Bad Prece­dent


Saltwater Sportsman - - Table Of Contents / Departments - By Rip Cun­ning­ham


But, like it or not, the process has been given a lot of thought over the years. It has been poked, prod­ded and tin­kered with to make it a lit­tle bet­ter each time. Prob­a­bly ev­ery­one in the world of fish does not like some part of it, and maybe that makes it close to the right sys­tem. For cer­tain, it is a lot bet­ter than mak­ing de­ci­sions on the fly. A cou­ple of months ago, I think that was what hap­pened with sum­mer floun­der. The big-pic­ture problem is that this ac­tion may have set a bad prece­dent.

For recre­ational fish­ing, at least 90 per­cent of the catch, in num­bers of fish, hap­pens in state waters. Now, this is just an ed­u­cated guess, but I doubt I am far off the real num­ber, which could change if you use pounds of fish caught rather than the num­ber of fish. Why is this im­por­tant, since fish do not rec­og­nize our artificial bound­aries? It is im­por­tant be­cause of the man­age­ment sys­tems we have in place. The fed­eral gov­ern­ment, through the re­gional fish­ery man­age­ment coun­cils (RFMCS), man­ages fish out­side state waters. The ma­rine fish­eries com­mis­sions (MFCS) man­age all the fish that swim along the coastal waters up to 3 miles out. Since they man­age the vast ma­jor­ity of the fish that make up the recre­ational catch, their de­ci­sions are crit­i­cally im­por­tant to the recre­ational fish­ing in­dus­try.

Cre­ated in the 1940s, the MFCS on the Pa­cific, Gulf and At­lantic coasts had a goal to co­op­er­a­tively man­age all the fish species that mi­grate through their state waters. The con­cept makes all kinds of sense, but the im­ple­men­ta­tion has al­ways been a lit­tle harder. The big­gest is­sues through the years have been bas­ing the de­ci­sions on sound sci­en­tific in­for­ma­tion and keep­ing the po­lit­i­cal med­dling to a min­i­mum. As the years went by, an­other issue kept com­ing up. That was how to keep states’ feet to the prover­bial fire when they did not like an MFC de­ci­sion and wanted to set their own reg­u­la­tions.

On the At­lantic Coast, it took 50 years for this issue to get ad­dressed. In 1984 and 1993, the sign­ers of the At­lantic States Ma­rine Fish­eries

The fish­eries man­age­ment sys­tem in place in the U.S. is not per­fect. I have said that be­fore.

Com­mis­sion com­pact pro­posed, and Congress passed, two im­por­tant pieces of leg­is­la­tion: the At­lantic Striped Bass Con­ser­va­tion Act (1984) and the At­lantic Coastal Fish­eries Co­op­er­a­tive Man­age­ment Act (ACFCMA, 1993). Th­ese laws demon­strate the suc­cess that can be achieved when state reg­u­la­tors, fed­eral agen­cies and Congress join hands to re­build coastal fish­eries. Both acts rec­og­nize the trans-bound­ary na­ture of fish­ery re­sources and the ne­ces­sity of the states and fed­eral gov­ern­ment to im­ple­ment con­sis­tent reg­u­la­tions. As a re­sult of the acts, all At­lantic Coast states that are in­cluded in any ASMFC man­age­ment plan must im­ple­ment the pro­posed con­ser­va­tion pro­vi­sions of a plan or the Sec­re­tary of Com­merce (un­der the ACFCMA) may im­pose a mora­to­rium for fish­ing in the non­com­pli­ant state’s waters. The re­cov­er­ies of a num­ber of im­por­tant At­lantic stocks are all a re­sult of th­ese re­quire­ments, which im­ple­mented tough man­age­ment ac­tions through­out the stocks’ mi­gra­tory ranges.

This past sum­mer, the ASMFC pro­mul­gated re­stric­tive new reg­u­la­tions for sum­mer floun­der in an ef­fort to turn around a de­cline in its spawn­ing stock. Im­pact­ing quota and catch in a neg­a­tive way is rarely ac­cepted qui­etly. Part of the process al­lows states to im­ple­ment con­ser­va­tion-equiv­a­lent reg­u­la­tions, which might not be ex­actly the same as pro­posed, but will have the same re­sult.

For sum­mer floun­der, the state of New Jersey pro­posed what it con­sid­ered to be con­ser­va­tion-equiv­a­lent reg­u­la­tions. How­ever, the ASMFC Tech­ni­cal Com­mit­tee as well as the ASMFC as a whole dis­agreed and found New Jersey out of com­pli­ance. The fi­nal ar­biter is the SOC, un­der nor­mal cir­cum­stances ad­vised by NOAA Fish­eries. The fi­nal de­ci­sion ac­cepted the New Jersey reg­u­la­tion and re­versed the ASMFC find­ing of non­com­pli­ance. My in­ves­ti­ga­tion in­di­cates that this de­ci­sion was made at the sec­re­tar­ial level, not the nor­mal process, and may have been a po­lit­i­cal de­ci­sion rather than a sci­ence-based de­ci­sion. This is not the first time the SOC has been asked to make a de­ci­sion, but it is the first time the de­ci­sion has been made in this way, and it may be chal­lenged in court.

The problem is now there is a prece­dent that says to any state not lik­ing an ASMFC reg­u­la­tory de­ci­sion that ap­peal­ing di­rectly to the SOC may re­sult in a dif­fer­ent out­come. Is it pos­si­ble the SOC will make the right de­ci­sion? Sure! How­ever, when the de­ci­sion is not based on sci­ence, it is less likely.

There are a lot of fish­ing folks in New Jersey who think this was a bril­liant de­ci­sion. I won­der how bril­liant they would think it was if the de­ci­sion had given all the ex­tra fish to New York or North Carolina? Per­haps not so bril­liant.

SEA CHANGE: A re­cent floun­der rul­ing re­sets the man­age­ment pro­to­col.

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