Minimum Size Restrictions Are a Problem for Fisheries, Is Litigation the Solution?

Date01 June 2018
6-2018 NEWS & ANALYSIS 48 ELR 10457
Minimum Size Restrictions
Are a Problem for Fisheries,
Is Litigation the Solution?
by Judah Lieblich
Judah Lieblich is a former Australian lawyer who has practiced in litigation and environmental
law, and current J.D. student at Florida State University College of Law.
Fisheries are tightly regulated u nder the broad Mag-
nuson-Stevens Act,1 yet sh stocks widely remain
either stagnant or in decline.2 Current ma nagement
tools are failing to ensure that sh populations maintain
the reproductive capacity needed to recover.3 One of the
oldest and most widely used tools is minimum size restric-
tions.4 Scientic evidence is mounting that minimum size
restrictions are undermining , rather than supporting, the
stability and recovery of sh populations.5 Minimum size
restrictions require that undersized sh be discarded, even
though many discarded sh subsequently die and do not
benet sh populations.6 e high mortality of discarded
sh means that minimum size restrictions contribute to
bycatch.7 Additionally, encouraging the removal of only
the largest individua ls is having cascading negative impacts
on sh numbers because large sh are the best reproduc-
ers.8 To improve shery management, the continued use of
minimum size restrictions must be questioned.9
1. 16 U.S.C. ch. 38 §§1801 et seq.
2. N O  A A (NOAA) F-
, S  S 2015: A R  C   S-
  U.S. F 1, 1-3 (2016),
3. Id.; Lewis G. Coggins et al., Eects of Cryptic Mortality and the Hidden Costs
of Using Length Limits in Fishery Management, 8 F  F 196
(2007); G  W A D  F,
F M P N. 279, P   A 
F S L  W A 1 (2016), http://www.
4. Minimum size restrictions restrict the retention of sh caught below a
certain specied size. Only sh larger than the minimum size may be kept
by shers.
5. Coggins et al., supra note 3; Phillip B. Fenberg & Kaustuv Roy, Ecological
and Evolutionary Consequences of Size-Selective Harvesting: How Much Do
We Know?, 17 M E 209, 217 (2008); G 
W A D  F, supra note 3, at 1.
6. Coggins et al., supra note 3.
7. Bycatch is the capture and mortality of nontargeted sh species. Wesley S.
Patrick & Lee R. Benaka, Estimating the Economic Impacts of Bycatch in U.S.
Commercial Fisheries, 38 M P’ 470 (2013).
8. Coggins et al., supra note 3.
9. Id.
Acting on this mounting scientic consensus, foreign
jurisdictions have begun removing minimum size restric-
tions. In Norway, the restrictions, which require the discard
of undersized sh, have been replaced by a discard ba n.10
Initially introduced to cover the commercial cod shery,
the discard ban faced such overwhelming success that it
was expanded to cover all Norwegian sheries.11 In Wes t-
ern Australia, a Fisheries Ma nagement Paper published
in November 2016 notes that minimum size restrictions
assume that released sh survive, when in fact, post-release
survival is uncertain and often unlikely. e paper notably
states that “[t]here is no sustainability benet for a size limit
if released sh have a low rate of post-release survival.”12
After a species-by-species review, Western Australia ha s
now abolished minimum size restrictions for many popu-
lar recreational and commercial sh species.13
In the United States, the removal of minimum size
restrictions would potentially be attractive to a wide vari-
ety of stakeholders, including commercial shers, recre-
ational shers, and environmentalists, a ll of whom seek
the sustainable mana gement of shery resources. In addi-
tion to improving shery management, the removal of
minimum size restrictions may be attractive in a political
climate where the removal of regulations is encouraged.14
Nevertheless, minimum size restrictions remain one of
the most widely used tools in sheries management in the
United States.
e scientic momentum pushing for the removal of
minimum size restrictions, international precedent for
10. Peter Gullestad et al., e “Discard Ban Package”: Experiences in Eorts to
Improve the Exploitation Patterns in Norwegian Fisheries, 54 M P’
1-9 (2015).
11. Id.
12. G  W A D  F, supra
note 3.
13. Id.
14. Exec. Order No. 13771, Reducing Regulation and Controlling Regula-
tory Costs, 82 Fed. Reg. 9339, 9339-41 (Feb. 3, 2017) (“[F]or every one
new regulation issued, at least two prior regulations [must] be identied
for elimination.”).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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