Sunday, December 21, 2014
CONTEMPLATING CONFLICTS OF INTERESTS
The debate over striped bass regulations in New York has taken an interesting turn.
In September, close to 200 people, including anglers, owners and operators of for-hire vessels and commercial fishermen, attended a hearing held by the Atlantic States Marine Fisheries Commission to address the question of conserving striped bass by reducing the harvest.
As would be expected in a crowd of that size, opinions differed, but among recreational fishermen, who provided the bulk of the comments, the recommendation was just about unanimous: Regulators should impose a 1-fish bag limit, and a minimum size of somewhere between 28 and 32 inches. The majority of those anglers preferred the higher minimum size.
When comments were tallied up and down the coast, the results were much the same, with an overwhelming majority of anglers preferring a one-fish bag.
In fact, the angling community was pretty well united. The only people to break up that unity were some members (but certainly not all) of the for-hire community, who felt that they could bring in a lot more money if their customers could kill two fish, not one.
But those for-hire folks comprised a very small portion of the recreational comments.
Yet, when New York’s Marine Resources Advisory Council met in November, the debate took an interesting turn. Most of the Council members, including most of those representing the recreational community, voted to encourage representatives of the Department of Environmental Conservation to investigate adopting the two-fish bag limit that none of the anglers who testified wanted.
And they suggested investigating such a limit not just for the for-hires, but for everyone.
When the vote came, only two of the members present voted against that 2-fish option.
That got a lot of anglers pretty upset.
Pretty soon the conversation got a little belligerent, and fingers got pointed around.
No MRAC member connected with the fishing or boating industry fought for the one-fish bag limit; some anglers, feeling disenfranchised, wrote to Governor Cuomo, complaining that the system was rigged in favor of industry and that anglers were entitled to more representation.
A lot more anglers didn’t send letters, but felt the same way.
The issue was one as old as representative government—the question of conflict of interests, and who a person on a panel such as MRAC, the Atlantic States Marine Fisheries Commission or a federal fisheries management council actually represents.
Do they bring only their own views to the table, do they represent their particular industry or sector or should they be representatives of the overall public interest? What role should public comment play? And who, if anyone, represents the fish themselves?
As the MRAC debate heated up in cyberspace, there were a lot of interesting points made.
For example, if you’ve been an avid angler for all of your life, but also own a waterfront business, do you represent anglers or industry? And can you be expected to separate one side of yourself from the other when those two interests collide?
One MRAC member argued that, while the public is allowed to comment on issues, MRAC members are not and should not feel bound by such comments’ direction. Yet the same member regularly consults with the for-hire fleet to obtain their consensus on proposed regulations, etc., and lets those regulations guide his vote at the meetings, just as another member strives to poll tackle shops to determine which regulations they would prefer.
So is it right for the sentiments of the for-hire fleet and the tackle shops to influence votes, while the preferences of the public are ignored?
Looking to Section 13-0350 of New York State’s Environmental Conservation Law, which created MRAC reveals that there is language that could support both sides of the debate. Clearly, the state was concerned with the commercial and recreational fishing industries when it created MRAC, for the statute contains a statement of legislative intent that reads
“The legislature hereby finds and declares that the finfish and shellfish industry in this state plays a vital part in the economy of the state in general and the Long Island region in particular. By establishing the marine resources advisory council the legislature publicly declares its support for the further development and advancement of such industry…”
At the same time, the statute doesn’t require that MRAC members be affiliated with industry, nor does it summarily bar industry members, merely requiring NRAC be composed of
“representative of recreational users of marine resources and…representative of commercial users of marine resources.
Whether “users” is intended to mean merely fishermen—commercial or recreational—is an interesting question, since that statute requires
“Persons designated or appointed to the advisory council shall have demonstrated a long-standing interest, knowledge and experience in commercial or recreational harvesting of marine resources. [emphasis added]”
The fact that "harvest" is specified raises a big question about the appropriateness of appointing, for example, a tackle shop owner, although permitting recreational industry members to sit on the council certainly provides additional input to regulators.
In the end, it may not matter too much. While some MRAC votes may favor the business interests of MRAC members or the industries to which they belong, and may to some people have, as they say in my profession, “an appearance of impropriety,” MRAC’s lack of rulemaking ability minimizes any impact that such conflicts might have.
