Somewhere
back in grade school, we all learned that the United States government is
composed of the Executive, Legislative and Judicial branches. All three
branches have equal standing; none is superior to the others.
Article I of the Constitution
of the United States vested all legislative power in the Senate
and House of Representatives. Article IIdefined
the powers and duties of the President and executive agencies, while Article III created the Supreme Court and gave
Congress the power to create the judicial system of federal district courts and
courts of appeals that we know today. Yet, while Article III authorized the
federal courts to decide cases “arising under this Constitution,” it did not
expressly grant the Supreme Court to make the ultimate decision as to whether
an executive or legislative action passed constitutional muster; the court
first asserted that power in 1803, when it decided the case of Marbury v. Madison, and has wielded it ever since.
The Constitution’s grants of exclusive authority to each branch
of government created a system of checks and balances, in which every branch
has unique powers that allow it to limit the actions taken by either of the
other two branches.
The need for such a
separation of powers is frequently raised in political debates, but many
anglers don’t realize that it’s important for fisheries management, too.
It all begins with the Legislative Branch which, in 1976, first
passed the law that we now know as the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens). The 1976
version, known simply as the Fishery Conservation and
Management Act, forced most foreign fishing vessels to stay at least
200 miles from United States shores, but was not effective at conserving fish
stocks. In 1996, Congress amended the
law to better address conservation concerns.
The 1996 version of
Magnuson-Stevens prohibited overfishing, and required federal fishery managers
to rebuild overfished stocks within 10 years, if it was biologically possible
to do so.
At that point, it became the
duty of the Executive Branch, in the form of the National Marine Fisheries
Service (NMFS) to transform the will of Congress, as expressed in
Magnuson-Stevens, into a functioning fishery management program.
At first, NMFS didn’t do that
very well.
In order to end overfishing
and rebuild overfished stocks, NMFS would have to compel fishermen to stop
overfishing and reduce their landings to levels that fish stocks could sustain
over the long term. Fishermen didn’t want that to happen, because reducing
landings would also reduce their incomes, at least in the short term. Because
fishermen held most of the seats on the regional fishery management councils
that drafted the management plans and proposed fisheries regulations to NMFS,
and most of those fishermen didn’t want to see landings reduced, the
conservation provisions of Magnuson-Stevens were not immediately implemented.
Things finally came to a head
in 1999, after the Mid-Atlantic Fishery Management Council (MAFMC), acting
against scientific advice, established a catch limit for summer flounder that
was very unlikely to prevent overfishing.
That’s where the third branch
of government, the Judicial Branch, played its role.
The facts of the matter were
not in dispute. The biologists on MAFMC’s Summer Flounder, Scup and Black Sea
Bass Monitoring Committee (Monitoring Committee) recommended that 1999 summer
flounder landings be limited to 14.645 million pounds, but the MAFMC rejected
that advice, and adopted a 20.20 million pound quota. However, NMFS refused to
implement the MAFMC’s proposed quota because, if it did, there was only a 3%
chance that overfishing wouldn’t occur.
Instead, NMFS decided to
implement an 18.52 million pound quota, which was still significantly higher
than the Monitoring Committee’s recommendation, and had only an 18% chance of
preventing overfishing.
In response to what seemed to
be a clear violation of both the letter and the spirit of the recent amendments
to Magnuson-Stevens, a conservation group, the Natural Resources Defense
Council, brought a legal action against the Secretary of Commerce, who had the
ultimate responsibility for NMFS’ actions, and against other related parties.
The matter, Natural Resources Defense Council v. Daley, eventually
ended up in the United States Court of Appeals for the District of Columbia
Circuit, where the court decided that the Executive Branch, in the form of
NMFS, failed to properly carry out its duties as defined in the relevant
legislation, which was Magnuson-Stevens.
The court, interpreting the
language of Magnuson-Stevens, decided that NMFS must prioritize effective
conservation measures above economic concerns. Most importantly, it found that,
in order to meet the requirements of federal law, measures adopted by NMFS,
including annual catch quotas, must have at least a 50% chance of achieving
their stated goals.
