilding for an overfished stock if it is caught with other stocks in a “stock complex”. This provision would delay indefinitely the rebuilding of one or more stocks in a multi-species fishery and allow fishermen to continue targeting healthier stocks at the expense of the overfished stock(s). The result – as seen in New England – is widespread overfishing of the weakest and most vulnerable stocks.

Perhaps the most important provision in the bill is that it would allow managers to extend the 10-year timeline to “minimize economic impacts” if a stock is on an upward trend.  Prior to 1996, fishery managers were able to put off rebuilding in the name of minimizing economic impacts, but such a policy has historically resulted in chronic overfishing.   The longer the rebuilding period, the longer managers, under extreme pressure from their constituents and politicians, will put off rebuilding as the stocks remain at a low level. 

Historically, by granting extensions, special exceptions etc., managers have done nothing but create worsening situations.  “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.  It’s disturbing to see the recreational fishing industry trying to return to those old, discredited policies, which would return us to the failed management system that led Congress to enact the rebuilding provisions in the first place. And let’s not forget that overfishing has more severe economic consequences than regulations designed to ensure sustainable fishing. Rebuilding fish populations to healthy levels makes good economic sense.

Yes, there are some teeth in the new Magnusson Act, which was authorized late in 2006 and yes, the regulations can really suck, especially if you are trying to run a charter business…  But they are absolutely necessary if we want abundant and sustainable fisheries and the opportunity for the average-Joe to catch a fish rather than having to pay a professional to catch fish from a depleted stock.   I can understand why commercial fishermen would adamantly disagree with me here, and I can understand the charter/party boat industry’s support of flexibility legalization, but I don’t get why any angler would want to go to DC to fight so that commercial interests can have greater flexibility to exploit a public fishery, and so make it harder for the average guy to find anything to catch.

I get that there’s been plenty of recent anti-government populism due to recent restrictive measures and even closures.  The recent black seabass shutdown in our region and some restrictive scup (porgy) regulations, combined with the tough but necessary measures we’ve had to endure to rebuild fluke by 2013 (and of course amberjack and red snapper in the South) have created more fear and loathing amongst anglers and renewed support for Flexibility legislation.   And the folks working to advance public support for legislation are certainly fanning the flames.  Yet interestingly enough the Pallone and Schumer bill would not do anything to address most if not all of these matters.   

Black sea bass and scup are both recovered stocks.  In both cases restrictive regulations were the result of recreational overages.  Nothing in the bill would have interfered with NMFS’ obligation to avoid overfishing (and thus the black sea bass closure would remain a valid measure), and the sea bass annual catch limit debate was resolved under current law.  Similarly, the scup annual catch limit was established on a recovered stock–there was no question of the annual catch limit being established to meet a recovery deadline. 

In short, the bill won’t address most of the problems that the recreational fishing industry always seems to mention in the same breath as “flexibility”.  It does nothing to fix MRFSS, would not affect the closures, would not address MPAs, etc.  About the only fishery it would have much application to is fluke, and by this point in the recovery, and with the 2008 year class coming on strong, the affect there would be trivial.  The only ones that will be helped by the bill will be the New England commercial groundfishermen and the southern snapper/grouper types.   Certainly not worth going to DC for I’d think. 

My overarching point is this.  Any student of fishery management can see that managers and fishermen have exploited every loophole they can to catch every last fish they can. While the reauthorization of the Magnuson Act late in 2006 closed some of the loopholes, it is clear that “flexibility” legislation would open up a whole slew of new ones.  The temptation to push back rebuilding will perpetuate management based on politics rather than on science.  These bills would, in effect, roll back the law to a time when fishery managers routinely placed short-term economic considerations over the long-term health of the fishery.    We’ve tried “flexibility” all the way up to 1996 and it’s pretty clear, based on a history of overfishing, that it didn’t work.   Flexibility was the problem back then and it’s certainly not the solution now. 

One would think that anglers would support the Magnuson Stevenson Act and allow rebuilding rules to work as intended to restore healthy fisheries as soon as possible.  Going down to DC to hold hands with commercial fisherman in the fight to weaken the most important conservation provisions in fishery management law just seems so wrong on so many levels.  Man I would like to see anglers traveling down to DC so that they can express their desire to conserve stocks of fish, rather than their desire to take more.  Perhaps we should start to arrange that? 


