By Capt. John McMurray

Summer flounder or “fluke,” (Paralichthys dentatus), is a relatively easy to catch, great-eating fish. Tip a bucktail jig with a piece of squid or a spearing, bounce it off the bottom and you’re in business. They don’t mind the summer’s heat or heavy boat traffic. Thus they are the primary target of the Mid Atlantic’s summer party/head-boat business, and are highly sought after by commercial draggers looking to make a buck. Fluke contribute greatly to coastal economies in the Mid Atlantic, but by legal and scientific definitions, they are over-fished.

The stocks have improved. Thanks to tighter commercial restrictions and recreational limits, spawning stock biomass is four times what it was just 10 years ago. But more restrictions are mandated by the 1996 Sustainable Fisheries Act, which required a 10-year stock rebuilding plan for all overfished species. Fluke are supposed to have recovered by 2013. Some fishermen believe that because of increasing populations they should not be further regulated. Undoubtedly these cutbacks will cause real economic pain, but the pain may temporarily be necessary if the conservation goals are to be achieved. It’s a highly divisive issue.

Background

In 1996, when Congress enacted the Sustainable Fisheries Act, the Atlantic States Fisheries Management Council (ASFMC) amended the summer flounder management plan to meet the federal requirements. ASFMC tried to balance rebuilding with the economic impacts on fishermen, and political pressure put too much emphasis on the latter. As a result, when the 1999 quota was set, it only had an 18-percent chance of successfully rebuilding the stock within the timeframe established by law.

The Natural Resource Defense Council (NRDC) sued, demanding that the rebuilding plan have a reasonable chance of success. The suit brought a landmark decision that required management plans to have no less than a 50-percent chance of rebuilding a stock within the deadline. NOAA Fisheries scientists determined that they could timely rebuild the stock by halting overfishing. The implications for both sectors prompted loud protests from the commercial and recreational fishing industries, but meaningful size and bag limits were imposed.

They appeared to be working, but the recovery now seems to have stalled, with the summer flounder population only 53 percent of what it would be in a “fully restored” stock. While some question the data used to establish the target stock size, it has been peer-reviewed 16 times over the last 23 years, while critics have yet to produce even a single peer-reviewed study in support of their position.

“The quality of the scientific data on fluke is among the best for mid-Atlantic species” notes Atlantic States Marine Fisheries Commission Executive Director, Vince O’Shea.

Case for Caution

The current predicament could have been avoided if managers practiced some caution instead of bowing to the fishing industries pressure to harvest more fish. The biologists recognize that their various estimates include a margin of error. Because of that, there is very real risk involved when managers set harvest targets at the highest permissible level, as has long been done with summer flounder.

For many years, despite clear signs that summer flounder were being overfished, managers pushed by political pressure to maximize harvest and minimize economic pain, failed to take a precautionary approach, optimistically setting catch limits at the highest levels allowed under the rebuilding guidelines, thus overfishing occurred frequently as the model failed to account for natural fluctuations and bias in the models.

“If the science is uncertain, why on earth would the ASFMC cling to constantly fishing at maximum sustainable yield?” asks Massachusetts angler Mike Flaherty. “When the data is wrong the surprise is rarely pleasant.” In light of the perceived and real uncertainly in the science, managers should have been exercising caution with fluke. But they did not and still refuse to do so.

Commercial fishers and a subset of the recreational fishing industry would like to see managers lower the rebuilding target, without any peer-reviewed science to support their agenda. The provisions of the new Magnuson Act that require fisheries decisions to be based on the best available science thus stand in their way. So this subset of the recreational fishing industry joined ranks with the commercial fishermen, and attacked the law itself. By doing so, they further decreases the likelihood of fairer allocations of the public trust resource for family-level anglers. And by labeling groups such as NRDC as “environmental extremists,” or resorting to absurd accusations that those who support the existing federal law are determined to end all fishing, they undermine their own credibility, by association the credibility of the recreational fishing community as being conservation-minded, and the potential for partnership on local habitat and water-quality campaigns with environmental organizations.

