Article by Larry Jock
MAFMC Rejects Mid-Season Recreational Fishing Closures
During discussion last on June 10th at the Mid-Atlantic Fishery Management Council's (MAFMC) meetings in New York City, Council members overwhelmingly rejected accountability measures that would have subjected recreational fisheries to automatic shutdowns effective September 1 each year based on the Marine Recreational Fishing Statistics Survey (MRFSS). Citing overwhelming public comment both written and orally in opposition to the measures, MAFMC voted to move the measures to the "Considered but Rejected" category as part of the comprehensive and lengthy Omnibus Amendment currently under consideration.
Left remaining in the document was general authority for the Regional Administrator (RA) of National Marine Fisheries Service’s (NMFS) Northeast Office to close recreational fisheries should landings data indicate a projected overage of the Annual Catch Limit. NMFS exercised similar action last fall when RA Pat Kurkul ordered the shut down the remainder of the black sea bass season based on preliminary MRFSS data which showed recreational fishermen "may" catch more than their allotted quota of sea bass. The 180-day moratorium on black sea bass harvest in the recreational sector prompted RFA to file suit in federal court to challenge NOAA Fisheries (NMFS) authority to make such decisions using "fatally flawed" MRFSS data.
Lawyers representing the Recreational Fishing Alliance in the suit against NMFS challenging the abrupt shutdown of the black sea bass fishery filed a reply brief with Judge Lois H. Goodman in support of RFA’s motion to supplement the administrative record in the case. The RFA's legal team asked the court to include the minutes from the December 2008 meeting of the MAFMC where Northeast Regional Administrator Pat Kurkul advocated for seasonal closures of the black sea bass fishery. The minutes in question document a discussion between Kurkul, the MAFMC and members of the public concerning seasonal closures in the black sea bass fishery. Kurkul and NMFS were out-voted and the 2009 recreational management measures did not include a seasonal closure, but were later pre-empted by an emergency closure.
According to Herb Moore, one of the lead attorneys on the case, the agency's use of emergency rulemaking authority to shut down a healthy black sea bass fishery sets a dangerous precedent. "If the Court determines that NMFS had the discretion to use emergency rulemaking authority to abruptly shut down the black sea bass fishery with no notice and no opportunity for public comment we're in a lot of trouble," Moore said. The RFA's legal challenge, if successful, would help set a precedent to help deter NMFS from making such in-season closures with similar fisheries in the future. "I don't know how you can run a business that depends on recreational fishing if NMFS has that kind of authority," .
In their official written comments to the MAFMC on May 21, RFA Executive Director Jim Donofrio stressed MRFSS cannot be used to provide managers with real-time monitoring of recreational data collection, and any in-season adjustments which would be made during the Mid-Atlantic summer flounder, scup and sea bass seasons that relied on MRFSS data could be devastating to the recreational fishing industry. "These proposed management options would completely disrupt any sense of stability in the recreational fisheries. It would be nearly impossible for fishing related businesses to develop efficient business plans with the uncertainty of mid-season closures pending." Donofrio also noted that such a management plan could frontload participation towards the beginning of fishing season, adding." Anglers would view this scenario as 'race to fish' management similar to red snapper in the Gulf of Mexico which proved to be disastrous for the fishing community."
"For those who think this is just about the party and charter boat industry, this proposed amendment should serve as a wake-up call," Donofrio said after the MAFMC's decision to reject the measures. He explained that many members of the for-hire industry stepped up to oppose the reactionary measures laid out in the so-called Omnibus Amendment, but he stressed that that midseason closures and payback schemes based on notably deficient data would have a devastating impact on the entire coastal community. "This isn't just about the recreational anglers themselves but also the retail businesses they support, the manufacturers who build products that are sold at the retail level, and all the related shoreside industries that depend on anglers coming to the coast to fish," Donofrio said. "It's time to stick up for one another before there's no one left to defend," he added.
The Omnibus Amendment would modify all fishery management plans to enact provisions of the Magnuson Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSA) regarding Acceptable Biological Catch (ABC), Annual Catch Limits (ACL) and Accountability Measures (AM). The MSA reauthorization had also mandated that certain key components of MRFSS be fixed by January 1, 2009, a full 2 years before the ABC, ACL and AM provisions contemplated in the Omnibus Amendment were to be utilized. The RFA says that MRFSS is neither accurate nor reliable enough to implement these types of accountability measures and annual catch limits in the recreational sector, adding that it is completely inappropriate for the MAFMC to move forward with the section of MSA that deals with annual catch limits and accountability measures while ignoring critical sections of the federal law that deal specifically with recreational data collection improvements necessary.
Jim Hutchinson, RFA's Managing Director and President of the New York Sportfishing Federation said that recreational paybacks and midseason closures as outlined in the plan would have a catastrophic impact on the recreational fishing communities if activated using MRFSS. "It's been over three years since Congress told NOAA Fisheries and the Department of Commerce to fix MRFSS, and we are still waiting for the results," Hutchinson added.
The RFA points to Section 109-479 of MSA requiring the Secretary of Commerce and NMFS to establish a program to improve the quality and accuracy of information generated by MRFSS, calling for the improvements to be implemented within 24 months. According to MSA, the new program should've been implemented 18 months ago, which is when the Secretary of Commerce was required to submit a report to Congress detailing the progress made toward achieving those goals and objectives. The RFA said that none of these deadlines or requirements have been met.
Coincidentally, there was one piece of language in the Omnibus Amendment which did have the RFA lending support under section 5.0 which is titled Description of Process to Modify Actions, where it states "Flexibility is imperative and must allow for timely modifications give the dynamic nature of fisheries and the environment."
"RFA concurs with the statement contained in this section," Donofrio said in the written testimony. "Many of the problems we face in the recreational sector relative to the lack of access to rebuilding or rebuilt stocks can be linked to the lack of flexibility in MSA. While fisheries science has drastically improved in the last 10 years, numerical modeling is still an imperfect science. More sophisticated models have the ability to give managers a more refined range of outcomes in response to their management choice. However, much of fisheries management is trial and error due to the dynamic nature of the marine environment and the often unpredictable social component of the recreational fishery. For this reason, it (is) paramount that flexibility be explicitly included in the Omnibus Amendment."
The full amendment will be voted on at the next MAFMC meeting scheduled for August in Philadelphia.
