Pigs in Trough
The Abuse of Optimum Yield in the MSA and Single Species Management
By Erik Velsko
December 6, 2022
The Magnuson-Stevens Fisheries Conservation and Management Act (MSA) was put into legislation in 1976 to Americanize our federal fisheries. The MSA contains ten national standards that are applied and interpreted in the management and creation of fisheries policy. These ten standards seek to strike a balance between economic and social aspects of fisheries and communities. There is no formula for balancing the ten national standards, and as a result we have seen some standards prioritized over others.
Recent Facebook and Twitter accounts dedicated to shedding light on bycatch waste has led to public scrutiny and distrust in the entire management process. Tension between fishing sectors has never been greater; however, I believe the focus and message has been muddied. Fishermen on the grounds are just doing their jobs, and they don’t make the rules. But who does make the rules and who has interpreted the MSA to craft those rules and implement them?
The root of the bycatch argument needs to be anchored in the interpretation of the MSA. Is the current interpretation of MSA what our late Senator Ted Stevens had in mind when crafting this piece of landmark legislation? Or have we let the influence and power of the biggest and most successful fisheries, armed with their lawyers and lobbyists over the last 40 years, steer the interpretation of the MSA in a direction that benefits them the most? Since case law is predicated on previous interpretations of the law, fisheries managers find themselves in a situation where they are damned if they do and dammed if they don’t. The Council process works well in that it is a transparent public process. But it erodes quickly when the looming threat of a lawsuit hangs over the heads of decision makers.
Let’s look at a very recent example to help illuminate the issue.
In 2017 the highly regarded, sustainability award-winning pollock sector of the Bering Sea began encountering large amounts of sablefish (blackcod) on the fishing grounds when targeting pollock in their nets. The Bering Sea pollock trawl fleet does have a small allocation of blackcod that normally would accommodate fluctuations in biomass of sablefish; however, because this bloom was so large the fleet exceeded its allocation to the tune of 110% of their final allocation that year.
That was the first warning bell. Then alarms rang for the next four years with little to no management action: in 2018 145%, in 2019 357% and in 2020 reaching its peak of 517% of the trawl blackcod allocation in the Bering Sea. Concerned stakeholders provided managers with public testimony and written comment letters every year during these overages which resulted in no action. In 2021, the blackcod bloom was moving out of the pollock fishery, but at this time overall allocations were also increasing, so only 145% of their allocation was taken.
Finally, by 2022 sablefish incidental catches have stabilized and the latest NOAA report shows 96% of the trawl blackcod allocation harvested as of November 10. This phenomenon and the relationship between the increased sablefish showing up in the pollock fishery highlight not only the large year-classes of fish entering the fishery, but also reinforces the inability or unwillingness built into the current management structure at addressing a clear and obvious problem.
In 2020, the sablefish trawl allocation was set at 861 MT or 1,898,161 lbs. The fleet extracted and discarded 3591 MT or 7,916,719 lbs on top of their actual allocation. This amount of sablefish overage was equal or larger to three of the four regulatory areas in the Gulf of Alaska in 2020 that black cod fishermen had invested in and relied on to sustain their operations. Was the pollock fishery shut down or curtailed as a result of these overages? No. In fact, the fleet was accommodated for the overages, and management actions were implemented to ensure that possible excessive overages in the future would never affect them again. This was all done through interpretation and guidance of the MSA in plain sight through the Council process, and is almost assuredly legally defensible.
The only way a fishery can be limited or shut down as a result of its impacts on another fishery is through overfishing. Each species that the Council manages has an OFL (Overfishing Limit). When these huge blackcod overages became apparent in the Bering Sea pollock fishery, the fleet was dangerously close to the OFL for that region. Realizing the severity of reaching the OFL for sablefish and the possibility of putting the wealthiest and most powerful fishery in the world in jeopardy, the Council in conjunction with the SSC (the science arm of the NPFMC) combined all the sablefish OFL’s for each region in Alaska into one overarching OFL.
This action makes it nearly impossible to ever reach the sablefish OFL again even though the 7.9M lbs of overage occurred in a tiny sliver of the Bering Sea. The justification for this was that sablefish should be managed as a single stock; however, the trigger for this change was the almost 8 million pounds of sablefish overage in the pollock fishery. I’m not sure anyone can deny that, although some may try to further justify it by saying that the SSC had already discussed combining OFL’s in previous meetings. Yes, this is true but no action occurred until the Bering Sea OFL was nearly reached by a sector incidentally catching fish that weren’t targeting. Essentially, a negative consequence, and all the unforeseen and under-analyzed effects of the mostly juvenile blackcod deaths spurred a positive outcome for the sector that caused it.