But what about conflicts of interest of members of bodies that actually write the fishery management plans—the federal fishery management councils and ASMFC?
You might be distressed to learn that in the case of such bodies, the conflict of interests rules are not very restrictive.
The Magnuson-Stevens Fishery Conservation and Management Act, which governs conflict of interests on federal fishery management councils, merely states that
“A Council decision shall be considered to have a significant and predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interests of other participants in the same gear type or sector of the fishery.”
Thus, a council member would be prohibited from voting himself a sweetheart deal that would provide a financial benefit not shared by other fishermen. However, there is absolutely nothing that would prevent a groundfisherman who sits on the New England Fishery Management Council from voting for measures that provide him—and every other groundfisherman in New England—a short term economic benefit even if it imperils the health of the stock in the long term.
In fact, folks on the New England Council have been doing just that for well over three decades…
At ASMFC, its Compact and Rules & Regulations states that
“No Commissioner shall have a direct or indirect financial interest that conflicts with the fair and impartial conduct of official duties.”
That sounds pretty good.
Under such a situation, a waterman down in Chesapeake Bay seemingly couldn’t fight needed striped bass conservation measures that might decrease his income, a lobsterman up in Massachusetts couldn’t oppose a science-based moratorium on lobster harvest a charter boat captain in New Jersey couldn’t push for bag and size limits that he felt would benefit his business, but weren’t wanted by the general public.
Unfortunately, ASMFC expanded on the rule in its Policy on Commissioner Financial Disclosure and Conflict of Interest, and so rendered it pretty much useless.
Under the Policy,
“A conflict of interest exists when a Legislative Commissioner, Governor Appointee, or proxy:
1. Has greater than10 percent interest in the total harvest of the fishery under consideration or management by the Commission;
2. Has greater than 10 percent interest in the marketing or processing of the total harvest of the fishery under consideration or management by the Commission;
3. Has full or partial ownership of more than 10 percent of the vessels using the same gear type within the fishery under consideration or management by the Commission; or
4. Is an employee or representative of a harvesting entity that harvests greater than 10 percent of the fishery under consideration or management by the Commission. This includes, but is not limited to, fishery association employees, lobbyists, and industry representatives.”
Once again, we end up with a definition that lets just about everyone, from the representative of a local party boat association to the guy pound netting menhaden in some inshore bay, try to shape fishery management plans to best fit his bank account with impunity, no matter how badly such efforts might harm the public interest in healthy fish stocks.
And that’s true because the Policy is focused on the notion that “big is bad” and views “big” on an objective basis that looks at an entire fishery.
But that approach is wrong.
If we are to see management plans designed to protect the public interest, rather than the interests of the folks drafting the plans, we need to concentrate on the fisherman instead.
Because fishermen aren’t objective. They approach management plans from a very subjective viewpoint that grows directly out of their businesses.
Thus, a fisherman may only harvest a very small percentage of the total landings for any species. But if that species accounts for a big percentage of that fisherman’s income, and he sits on a Council or ASMFC, you can pretty well be that he will be more interested in maintaining a healthy cash flow, rather than a healthy fish stock.
When you’re worried about paying the bills next month, you’re not too concerned about rebuilding the codfish, or the striped bass, within the next decade.
And decisions made, and votes cast, by folks with those kinds of worries have been setting back fisheries management efforts since the first such efforts were made.
It is long past time for a new paradigm.
A conflict of interests occurs any time “a direct or indirect financial interest…conflicts with the fair and impartial conduct of official duties.”
If anyone worries that a proposed conservation or management measure would, if passed, have an adverse impact on their income, they must be barred from casting a vote that reflects such concern.
If they did, such a vote would not be “impartial.”
Of course, intent is hard to quantify, so objective standards would probably be needed. In that case, something like permitting a panel member to engage in discussions, but barring them from making any motion or voting on an matter affecting a species, if the harvest of that species provides at least 25% of their income, would be a good place to start.
At that point, the long-term health of the fish stocks, rather than short-term economic concerns, would drive the decisions.
And that would be a very good thing.