Thursday, February 20, 2014
THE MAGNUSON ACT: KEEPING THE ADULTS IN THE ROOM
Back when I was in junior high—or maybe it was high school, I can’t quite recall—one of the books that we had to read was William Golding’s Lord of the Flies.
You probably had to read it, too, but if you didn’t, the plot generally traces the fate of a group of boys in wartime, who end up alone on a desert island after surviving a plane crash. It describes how, left on their own and without the strictures imposed by adult society, the boys devolved into an undisciplined and ultimately destructive state, and eventually began murdering their own.
About the same time that I first read that tale, my own testosterone-spawned aversion to discipline and order manifested itself. Friday and Saturday nights were a time for celebration, and the simple phrase “My parents won’t be home” murmured into the phone was a clarion signal that, for a while, the rules need not apply.
I look back at those days with some embarrassment now. And I reflect on how, in so many ways, the fishery management system remains stuck in adolescence, and never found a way to grow up.
It goes back to the beginning, or at least the beginning of modern times, when the Fishery Conservation and Management Act of 1976, the forerunner of today’s Magnuson-Stevens Fishery Conservation and Management Act, first became law.
Much of the impetus for passing such legislation was a desire to push highly efficient—and thus highly destructive—foreign fishing fleets away from American shores, and to help U. S. fishermen to thrive. However, as the name suggests, fisheries conservation and management were part of Congress’ motivation, too.
In those days, as today, the law required that fish stocks be managed for “optimum” yield. But back then, the definitions were a bit different. “Optimum” yield was
prescribed on the basis of the maximum sustainable yield from the fishery, as modified by any relevant social, economic, or ecological factor… [emphasis added]
That almost sounds reasonable. But fishermen, like adolescents, don’t really care for rules, and are habitually testing their limits. And when they pushed up against that word “modified,” they found out that they really had very few limits at all.
“Maximum sustainable yield” (“MSY”) is the generally-accepted overfishing threshold; take more than that, and the harvest becomes unsustainable—the size of the fish stock will decline, and the size of the harvests will eventually decline as well, although skilled fishermen will often be able to land a lot of fish right up to the time that the stock collapses, just because they know how to find whatever scraps remain.
Thus, biologists view MSY as a line that never be crossed. In the real world, prudent managers try to keep harvests well below that level, simply because there is always some uncertainty in the science, and landings can’t be predicted with absolute accuracy.
But back in the early days of federal fisheries management, the fishermen who peopled the regional fishery management councils viewed maximum sustainable yield a little differently. They didn’t want to set quotas below MSY, because that would just be leaving money on the table. Then fishermen—who might be the council members’ friends and neighbors, and in any event looked a lot like the folks making the rules—would come to a council meeting to complain that if the quotas weren’t increased, their incomes would be slashed, and maybe they’d have to sell their boats and take a shoreside job.
And that’s where the word “modified” in the definition of “optimum” yield came in. It gave the councils carte blanche to raise quotas well above MSY for “social and economic” reasons, while still constraining harvest to “optimum” yield.
The fishermen—including those sitting on the councils—grasped, childlike, for instant gratification, while giving no thought to the future consequences of doing so. But those consequences were as inevitable as time and tide: Fish stocks crashed.
Summer flounder bottomed out around 1990; a few years later New England groundfish stocks dropped so low that their collapse became news not just in local papers, but on national television and in The New York Times. Plenty of other stocks, from South Atlantic snapper to Pacific rockfish, followed the same depressing trajectory.
The kids had gone too far, and it was time for the grownups to regain control.
So Congress passed the Sustainable Fisheries Act of 1996, which required federal fisheries management plans to promptly end overfishing and, if biologically feasible, rebuild overfished stocks within ten years. “Optimum” yield was redefined in a way that no longer permitted perpetual overfishing; after 1996, it was to be
prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor… [emphasis added]
In response, the regional fishery management councils adopted a truculent attitude, and still pushed to see what they could get away with. The Mid-Atlantic Fishery Management Council adopted a summer flounder management plan that only had a 17% chance of successfully meeting the Sustainable Fisheries Act’s mandates, then sat quietly and watched to see whether they’d get away with it.
As things turned out, they got their knuckles rapped. The Natural Resources Defense Council brought suit challenging the summer flounder plan, and when the court handed down its decision (http://www.cadc.uscourts.gov/internet/opinions.nsf/E36DAC79549F797D85256F180065A726/$file/99-5308a.txt), it was very clear that the Council had failed its test, and had some remedial work to do. Federal fishery management plans unlikely to timely recover the stocks would no longer make the grade.
The federal fishery management process was finally coming of age. Fishermen had to start taking responsibility for their past excesses, and accept the harvest cuts that they should have adopted a couple of decades before.
Enforced responsibility is never popular, and the fishermen responded predictably, crying and complaining that the cuts weren’t fair. They blamed the law and the regulators and the scientists. They blamed anyone who wanted to conserve the fish. As they wailed and thrashed and threatened, they blamed everyone except themselves.
But the law did not yield to intemperate outburst. Fish stocks started to rebuild, at least, in places where councils had matured into their responsibilities, and proved willing to cap harvest at sustainable levels. In places like New England, fishermen still wheedled their way out of the chore of rebuilding depleted stocks. And the council encouraged their continued irresponsibility by shunning the “tough love” of hard caps on harvest, and instead indulged them with ineffective half-measures such as restrictions on days at sea.
In the end, as before, New England fish stock suffered. So did the fishermen, because they had no one willing to straighten them out and set them on a sustainable path.
Unfortunately, the folks in New England weren’t alone.
At the same time that the conservation provisions of the Magnuson Act were proving successful in federal waters, fisheries management in the states, coordinated by the Atlantic States Marine Fisheries Commission, stubbornly refused to mature.
The Magnuson Act’s strictures didn’t apply, and without the supervision of law or the courts, the fishermen on the Commission, who outnumber professional managers by a two-to-one ratio, acted without restraint. They frequently ignored the advice of both their scientists and their advisory panels, in order to kill more fish. They allowed overfishing to continue, and refused to rebuild overfished stocks.
For depleted fish stocks, it was a Lord of the Flies moment protracted over decades. Stock after stock was figuratively impaled upon a stick, and their lifeblood allowed to drip freely into the ground. Stocks of formerly abundant tautog, winter flounder, shad and river herring, among others, all managed irresponsibly, slid toward depletion at the same time that, in federal waters, formerly depleted stocks were returning to abundance.
Now, in the U. S. House of Representatives, a bill being advanced by Rep. “Doc” Hastings of Washington would remove the most important legal constraints that now bind federal fisheries management. The proposed legislation would insert abundant language into current law, language that, like the old word “modified”, will give fishermen more opportunities to overfish once again. There are even provisions that would allow the councils to avoid rebuilding stocks altogether, if doing so might force a little unwanted restraint or otherwise prove inconvenient.
Hastings seems poised to announce that the adults will be taking an around-the-world cruise, and that the kids are going to have to take care of things while their parents are gone.
That’s probably not a good idea. It would be better to keep the adults in the room.