In a scathing rejection of
NMFS’ proposed quota, the court observed that “The disputed 1999 [landings
quota] had at most an 18% likelihood of achieving the target [fishing mortality
rate]. Viewed differently, it had at least an 82% chance of resulting in [a
fishing mortality rate] greater than the target [fishing mortality rate]. Only
in Superman Comics’ Bizarro World, where reality is turned upside-down, could
[NMFS] reasonably conclude that a measure that is at least four times as likely
to fail as to succeed offers a ‘fairly high level of confidence’ [in its
success].”
Thus, the system of checks
and balances worked just as intended, with the Legislative Branch passing
Magnuson-Stevens, the Executive Branch failing to properly comply with the law,
and the Judicial Branch interpreting the Legislative Branch’s actions and, in
so doing, requiring the Executive Branch to correct and improve its management
system.
We need to think about that
this year, as Congress considers new amendments to Magnuson-Stevens, because
effective fishery management that rebuilds and conserves the nation’s fish
stocks begins with a strong and effective federal fisheries law. Without a good
legislative base on which the judiciary can build, fish stocks are left
vulnerable to executive agency actions.
We saw an example of that
last year.
Upon taking office, Commerce Secretary Wilbur Ross expressed his desire to
obtain “maximum sustainable yield from our fisheries,” and at the same time, he
spoke of the need to “relieve the current burden of regulation that has shifted
American economic growth overseas and made us uncompetitive on the world
stage.”
In 2017, Secretary Ross turned his beliefs into action when he
authorized the reopening of the 2017 red
snapper season for private-boat anglers in the Gulf of Mexico,
largely for economic reasons, even though staff had clearly informed him that
such action would cause anglers to exceed their annual catch limit by forty
percent.
Once again, an executive agency’s action violated
Magnuson-Stevens’ prohibition against overfishing, and once again, conservation advocates asked
the judiciary to intervene. In this instance, the season ended too
soon to allow the court to take any action; however, the court ultimately
retained jurisdiction over the matter, to prevent the agency from ignoring the
law, with respect to red snapper, in 2018.
Yet the possibility that NMFS
will violate the law again, with respect to another fishery, remains.
In March 2018, NMFS’ head Chris Oliver addressed the Seafood
Expo North America, a commercial fishing industry event held in Boston where, according to the industry
publication Undercurrent News,
“he made it clear that he was using his leadership role to both follow the
administration’s charge to combat excessive regulation and also looking out for
harvesters.”
Mr. Oliver reportedly
reaffirmed his support for science-based management, but also said that “I also
believe that there is room for flexibility and a greater role for common sense
frankly in our approach to fishery management. And I want to bring a more
business-minded approach to that process.”
Over all, the tone of Mr. Oliver’s comments was far too
reminiscent of NMFS’s tone in 1999, when it set the summer flounder quota, and
the comments that accompanied the
reopening of the 2017 red snapper season. Such an agency
outlook can easily lead to agency actions that don’t comply with the law.
Thus, to keep the system of checks and balances intact, it is
important to have strong fisheries laws that can be readily enforced by the
courts. Pending legislation, such as H.R. 200, the
Strengthening Fishing Communities and Increasing Flexibility in Fisheries
Management Act, along with H.R. 2023 and S. 1520, the
Modernizing Recreational Fisheries Management Act, chip away at such laws by
granting the executive agency too much discretion to allow overfishing and
delay the rebuilding of overfished stocks.
Both H.R. 200 and Mr. Oliver
call that “flexibility,” but what it is, in fact, is the sort of legal
uncertainty that makes it much more difficult for the courts to protect the
public’s interest in healthy fish stocks.
Without the checks and balances provided by clear legislation,
which the judiciary can easily enforce, we could easily revert to the days when
an executive agency such as NMFS again believed that a management plan with a mere
18% chance of success came close enough for government
work, although it never really came close at all.
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This essay first appeared in “From the Waterfront,” the blog of
the Marine Fish Conservation Network, which can be found at
http://conservefish.org/blog/
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