Thursday, May 1, 2014
U.S. SENATE CONSIDERS THE MAGNUSON ACT
A couple of months ago, I wrote about the House “discussion draft” of a bill reauthorizing the Magnuson-Stevens Fishery Conservation and Management Act. That was a pretty frightening draft that would gut the most important provisions of federal fisheries law, and could well take us back to the sort of unregulated overfishing that collapsed stocks along every coast of the United States.
When I closed that piece, I noted that the Senate was still working on its own initial “discussion draft,” and that I thought it would probably take a more rational approach than that taken by the House.
That Senate draft was finally released around the middle of last month, and I was relieved to learn that my guess was correct. While the Senate draft isn’t perfect, it is far better than the proposed House bill. It includes a couple bad provisions that need to be removed, and some other ambiguous and potentially harmful constructions that ought to be revised. But it also contains some very good provisions that will move the fishery conservation effort forward.
All in all, it isn’t a terrible initial effort. With a little work and cooperation, could easily be shaped into a worthy bill.
The draft was authored by a bipartisan committee drawn from many different states, and contains language supported by a majority of the committee members. But as one reads the language of the proposed bill, one can’t help but believe that a lot of the credit has to go to Senator Mark Begich of Alaska, who has taken principled stands on conservation issues before—most recently, his courageous opposition of the so-called Pebble Mine, which posed an existential threat to the rich Bristol Bay salmon fishery—and comes from a state that daily reaps the benefits of enlightened fisheries management measures.
The biggest single issue of this Magnuson reauthorization cycle is the concept of “flexibility.” I addressed the issue generally in an earlier essay; noting that, while it sounds like a reasonable idea, “flexibility” has become a euphemism for continued overfishing—something that is anything but reasonable. The House draft has fully embraced that approach, and incorporates a host of provisions that would allow such overfishing to continue unabated for extended periods and would likely pose real barriers to ever fully rebuilding still-overfished stocks.
The Senate draft takes a more rational approach.
It would make the rebuilding provisions species-specific, establishing a rebuilding time equal to the minimum time it would take to rebuild the stock (presumably if no fishing at all took place, although that should be clarified in the draft bill) plus one mean generation time—the average time it would take a member of such stock to reach reproductive maturity.
Linking the rebuilding time to such species-specific periods should eliminate objections to the current 10-year rebuilding period by those who claim that it is “arbitrary”; at least in theory, rebuilding times under the Senate formulation could be either longer or shorter than 10 years.
Unfortunately, there’s not enough available fisheries science to determine mean generation times and minimum rebuilding periods for many stocks. The authors of the Senate draft have thus wisely provided that, when fisheries scientists are not in general agreement on the length of such periods, the current 10-year deadline would remain in effect.
Species-specific provisions would seemingly eliminate the need for language that currently extend rebuilding periods beyond the 10-year default for biological or environmental reasons. However, the Senate draft retains such provisions; in order to keep a court from reading the statute in an unintended manner, such exception language should be revised.
Yet even if some of the rebuilding language of the Senate draft needs to be tweaked a bit, that draft enters upon important new ground when it recognizes the need to manage forage fish not only for harvest, but to assure that there are enough around for other fish to eat. Arguably, the new language doesn’t go far enough—it doesn’t assure that all forage species will be managed, and doesn’t consider the forage needs of marine mammals, birds, etc.—but it represents real progress all the same. So does an additional language that sets out guidelines to regional fishery management councils who would like to manage resources on an ecosystem basis.
As anglers, we should be pleased by the inclusion of language that would establish standards for the regular review of the allocation of fish made to the recreational and commercial sectors. Such regular reviews would help alleviate the current situation, in which sectors are locked into allocations that reflect harvest and demographic patterns that existed in the past—often decades ago—rather than those that reflect today’s realities or the future needs of the nation.
The Senate draft would also require—subject to available funding and absent explicit waiver by the agency—that existing stock assessments be updated on a regular basis, and that currently unassessed stocks be promptly subject to stock assessments. That can only be a good thing for everyone.
