THE FIRST TEST

A few days ago, I wrote a piece about the recreational fishing industry’s opposition to proposed, science-driven reductions in the summer flounder harvest.  Much of that essay revolved around an article in The Fisherman magazine which was intended to incite anglers to anger and convince them to also oppose the needed reductions.

When I wrote the piece, I concentrated on the hype and misdirection that characterized The Fisherman article.  What I didn’t mention was its author’s admission that comments sent in to NMFS, no matter how vehement, will have no impact on the decisions made by the Mid-Atlantic Fishery Management Council at its December meeting.

He wrote

“Those public comments collected by NOAA Fisheries through November 30 will be reviewed, analyzed, discussed, debated and ultimately ignored during the fisheries management hearings in Baltimore in December…

 “The angler advocates at the American Sportfishing Association and Recreational Fishing Alliance say an act of Congress or response from the incoming Trump administration will ultimately offer the only salvation; even that will be difficult due to the way the federal fisheries law is written.  It doesn’t matter whether you pulled the lever to the right or to the left in November, the fact is the incoming administration and Secretary of Commerce are the only ones who can make a final legal and regulatory decision to help stave off dire socioeconomic impacts from these massive cuts to the fluke fishery.”

With those words, The Fisherman article effectively acknowledged that summer flounder may prove to be the new administration’s first test with respect to fisheries matters.

Whether it will pass or fail such test is completely unknown.

Of course, “pass” and “fail” are subjective concepts, and I suspect that my definition of “pass” is in every way opposite any definition that might be adopted by the American Sportfishing Association or any other person or group willing to sacrifice the long-term health of the stock in exchange for a bit more short-term income.

So to make it clear what I’m talking about, the administration will “pass” the test if it takes a position that is completely in accord with the advice provided by fisheries biologists, and with federal fisheries law’s mandates to avoid overfishing and rebuild stocks that are, or are likely to become, overfished.

It will fail if it elevates economic concerns above the science and the law.

In theory, the Magnuson-Stevens Fishery Conservation and Management Act, and its prohibition against overfishing, should keep the incoming administration from doing anything too outrageous. 

While the administration could push the limits of the law, and adopt an annual catch limit that is imprudently high, if it sets such limit so high that overfishing is likely to occur, it would violate the standard established in Natural Resources Defense Council v. Daley, and open itself up to a court challenge.

The question then becomes whether the administration cares, and whether it might even want to invite such a lawsuit.

The Recreational Fishing Alliance had endorsed Donald Trump in the 2016 presidential election, and issued the following comments shortly after his win.

“When the news broke this morning that Donald J. Trump had been elected to serve as the 45^th president of the United States, the Recreational Fishing Alliance’s Executive Director Jim Donofrio couldn’t have been more pleased.

“’The RFA was the only sport fishing organization in the country that supported and publicly endorsed Mr. Trump right from the beginning,’ explained Donofrio.  ‘He obviously understands business as well as anyone, and we quickly realized that an administration under his leadership would benefit the recreational fishing industry, particularly those in the manufacturing sector such as boat and engine builders and tackle companies, which have been operating under increasing governmental restrictions for years.  We believe these businesses will now be better able to improve their products and expand their markets as we move forward.’

“The RFA is also optimistic that the new administration will provide a more balanced approach to managing the country’s marine resources.  ‘The days of the environmental zealots running the show are, for the most part, over,’ continued Donofrio.  ‘I think we’ll start to see a more balanced approach between access to our resources, responsible stewardship, and common sense conservation.  This, of course, has always been a major goal of RFA, but in many arenas it’s been an uphill battle.  So, we’re excited about this new direction, and look forward to some positive changes to the Magnuson-Stevens Act that will benefit our sector, along with a new attitude toward fisheries management.’”

If the Recreational Fishing Alliance has accurately gauged the temper of the incoming administration with respect to fisheries matters, it is not impossible that it will intentionally seek an early confrontation with conservation advocates, in order to force a lawsuit that will, when the administration loses, provide support for a call to Congress to emasculate the conservation and stock rebuilding provisions of federal fisheries law.

From all of the information that’s publicly available, it seems likely that the president-elect has little experience with any fish that has’t already been dressed, prepared and laid out on a plate, so Magnuson-Stevens issues aren’t likely to be a high priority for him.  It’s also unlikely that they’re important to the probable incoming Secretary of Commerce, Wilbur Ross, a 79-year-old billionaire bankruptcy specialist who made his fortune investing in the debt of distressed companies and helping such companies return to profitability.

Thus, the fate of summer flounder and the rest of America’s fish stocks may well depend on who is ultimately appointed as the National Oceanic and Atmospheric Administration’s Assistant Administrator for Fisheries.

Usually, such position is awarded to either an attorney with extensive experience with marine resource issues, such as the current Assistant Administrator Eileen Sobeck, or to a scientist, such as Ms. Sobeck’s predecessor, Jane Lubchenco.

Both such possibilities offer grounds for both hope and concern. 

A career government attorney such as Ms. Sobeck, who has served under both Republican and Democratic administrations, is likely to be relatively even-handed, relying on the science and the law and be less concerned with political dogma.  On the other hand, should counsel for the fishing industry, an industry lobbyist or the congressional majority get the nod, the conservation community and America’s fish stocks are probably in for a very tough four years.

The same can be true of an academic or fisheries scientist.

While Magnuson-Stevens has been widely supported by the fisheries science community, there are still biologists who believe that any fish that dies of old age instead of being harvested is essentially wasted, and that fish stocks should be managed primarily for their economic benefit.  Thus, we still have biologists saying that

“The substance of the 1996 reauthorization [of Magnuson-Stevens] was driven by a burgeoning political influence of conservation groups.  The act was moved from simply defining principles of fisheries management, such as estimating maximum sustainable yield to avoid overfishing, to concepts like ‘rebuilding’ stocks that were thought to be overfished, and to protecting the ‘environment’ thought to be degraded by fishing.

“The language and its interpretive guidelines became excessively prescriptive, which resulted in limiting the flexibility of managers to take an optimal course in regulating fisheries.  Heaped on top of this were operationally counterproductive concepts like ‘overfishing’ and ‘ecosystems’ that, while sounding substantive, have in fact little substantive, strict scientific definition.

“The 1996 changes that were heralded by the conservation groups in fact generated a ‘perfect storm.’  This was due to the confluence of the 1996 amendments, largely unexplained declines in some groundfish stocks, significant under-fishing amounting to losses of hundreds of millions of dollars each year, and the catch share program…”

Such scientists, although relatively rare, take a position not unlike that of the Recreational Fishing Alliance, and would not be likely to support the rebuilding and conservation of America’s fish stocks.

And that assumes that the next Assistant Administrator for Fisheries doesn’t come from a non-traditional background, such as the fishing industry itself.

But regardless of who ends up in that position, it will be the fisheries issues that exist on every coast which will test the mettle and the intentions of the incoming administration.  

By an accident of timing, 2017 summer flounder catch limits may very well be the first test of them all.