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 Scientic 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
benet 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), https://repository.library.noaa.gov/
3. Id.; Lewis G. Coggins et al., Eects 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.sh.wa.gov.
4. Minimum size restrictions restrict the retention of sh caught below a
certain specied size. Only sh larger than the minimum size may be kept
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.
Acting on this mounting scientic 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of undersized sh, have been replaced by a discard ba n.10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 benet 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
e scientic momentum pushing for the removal of
minimum size restrictions, international precedent for
10. Peter Gullestad et al., e “Discard Ban Package”: Experiences in Eorts to
Improve the Exploitation Patterns in Norwegian Fisheries, 54 M P’
12. G W A D F, supra
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 identied
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.