Now that H.R. 200, a bill
that would amend and reauthorize the Magnuson-Stevens Fishery
Conservation and Management Act(Magnuson-Stevens), has passed the
House of Representatives, it poses an even greater threat to the federal
fishery management system.
Much of that threat arises
out of the uncertainty that would be introduced by many of the provisions of
H.R. 200, which create broad exceptions to the clear conservation and
management language of the current law.
Ideally, the law should be worded so clearly that a person
without legal training can read it and understand what is and is not allowed.
When Magnuson-Stevens unambiguously
states that “Conservation and management measures shall prevent
overfishing,” its intent is perfectly clear. By using the word “shall,” that
law doesn’t give fishery managers any discretion; any measure that allows
overfishing is clearly illegal.
Similarly, when Magnuson-Stevens requires that “For a fishery
that is overfished, any fishery management plan, amendment, or proposed
regulation…shall specify a time period for
rebuilding such fishery that shall…not exceed
10 years, except in cases where the biology of the stock of fish, other
environmental conditions, or management measures under an international
agreement to which the United States is a party dictates otherwise, [emphasis
added, internal numbering deleted]” it’s pretty clear what fishery managers
have to do when rebuilding a stock.
Unfortunately, that ideal is
seldom achieved in the real world; some uncertainty always creeps into
legislation, and the courts need to get involved and interpret the law. Whether
the courts ultimate carry out the legislators’ intent often depends upon
whether that intent is clearly expressed in the law’s language.
Magnuson-Stevens faced such a
court challenge, after fishery managers failed to adopt fishery management
measures that complied with the conservation provisions that were added to the
law in 1996. The challenge arose in 1999, after the National Marine Fisheries
Service (NMFS) proposed a summer flounder quota that had only a 17 percent
chance of preventing overfishing.
The federal appellate court that issued a decision in that case, Natural Resources Defense
Council v. Daley , held that “at the very least…to ‘prevent
overfishing’…the [total allowable landings] must have at least a 50% chance” of
keeping fishing mortality below the overfishing threshold. It decided that the
law meant exactly what it said, that overfishing shall be prevented, and so
enabled federal fishery managers to completely rebuild 44
once-overfished stocks over the last eighteen years.
H.R. 200 is dangerous because
it destroys that sort of certainty and gives NMFS far too much leeway to allow
overfishing and indefinitely delay the recovery of overfished stocks. It does
so by creating loosely-worded exceptions to the requirements that the law
imposes on fishery managers, and those exceptions render such requirements
virtually meaningless.
H.R. 200’s exceptions to the
mandatory timelines for rebuilding an overfished stock exemplify this point.
One such exception would
delay stock rebuilding for an indeterminate period if “The Secretary determines
that the cause of the stock being depleted is outside the jurisdiction of the
[relevant fishery management] Council or the rebuilding program cannot be
effective only by limiting fishing activities.”
Should such a provision become law, NMFS could avoid setting a
final rebuilding deadline for overfished salmon stocks just by finding that the
cause of their “depletion” lay in dams and other problems in their natal
rivers. Similarly, fish such as winter flounderand many species of grouper ,
which rely on inshore spawning and or nursery areas, might never be completely
rebuilt if NMFS declared that their problems resulted from conditions on such
inshore grounds, and not from anything that occurred in federal waters.
Another exception, which
would delay rebuilding if “the Secretary determines that one or more components
of a mixed-stock fishery is depleted but cannot be rebuilt within [the
required] time-frame without significant economic harm to the fishery,” seems
designed to prevent the recovery of Atlantic cod stocks in our lifetime.
And an exception that would
delay rebuilding if “the Secretary determines that the stock has been affected
by unusual events that make rebuilding within the specified time period
improbable without significant economic harm to fishing communities” is so
broad that it could probably be applicable to any overfished stock.
The problem is made even
worse by the deference that courts must give to the decisions of administrative
agencies, including NMFS.
Pursuant to Magnuson-Stevens, NMFS’ decisions can only be
challenged under very limited circumstances;
only decisions that are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” will be overturned by a reviewing court.
Courts may not substitute their own findings of fact for those of the agency,
or decide which testimony should or should not be believed. Instead, so long as
the agency didn’t exceed its Constitutional and statutory authority, a court
must affirm any agency decision
that is supported by “substantial evidence.”
And “substantial evidence” is a legal term of art, that involves
far less “substance” than a non-lawyer might expect. Courts have defined it
as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion…When the evidence may rationally be interpreted in more
than one way, the court must uphold the [agency] decision.”
As a practical matter, that
means that if there was any evidence provided during the rulemaking process
that supports an agency’s decision, a court will not overturn that decision,
even if far more evidence to the contrary was also provided to the agency.
Thus, if one person testified
that a fish population was depleted as a result, perhaps, of pollution in
inshore nursery areas, and two dozen people testified that the problem was
overfishing, NMFS could choose to believe that one person’s word and, if H.R.
200 became law, decide that a rebuilding deadline should not apply. And the
courts would let that decision stand.
At this point, someone might
object that Magnuson-Stevens requires such management decisions to be supported
by “the best scientific information available,” and that such requirement would
protect fisheries from such unfortunate results. But H.R. 200 is putting that
at risk, too.
Normally, what is or is not
deemed “best scientific information” is determined by each regional fishery
management council’s science and statistics committee or by experts at NMFS, a
process that keeps most bad information from affecting management outcomes. But
a provision in H.R. 200 would require that fishery management plans “identify
data and analysis, especially concerning recreational fishing” and determine
“whether such data and analysis could be provided by fishermen, fishing
communities, universities and research institutions.” The identified data and
analysis might then be considered “the best scientific information.”
The findings of professional
researchers at universities and other institutions are already considered in
stock assessments and other management actions, so that much of H.R. 200’s
language offers few problems (although issues sometimes arise when “hired guns”
working for various organizations seek to steer a stock assessment committee
toward a particular conclusion). However, the notion that data, much less
analysis, compiled by fishermen with no scientific background, could be
considered “the best scientific information” should frighten anyone concerned
with the health of fish stocks.
H.R. 200’s language could allow the New England Fishery Management
Council to give a fisherman’s comments that “There
is so much more cod out there than ever before” the same weight as a comprehensive stock assessment saying
that the stock is in serious trouble, by deeming both “the best scientific
information” available. And if the council decided to believe the fishermen
instead of the assessment, and set harvest levels accordingly, it would be very
hard to successfully challenge that decision in court. That would clearly be a bad
result.
But then, a lot of bad
results would accrue if H.R. 200 became law. And on July 11, it took a big step
in that direction.
Thus, it is time to gear up
for an all-out fight in the Senate to prevent a bad bill from going any
farther.
For if H.R. 200’s supporters
win in the Senate as well as the House, our nation’s fish stocks will certainly
lose.
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This
essay first appeared in “From the Waterfront,” the blog of the Marine Fish
Conservation Network, which may be found at http://conservefish.org/blog/
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