WHEN DOES GOVERNMENT BECOME ACCOUNTABLE?

In our first installment of the Absurdity of Fisheries Management series, the Recreational Fishing Alliance (RFA) shined the spotlight on the "fatally flawed" Marine Recreational Fishing Statistical Surveys (MRFSS) which the Department of Commerce is using today to essentially shut down 'commerce' in the recreational fishing industry.

Regrettably, the National Marine Fisheries Service (NMFS) successfully argued before a U.S. District Court judge in 2011 that Congress didn't actually intend for them to really fix the recreational data collection program by time-certain deadline of 2009. In the words of the Honorable James S. Moody, Jr. who found in favor of the defendant (NMFS), "Nowhere in the MSRA (Magnuson Stevens Reauthorization Act) or its legislative history does Congress indicate its intent, as the Plaintiff argues, for the improved MRFSS to be completely finalized with all phases of the MRIP (Marine Recreational Information Program) fully implemented by January 1, 2009."

Actually, Judge Moody agreed with NMFS that meeting the 2009 deadline for the implementation of recreational data collection improvements would be "unrealistic and impossible," further elaborating that Congress never gave an express meaning of the word "implement."

Thomas Jefferson said, "Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." But make no mistake, when Congress reauthorized Magnuson in 2006, they were told explicitly what would happen when they phrased their language as they did.

"THE BIGGEST MISTAKE WE CAN MAKE"
Signed into law by President Bush on January 12, 2007, the Magnuson-Stevens Act also changed the requirements to monitoring and adjusting seasonal fishing quotas by requiring any fishery management plan prepared by Council or the Secretary of Commerce to "establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability."

The deadline for implementing these new annual catch limits (ACL) was 2010, the year after MRIP was supposed to replace MRFSS.

According to NOAA, an ACL is "the level of annual catch of a fish stock or stock complex that serves as the basis for invoking accountability measures," whereas accountability measures (AM) are the management controls that prevent annual catch limits from being exceeded, which includes future mitigation. In other words, an ACL is not just a quota, it's a rigid numerical limit based on pounds of fish; if the ACL is exceeded or projected to be exceeded in any way, shape or form by the recreational sector, an AM is the punishment that gets meted out.

"Basically this means that if the recreational data collection shows anglers overharvested more of the seasonal quota than we were originally allowed, we'll have to pay that overage back in future quota, a penalty before a new season can even start," said Jim Donofrio, executive director of the Recreational Fishing Alliance (RFA). "Our argument in 2006 in opposition to these ACL's and payback measures is the same today, that fisheries managers cannot meet exact weights and measures required under this scheme by simply using old random survey data."

While commercial fishermen in theory have nearly exact accounting of every pound of fish that's brought back to dock and sold, recreational anglers are monitored using random phone calls and a dockside sampling efforts. Established in the 1970's as a tool to monitor angler trends, MRFSS is still being used today to gather 'effort and participation' data by calling phone listings in coastal phone books coupled with 'catch per angler' statistics gathered at a handful of dockside locations.

"Most of our fishermen have never been called at home nor have they been surveyed at the dock, yet MRFSS is still in place as the tool by which NOAA meets the rigid ACL and AM definitions," Donofrio said. "Of greater concern, as more information comes to light in way of US Fish and Wildlife Service data and state license/registry programs, there is undeniable evidence that MRFSS habitually and significantly overestimates the number anglers," Donofrio continued.

As RFA warned from the beginning, the rush to meet time-certain deadlines as required by federal law was ripe with obstacles. Where the U.S. court system has agreed that the deadlines for NMFS to improve the science and data in coastal fisheries were "unrealistic and impossible," the Department of Commerce along with stakeholders at the regional council level have been given no such flexibility to manage around rigid, hard and fast ACL requirements.

RFA met recently with NMFS staffers at a meeting in Gloucester, MA. When asked directly why the fisheries agency has not been able to integrate the angler registry database into the new recreational data collection efforts as required by law, one high-level NOAA Fisheries policy advisor said "the biggest mistake we can make is moving ahead too quickly."

Back in 2006 when the National Academy of Sciences found the recreational data collection methodologies used by NMFS to be worthless in terms of real-time monitoring, it was determined that the random nature of the survey had "serious flaws in design or implementation and use inadequate analysis methods that need to be addressed immediately." Obviously, the word 'immediately' holds a different sense of urgency for those who work around the Beltway.

"It will never be perfect," said the NOAA official recently of the random survey methodologies, an argument apparently held by our U.S. court system. Though random angler surveys will never meet the rigid requirements of ACLs and AMs, saltwater anglers can sit back and enjoy the "metaphysical subtleties" of life which our founding fathers warned can mean everything or nothing at all, depending on your perspective.

Because of the complete absurdity of fisheries management and hopeless inadequacy of our federal government, essentially what we've learned in the recreational fishing community is that you will get nothing and you'll like it. But hey, at least we are not rushing into anything!