Below, courteously of Charlie Witek, is an analysis of how such a flexibility bill could affect fish stocks in our region.    

BLACK SEA BASS:              NO EFFECT.  As black sea bass are already a “recovered” species, legislation that does nothing more than extend the rebuilding period/extend rebuilding would have no impact on current and future management.  NMFS’ obligation to act to prevent overfishing would remain unchanged, so the October “emergency closure” would have been unaffected.  The later debate over the Annual Catch Limit, which eventually saw the ACL raised to 3.7 million pounds, could be and was resolved under current law, and did not require “flexibility” legislation to accomplish.

 BLACKFISH:         NO EFFECT.  Managed by ASMFC, which is not bound by the terms of the Magnuson Act. 

BLUEFISH:           NO EFFECT.  Bluefish have been deemed recovered, making any change to the rebuilding period irrelevant.

COD:      REBUILDING PERIOD COULD BE EXTENDED, LIKELY TO THE DETRIMENT OF NEW YORK ANGLERS.  Anglers currently may retain 10 fish, and are enjoying a resurgence of cod into waters easily accessible by New York boats, particularly those on the East End of Long Island.  Extending the rebuilding period would have the effect of increasing the ACL, including commercial harvest, leaving fewer fish in the water than is currently the case.  As New York is at the southern fringe of the cod’s range, its fishery appears to be dependent on a population large enough to leave its core New England range and expand into waters closer to New York.  Increased commercial harvest would make such expansion less likely, and increase the pressure that commercial vessels would put on the fish in the Block Island area.  Thus, while “flexibility” legislation might increase the overall ACL, it could easily result in fewer cod being available to New York anglers, and actually reduce recreational harvest.

SCUP:    NO EFFECT.  Scup are rebuilt, and thus the delayed rebuilding permitted by the proposed “flexibility” language would have no effect.  However, overfishing is still prohibited, so the 2010 ACL established by the Mid-Atlantic Fishery Management Council, even if smaller than strictly necessary (which I suspect to be the case) would not be affected, nor would future increases in the ACL be facilitated, by adoption of the legislation.  The only certain way to ease recreational scup limits is to increase the recreational allocation from the current 21% of ACL.

 STRIPED BASS:   NO EFFECT.  Striped Bass are managed by ASMFC, which is not bound by the terms of the Magnuson Act.

 SUMMER FLOUNDER:    REBUILDING PERIOD COULD BE EXTENDED, WITH DEBATABLE BENEFITS.  This is arguably the species which launched the “flexibility” movement.  However, we are at the stage in the restoration of the stock where the benefits of extension may be moot.  With only three years to go in the rebuilding process, and with the largest year class in 26 years having been spawned in 2008 (which will begin to recruit into the commercial fishery this year and into the recreational fishery in 2011—although later in New York given our highest-on-the-coast minimum size), the full recovery of summer flounder by 2013 is likely a done deal.  That is when the real discontent will set in, as anglers realize that the effect of the 2008 stock assessment, which lowered the estimate of stock productivity substantially, will be to permanently freeze limits at restrictive levels.  The long-term answer to relief for coastal anglers lies in the reallocation of the overall ACL.  For New York anglers, it lies in abandoning the current state allocations, which are based on a single year of MRFSS data (1998), and probably do not reflect the current summer distribution of the species, in favor of either coastwide regulations or a new set of state allocations which reflect the realities of today’s fishery, rather than those of a decade ago.  “Flexibility” legislation will do nothing to relieve either the inter-sector or the inter-state imbalances which currently plague New York’s anglers.

 WEAKFISH:         NO EFFECT.  Weakfish are managed by ASMFC, which is not bound by the terms of the Magnuson Act.

 WINTER FLOUNDER:       RECOVERY COULD BE DELAYED INDEFINITELY, SO THAT STOCKS NEVER RISE ABOVE CURRENT LEVELS; LOCAL EXTIRPATION IS POSSIBLE.    Passage of “flexibility” legislation might well be the final nail in the flounder’s coffin or, at least, in the flounder’s recovery.  Section 2(1)(B)(ii)(II) of the bill would permit the rebuilding period to be extended if the agency finds that the “cause of the fishery decline is outside the jurisdiction of the Council or the rebuilding program cannot be effective only by limiting fishing activities.”  In the case of this particular provision, there is no restriction on how far out the rebuilding deadline might be set.  Thus, if the New England Fishery Management Council, which has a history of denying fisheries problems and of attributing problems to causes other than fishing, were to determine that the winter flounder’s decline was due to pollution, shoreline hardening, dredging, predation, or even overfishing in state waters, which are outside of the Council’s jurisdiction, it could invoke this provision and use it to indefinitely delay the flounder’s recovery.  Given the dire condition of the flounder stock—just 9% of the biomass target—combined with unavoidable scientific uncertainty and the fact that the stock is comprised of local subpopulations of greater or lesser degrees of vulnerability, failure to make a serious effort to recover the species by a date certain is likely to result in the permanent loss of local populations.  Such loss, or even the failure to take meaningful measures to recover the stock, would not be of long-term benefit to New York’s anglers.


