Bad Precedent
BREAKING RANKS WITH PROTOCOL HAS ITS PERILS.
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.