Was this the future management that the late Senator Ted Stevens envisioned when crafting the MSA? Can a sector become so powerful and important that they can essentially do no wrong? Are economics now the sole driver in putting constraints on large fishing sectors? Rather than punishing or disincentivizing the pollock fleet to move off the incidental catch of sablefish the goal posts were moved. As many trawl lobbyists stated during public testimony at numerous Council meetings, if their clients moved to areas of less blackcod they would encounter more salmon which are a “higher bycatch priority” than sablefish.
Essentially, maximizing the pollock resource is so important that even though it could be impacting other fishing sectors there was nothing that could be done. Those of us who spoke out against the ridiculous and irrational waste of the overages were deemed radicals for even attempting to devise a solution to the problem. It was implied by this uber-powerful sector that managers should have no willingness to deal with the inconvenience of another bycatch species as they already had salmon, halibut, crab and herring to deal with; therefore, we should keep our mouths shut and not worry about the downstream effects of exceeding an allocation by five times its amount. Again, managers were damned if they did and dammed if they didn’t.
Unfortunately, the sablefish overage is just one example of a laundry list of problems that are occurring in the federal fisheries off Alaska’s coasts. They are caused by one-sided interpretations of the MSA, specifically National Standard 1, which orders manager to achieve Optimum Yield (OY).
This has been the single biggest driver of resistance to adequate management measures to protect lower-volume and, at times, higher value species. The standard states,”Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.”
In practice, National Standard 1 appears as the single most important aspect of managing a fishery, and all other factors are deemed less important. It prioritizes higher-volume targets over lower volume fisheries, some of which are targeted by small-boat fleets that bear the burden of conservation and become collateral damage for ensuring that OY is met for big volume harvesters. Without hard caps or management measures with real teeth, policy makers have no power under the current interpretation of MSA to slow down the industrial assault of Alaskan waters.
What is lost in this assault? The economic, social or historical importance of the fisheries for which Alaska is known for -- halibut, salmon, crab, herring and sablefish.
Why is this now the unintended reality of federal fisheries management in Alaska? As the wealth of some of America’s most powerful fisheries increased, their excessive lobby influence at the state and federal levels have reached epic proportions. Entire branches of fisheries science are funded by large corporate entitles that also receive a tax-break for this funding, but undoubtedly have an agenda -- to keep an endless supply of cheap seafood protein flowing around the globe. Influence means everything in politics and politics unfortunately dictate management in many instances.
So, what does National Standard 1 actually mean, and is it being interpreted as it was designed? How do you balance the needs of one or two insatiable sectors extracting billions of pounds of protein per annum for massive profits in contrast and sometimes at the expense of the thousands of affected Alaskan communities, small boat fishermen and subsistence users? The justification lies in National Standard 1 and Optimum Yield. Unfortunately, many of us now realize that Optimum Yield is an outdated economic concept that has been abused through forty-plus years of lobbying effort into the interpretation we now see used in our management process.
The Council will set the total allowable catches (TAC’s) of all groundfish species for 2023 at the December North Pacific Fishery Mangement Council (NPFMC) meeting in 2022. Preliminary data show a potential increase of over 50% for the Bering Sea pollock fishery (an over 1 billion pound increase) in 2023 and healthy, and increasing quotas of yellowfin sole and other low-value flatfish.
There is no denying that pollock and other groundfish trawl fisheries are well managed, but has it been managed at the expense of smaller Alaskan interests? Using the blackcod example one would say yes. Let’s not forget about struggling king and chum salmon in Western Alaska, halibut and the closed Bering Sea opilio and king crab fisheries. Single-species management was not the intention of the MSA, and National Standard 1 and Optimum Yield are beginning to skate on very thin ice in the North Pacific.
Erik Velsko was born and raised in Homer, Alaska and has been involved in the commercial fisheries since his early teenage years. He has spent extensive time fishing fixed-gear in the Bering Sea and Gulf of Alaska, and is a longtime Bristol Bay salmon fisherman.