Current events:

In 2007, recreational catch targets for summer flounder were exceeded by all but two states. "They were all over except Virginia and Massachusetts. They were 20 to 60 percent over." said Jessica Coakley, who coordinates summer flounder management plans for the Mid-Atlantic Fishery Management Council (MAFMC).

In July, the Summer Flounder Monitoring Committee released a preliminary stock assessment that recommended a 32 percent reduction in summer flounder harvest. However, despite the past history of overfishing, NOAA Fisheries bowed to pressure from the fishing industry and, again ignoring scientific advice and known biases in the model, adopted the riskiest option presented to them, adopting a quota that virtually assures that overfishing will recur in 2008.

Late in October, Bill Hogarth, then the Assistant Administrator of NOAA Fisheries, sent a letter to the Chairman of the Mid Atlantic Fishery Management Council (MAFMC), threatening a shutdown in federal waters. "Let me stress that if the measures implemented by the states to manage the 2008 recreational fishery are not effective to constraining recreational harvest limit, NMFS is prepared to close the summer flounder recreational fishery in the exclusive economic zone."

Is the reaching the rebuilding target by 2013 even possible?

Under pressure from East Coast legislators, Congress extended the rebuilding period for fluke by three years, to 2013, when it reauthorized the Magnuson Act in 2006. Commercial and some recreational fishing industry groups question whether it is possible to reach the rebuilding by then, claiming that there are factors other than harvest affecting summer flounder mortality, including natural predation, competition for food, pollution and the loss of estuarine breeding grounds. They assert that such factors are not taken into account when creating rebuilding targets, which they frequently call “arbitrary,” “pie in the sky,” “unscientific” etc.

Tony Bogan, president of the United Boatmen of NJ and NY and one of the founders of Save the Summer Flounder Fishery Fund told the Asbury Park Press, “I'm no scientist, but I personally think it is unrealistic to believe that the stocks can be rebuilt to that level." But it is the scientists that contend that stocks can be rebuilt if fishing mortality is reduced. "Even at these recruitment levels, the stock has the potential to go to 197 million pounds," said Coakley. “Recent stock growth, despite growing fishing pressure and high fishing mortality rates, suggests that the current environment can support a large summer flounder population.”

A 10-year rebuilding requirement is indeed “arbitrary” in the strictest sense. But the label could just as well be applied to any rebuilding deadline. A 20 or even a 100-year timeline would be no less “arbitrary” than one of 10 years, and Council -members, seeking to placate their constituents, would be unlikely to work any harder to recover a stock in 20 years than in 10. Delays in rebuilding only reduce and delay the long-term economic gain that may be realized by completely recovering the stock.

Magnuson Adds Pressure

When the Magnuson Act was reauthorized in 2006, new language explicitly directs fishery management councils to heed the advice of Science and Statistical Committees regarding maximum catch levels. Such reform in the law was long sought by environmentalists and conservation-minded anglers, who argued that the provision was needed to alter the culture of 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. Now, because those commercial and recreational fishing industry organizations did not get what they wanted during the Magnuson Reauthorization (essentially the right to continue to overfish and to disregard the best available science when setting regulations) they have been putting heavy pressure on decision-makers to add what they call “flexibility” to Magnuson’s rebuilding provisions.

In November, Rep. Walter Jones of North Carolina introduced the Flexibility in Rebuilding American Fisheries Act (HR 4087). Then in mid February, Rep. Frank Pallone of New Jersey sponsored a similar bill (H.R. 5425) the Flexibility in Rebuilding American Fisheries Act of 2008. Both bills would allow fisheries managers to extend the 10-year deadline to minimize negative impacts on fishing communities while stocks are rebuilding. The two bills would essentially reinstate the pre-1996 approach to fishery management, when “economic impact” was more important than sustainable fishing.

Historically, by drawing out rebuilding periods and permitting continued overfishing, managers have done nothing but create worsening situations. A strong negative example is the collapse of New England groundfish stocks, and of course the striped bass success story is a testament to what can be achieved through science-based management. The legislation introduced by both Jones and Pallone would merely cloak delay in the euphemism “flexibility,” and would allow managers to avoid both lawsuits and the requirement to recover fish populations. HR 4087 Sponsor, Rep. Barney Frank, a strong ally to his commercial fishing constituents in New England and who presided over the New England groundfish collapse, wrote. “If the same rebuilding targets can be met in, say, 13 years instead of 10, without compromising the ultimate rebuilding goal, who is hurt?”

