First enacted in 1976, the Magnuson-Stevens Fishery Conservation and Management Act (MSA) is our nation’s primary fisheries law and it task the National Marine Fisheries Service (NMFS) with preventing overfishing, rebuilding fish stocks, and increasing the socioeconomics of both commercial and recreational fishing. MSA was originally shepherded through Congress with major support from Atlantic Coastal communities in order to extend U.S. jurisdiction of coastal waters out to 200 miles, thereby prohibiting foreign fishing fleets from decimating our coastal fish stocks.
In 2007, MSA was again reauthorized and updated to include regulatory language that only a lawyer could truly appreciate. First, it mandated the incorporation of annual catch limits (ACL) in both commercial and recreational fisheries, and then added accountability measures (AM) to ensure those limits were met. Think about it, who in their right mind could justly argue against catch limits and accountability? Ah, but it’s these legislative nuances, crafted by legal experts, which have wreaked havoc on our recreational fishing community over the past 17 years.
Consider, the commercial sector brings their haul back to port, where in theory every single pound of flesh is weighed, reported, and tracked via cash exchanging hands. In that scenario, an ACL is easy to monitor; it’s all pound-for-pound tracking. But many of us in the recreational fishing community have argued since 2007 how we’ve been forced into a bit of double jeopardy in our sector; NMFS basically tells us what our season, size and bag limit has to be in order to maintain our ACL, and then they use random survey methodologies to hold us accountable, often telling us how their surveys showed we overfished the very limits that they assigned. With no pound-for-pound monitoring of recreational harvest, we end up getting punished twice, first with a strict ACL, and then with draconian AM paybacks to follow.
On September 5, Judge Beryl A. Howell of the U.S. District Court in Washington DC seemed to agree with our longstanding argument. In the court’s findings on a civil action brought by the Natural Resources Defense Council (NRDC) “on behalf of its adversely affected members,” Judge Howell found that tracking recreational fishing is significantly more difficult than monitoring commercial fisheries “given the large number of participants and access points and lack of mandatory catch reporting.” By the way, go to TheFisherman.com and search “Personally Injured Lawyer” to meet NRDC’s “adversely affected” legal eagle in this since dismissed case!
“Rather than attempting to account for every fish caught in real time or even weekly, NMFS conducts angler surveys through the Marine Recreational Information Program (MRIP),” the judge noted, adding “The MRIP survey intercepts a random small subset of recreational anglers, determines the number of fish they have caught and the amount of fishing effort, then uses this limited data to extrapolate to annual estimates of total recreational catch.”
“Unsurprisingly, this survey-based system has limitations,” wrote judge Howell, further reinforcing that fact that survey sampling like MRIP “covers only a small proportion of anglers and relies on recall as well as direct observation of catches after the actual catch has occurred, which tends to result in catch data that are more uncertain, more sensitive to details of survey design, and less timely relative to the data collected for commercial fisheries.”
The NRDC lawsuit against the Department of Commerce and their intervening defendants at the American Sportfishing Association claimed how the Mid-Atlantic Fishery Management Council’s Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan failed to comply with the ACL requirements in MSA. That framework comes in the form of the council’s new harvest control rule, implemented in an attempt to bring more recreational fairness to fisheries management.
In this case, NRDC claimed that the harvest control rule violated MSA; a federal judge disagreed. Thus, anglers are finally winners in federal court, while NRDC and their adversely affected members are losers. Case closed, pending appeal.
See more: ASA Highlights Legal Validation of Alternative Management Approaches for Recreational Fisheries