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.

Posted in Conservation
  1. avatar Anonymous says:

    Dear Mr. John Mc Murray,
    You are very shortsighted on your views of the current dilemna facing commercial and recrerational fishers, their families, area businesses and entire communities. But as long as it’s not happening in your back yard what does it matter? It matters because were human beings and we deserve to be treated as such. My family has been in the fishing industry for decades.We are a water people that rely on the vast ocean for our livelihood. Do you understand this is how so many of us survive, and put food on our tables.At 80 yrs. old should Papa learn a new trade? What is your answer to that.
    You sound very smart spouting off your facts and figures. But the truth uis even the Inspector General now realizes the NOAA has lost it’s way.Do you disagree with the Inspector General also?Fishermen have been left out of the loop for too long, at the discretion of the NOAA. Wasn’t one of their main duties of the Nationasl Oceanic and Atmospheric Administration to serve and protect the fishing industry? Wise up, before it’s too late.

  2. avatar Bill Hubbard says:

    Nice piece, John. Very well put and timely too. I read this after I posted my piece, Pompano, Pythons and Protesters today. The last (Protesters) refers to today’s march on Washington by fishermen. I can report now that a friend witnessed the caravan that left Port Canaveral yesterday. It was over 90% commercial, head boat and charter fishermen and seafood processors and very few anglers.

    There was a big push here on the east coast to get anglers on board back in the fall before the council adopted the closures. At first, it was claimed that CCA and Florida Sportsmen backed the proposal to slow down the rebuilding effort on Red Snapper and Grouper. That turned out to be only a rumor and then, a lot of sports anglers were turned off by RFA’s tactics.

    A couple days ago, I was told by one of Sen. Bill Nelson’s staffers that not one member of the florida congressional delegation would sponsor or vote for a bill to overturn the efforts of the South Atlantic FMC and, to her knowlege, there was little or no congressional support from members in South or North Carolina or Georgia as well.

  3. avatar Bill Hubbard says:

    I meant to add that it bothers many Florida anglers, as it does me when an organization purporting to represent recreational fishermen, Recreational Fishermans Alliance(RFA), would so blatantly endorse a commercial fishing effort aimed at reducing conservation and allowing a threatened species to be overfished. I am bothered by that but, certainly ot surprised. RFA has lost a lot of support in the New England area also by some of their recent actions.

  4. avatar Bruce Munson says:

    I too am very concerned that the RFA has sought to join in an effort which would hinder the reduction of the NE Commercial Groundfish capacity. There is simply too much catching capacity available for the current sizes of the stocks. As a member of the RFA, I have written to the organization asking who they are representing these days. I haven’t received any replies from RFA staff. As a recreational fisherman, my balanced personal position is that I want sustainable stock levels. If the regional councils stopped procrastinating and acted when their data told them there was reason for concern, 10 years seemed reasonable to me.

    It appears that the only action I can take with the RFA is to “vote” on their agenda with my wallet, and neither contribute to their PAC nor renew when my membership expires. Other than these two actions, about all I can do is to express my views with the other anglers at my marina this season.

  5. avatar Anthony Jackson says:

    With all due deference to Ms. Jacquelyn O’Neil Willis, why is it that people assume that having overexploited a resource for generations gives them the right to continue to do so indefinitely? Short-sighted is to watch the catch dwindle and to keep hauling in too many fish with no thought for what our children will inherit. Would gutting the last fish be better for our communities than accepting a level of harvest that is sustainable?

  6. avatar David Sikes says:

    Brilliant piece of commentary John. It should be mandatory reading for every RFA follower or anyone on the fence in this matter. Clearly there is much deception and hype surrounding this issue. Your piece is a fresh breath of reason.

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