One can see how this plays out in the real world, because the latest reauthorization of the Magnuson Act did exactly what Congressman Frank suggests, changing the rebuilding deadline for summer flounder from 10 to 13 years. What did fisheries managers do with such new-found “flexibility?” Exactly what they did before. They ignored the recommendations of their own scientists and chose the riskiest option available to them, even though they were warned that overfishing would probably result.

“Managers and industry are not doing anything with the extra 3 years, except complaining that it doesn’t provide enough time,” noted Coastal Conservation Association New York Chairman, Charles Witek. “The longer the rebuilding period, the longer people will procrastinate. If you gave them fifty years to rebuild the stock, they would still opt for the largest short-term harvest, and in year 47 we would be right where we are today, with the industry people complaining about their situation and demanding that more “flexibility” be written into the law.”

Even a casual reading of proposed “flexibility” legislation reveals that the wording is so ambiguous that it would be nearly impossible to implement any finite time frames for any fishery rebuilding schedule. Given the background leading up to the legislation, one could make the case that such ambiguity is just what the sponsors intended. Current law already allows exceptions to the rebuilding deadlines when they are based on sound science, such as when the biology of a fish or environmental conditions doesn’t make a 10-year rebuilding period feasible.

The New Jersey recreational and commercial fishing industries which are the primary proponents of “flexibility” legislation, have frequently and publicly called the rebuilding target for summer flounder "unrealistic" And "unattainable." “Think about that for a moment” says Flaherty “If they are right, then how on Earth can the bill that they and Congressman Frank are supporting not lead to "open-ended" rebuilding schedules if the rebuilding goal can never be achieved anyway?”

While the reauthorization of the Magnuson Act late in 2006 closed some of the loopholes that were often used by industry groups to delay the steps necessary to rebuild overfished stocks, it is clear that “flexibility” legislation would open up a whole slew of new ones.

"My concern is that the temptation to push back rebuilding will perpetuate management based on politics rather than on science, and that rebuilding would become elusive," said Dan Whittle, director of the Southeast oceans program at Environmental Defense Fund.

The system has worked:

Despite the loud criticism, few could argue that the current management plan is succeeding. The decline in the summer flounder population bottomed out in the late 1980s and early 1990s, and spawning stock biomass has increased fourfold. In addition, unpopular and painful as they may have been, regulations have led to the expansion of the age and size structure of the summer flounder population, as evidenced by the increased abundance of large fish.

"We're on the right track. We've rebuilt a lot.” Coakley said. “There's a lot more fish out there, and they're older fish." This confirms how low this population was due to massive overfishing in the 1980s. Now, because of limits on overfishing, the stock has begun to rebound.

A point that gets missed by critics, who tend to demonize what they call “the environmental industry”, is that this progress wouldn't have occurred without those in the environmental community holding the National Marine Fisheries Service legally accountable for conserving and rebuilding fish stocks.

“Back in 2000, a lawsuit led by the Natural Resources Defense Council, led to a court decision that forced NMFS and the Mid-Atlantic Fishery Management Council to significantly lower the annual catch quota.” wrote Flaherty in a letter to South Coast Today. “It worked!”

Conclusion:

For decades, anglers have rightfully criticized commercial interests for pursuing a course of action that has diminished fish populations on every American coast. Conservation-minded anglers are concerned that a portion of the fishing industry are partnering with these very same commercial fishermen and are resorting to the same goals and tactics used to maximize harvest despite what the science recommends.

It is all too easy to turn a blind eye to conservation when the pain hits close to home. But, congress DID mandate 10 years to rebuild overfished stocks, including summer flounder, and the best available science tells us that such rebuilding is doable. Given where we are today, that is inevitably going to cause some belt-tightening and is going to hurt some local economies. Yet, many experts believe that the alternative, weakening current fisheries law, will cause far more problems for fish and fishermen in the long run.

SWA