Having said that, the bill contains some unfortunate language, too.
Probably the single worst provision is one which would include information obtained from sources such as “fishermen, fishing communities…and other appropriate entities” within the definition of “best scientific information available” and authorize its use to “form the basis of conservation and management measures as required” by the law.
Let’s be honest. Anecdotal information provided by fishermen interested in the outcome of a management decision does not constitute the kind of objective data that can be labeled “scientific information.” Fisherman don’t gather their information objectively; bias is unavoidable.
Even in the best of circumstances, their very expertise and experience on the water is likely to lead to false conclusions, for a good fishermen can rely on accumulated knowledge and experience to find fish even when stocks are in serious decline. That doesn’t mean that fish are abundant, even though fishermen often interpret their success in that way.
Anyone who has spent much time at fisheries hearings has heard the three timeless mantras of fishermen who hope to avoid regulation: “There’s plenty of fish out there—you just don’t know where to find them,” “The decline’s not our fault, it’s just ‘The Cycle’” and “They just went somewhere else; they’ll be back in a while.”
The thought of such comments being treated as “the best scientific information available” boggles the mind; these sections just have to go.
Another big problem arises out of a concept newly introduced in the Senate draft, that of “non-target fish.” Such “non-target fish” are defined as “fish that are caught incidentally during the pursuit of target fish in a fishery, including regulatory discards which may or may not be retained for sale or personal use.” That definition provides a lot of opportunity for mischief.
The first obvious problem is the phrase “caught incidentally during the pursuit of target fish in a fishery,” since that can mean just about anything, from an obscure species of grunt or grouper that occasionally comes up when folks fish for snapper to broadbill swordfish killed by a squid trawler’s net. A species may be a “target fish” in one fishery and a “non-target fish” in another. And that is a real issue, because “non-target fish” aren’t given all of the protections that “target fish” enjoy.
Certainly, the blurred line between “bycatch” and “non-target fish” creates ambiguity. As just one example, “non-target fish” includes fish that are “caught incidentally…which may or may not be retained for sale or personal use” while “bycatch” includes “non-target fish that are harvested in a fishery and retained.”
So when does a minor component of a mixed-stock fishery stop becoming a “target fish” (i.e., “a fish that is caught for sale or personal use”) that needs to be managed pursuant to the act, and becomes “bycatch” as a “non-target fish that [is] harvested in a fishery and retained” for sale or personal use?
Just looking at the New England groundfish fishery, how would such provisions impact such badly overfished species as Atlantic halibut, spotted wolfish or ocean pout? And down south, where ecosystems are far more diverse, how many reef fish, from goliath grouper to the smaller wrasses, grunts and groupers, will be put in harm’s way if the catch of “non-target species” is no longer subject to accountability measures and other protections provided by current law?
The notion of “non-target fish” is badly in need of rethinking.
But then, it’s rare that anyone gets something perfectly right on the first try.
The Senate discussion draft is a full 90 pages in length, far too long for a single blog post. So I only provided the highlights most likely to interest anglers, and left out the species-specific stuff.
Given the difficult political climate in Washington, it makes a good starting point for legislation that not only maintains, but improves, the health of our fish stocks over the next decade or so.
But that’s not going to happen by itself. There are plenty of folks out there, mostly from the commercial fishing industry but, unfortunately, from the underside of the angling community as well, who would gut the Magnuson Act’s most important provisions in order to add a bit of weight to their wallets. They can easily win if responsible folks stay disengaged.
Throughout the reauthorization process, I will be making periodic comments on the progress, and setbacks, that occurs. I urge you to follow the process yourself, to contact your elected representatives and to demand that our salt water fish stocks be managed for health and abundance, so that you can enjoy the benefits of fishing in a bountiful sea.
Otherwise, we can go back to the way it was before the ’96 Act.
I was there.
Fishing in a largely empty ocean just wasn’t much fun.