The discussion, at NEFMC’s April meeting, arose in relation to the Massachusetts District Court-ordered suspension, earlier this year, of Framework 42 (F42) to the groundfish management plan. The framework action was subsequently reinstated, except for provisions relating to the inshore Gulf of Maine 2:1 days-at-sea (DAS) counting system, which became the focus of a lawsuit filed by the Commonwealth of Massachusetts and the State of New Hampshire against the U.S. Department of Commerce (USDC). F42 was enacted in 2006 to prevent overfishing of certain cod and flounder stocks. Massachusetts and New Hampshire, objecting to F42's restriction on fishermen’s government-allotted DAS, claimed the action was arbitrary and capricious. The states said F42 fails to comply with the Magnuson-Stevens Act requirement under National Standard I to achieve optimum yield while also preventing overfishing. The claim related to the so-called “mixed-stock exception.” The exception allows for overfishing of one stock in a multispecies fishery in order to permit harvest of another species at its optimum level. The general idea behind mixed-stock fishing is that harvesting one species of a mixed-stock complex at its optimum level may result in the overfishing of another stock component in the complex. However, according to National Marine Fisheries Service (NMFS) guidelines, NEFMC may decide to permit this type of overfishing if certain conditions are satisfied. In U.S. District Court Judge Edward Harrington’s original January order temporarily suspending F42, he directed Commerce to submit a report on the exception. In February, NEFMC received the NMFS report, which said the exception could not be applied in the groundfishery. NMFS said the exception is superseded by Magnuson-Stevens Act requirements to rebuild overfished stocks within statutory timeframes. In February, NEFMC asked NMFS to reconsider its position. NEFMC said that Congress intended that optimum yield should pertain to the fishery as a whole, and not to individual stocks; and that one stock should not dictate severe constraints on the fishery as a whole while that stock is being rebuilt. But the NMFS follow-up in April said the NEFMC interpretation of congressional intent was incorrect. References to overfishing and optimum yield in the act, NMFS said, do not suggest that rebuilding of an overfished stock can be exempted, and do not pertain to the fishery as a whole rather than from a particular fish stock within a mixed stock fishery. NEFMC expressed dissatisfaction with the follow-up. NEFMC member David Pierce said that NMFS did not provide the analysis that NEFMC had requested. NEFMC had requested an analysis of the potential effect of the exception on F42 and on the recently issued interim rule. “Without that analysis having been done, we don’t have any way to manage the fishery,” agreed council member David Goethel. Pierce suggested the NEFMC should once again disagree with NMFS findings and should inform the court that NEFMC believes the exception should apply. Goethel said a central issue is the confusion inherent in the MSA due to its lack of definition of “stock” and “fishery.” References to optimum yield in the act, he said pertain to fisheries, not individual stocks. If the MSA meant single stocks, he said, there would have been no need to create a multispecies stock exception. The act, he said, assumes a number of stocks are being managed as a unit. “I am very concerned that we are headed down a road that ultimately leads to the destruction of everything,” Goethel said. “Single species management” – as opposed to ecosystem management – “has run its course.” Goethel continued: “We need to be looking at a picture of the fishery. The fishery, in this case, is cod and haddock. Do we need to consider the other stocks? Absolutely. That’s why they put in the mixed stock exception. It gives very specific guidance on how to deal with those so-called minor stocks, to make sure they aren’t driven to economic or biological extinction, listing on the Endangered Species Act, et cetera. But it does not say we have to go through every stock and manage it as a single species for maximum sustainable yield. If we do, we’ve ultimately set ourselves up for failure.” Goethel advocated for informing the court that NEFMC and NMFS have a fundamental disagreement, and requesting a ruling from the court. “This problem has been around since day one,” Goethel said. “It’s an inherent problem that’s never been solved, that’s led to countless issues with management, as this tension between people who think it’s one species and we manage to that one species only, and people who think it’s multiple species and the council says, ‘Okay, these are the major species of the area. These are the ones we need to be careful of.’ ” David Preble, another council member, agreed, noting that single species management has been proven to fail .“I think it needs to be sorted out in the courtroom,” Preble said. The lack of a mixed stock exception will doom the sector concept, Preble said, because a single overfished stock will shut down sectors. “We need to move to ecosystem management,” Preble said. Goethel said the interim rule is a perfect example of where the mixed stock exception could provide flexibility. The rule prohibits vessels from keeping any southern New England winter flounder. “Do people think it means that people will catch zero flounder?” Goethel said. “No, people will throw it over.” In the end, NEFMC voted to disagree with the conclusions of the NMFS report and to inform Harrington that NMFS failed to perform the analyses, consequently leaving NEFMC unable to provide the court with a review. Subsequently, Harrington ruled that NMFS had complied with the court order to seriously consider the mixed stock exception and fully reinstated all of the provisions of Framework 42. |
