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

• Date: 01 June 2018

6-2018 NEWS & ANALYSIS 48 ELR 10457

COMMENTS

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), https://repository.library.noaa.gov/

view/noaa/15619.

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.sh.wa.gov.

au/Documents/management_papers/fmp279.pdf.

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®, http://www.eli.org, 1-800-433-5120.