WHAT IS THE WHITE HOUSE TRYING TO SAY ABOUT FISHERIES MANAGEMENT'S FUTURE?

For those who haven’t yet heard, S. 1520 is now law.  President Trump signed it last Monday.

As I wrote a couple of weeks ago, that’s no big deal.  While the so-called “Modern Fish Act” was once a terrible piece of legislation, the Senate did a good, if painfully slow, job of castrating the bill; the version signed into law is effectively impotent, and unlikely to cause any harm.

The folks who support the bill are still trying to convince themselves, and everyone else, that the money and effort that they poured into S. 1520’s passage represented resources well-spent, although at least one group, the American Sportfishing Association, is trying to walk back the enthusiasm just a little bit. 

After making the expected laudatory claims, ASA began to introduce a bit of realism into the picture, and apparently tried to ramp down expectations a bit as to just what the new law will do.  As it noted in a recent press release

“The Modern Fish Act isn’t going to overhaul the federal marine fisheries management system overnight.  It’ll likely take several fishing seasons before the management and data collection improvements called for in the Act begin to better align fishing regulations with actual fish abundance and harvest, and with what anglers really want out of management.

“It’s also important to note that not all the changes called for in earlier versions of the Modern Fish Act made it through in the final version.  This was the unfortunate reality of needing unanimous approval of the U.S. Senate to clear the bill.  Even though it’s big to us, in the grand scheme, bills such as the Modern Fish Act rarely receive floor time and therefore can only pass with unanimous approval.”

The ASA release was easy to follow, and to understand.  In essence, it said “Hey, thanks everyone for your help in getting the Modern Fish Act signed into law.  This is a great day for recreational saltwater fishermen.  But don’t expect to see any tangible results from the law very soon.  It might take years.  And remember, the law that passed really wasn’t the law that we wanted, so…”

But there was another Modern Fish Act-related statement that came out on December 31, and it was a little tougher to understand.  That one came straight from the White House, and it said

“Today, I have signed into law S. 1520, the “Modernizing Recreational Fisheries Management Act of 2018” (the “Act”).  The Act, however, further strengthens the Regional Fishery Management Councils, which were first established by the Magnuson-Stevens Act of 1976 to promulgate fishery management plans.  The power of these Councils has steadily increased over time, raising constitutional concerns related to the manner of the appointment and removal of their members and members of certain scientific and statistical committees that assist them.  Keeping with past practice of the executive branch, my Administration will treat the plans promulgated by the Council as advisory only; the adoption of the plans will be subject to the discretion of the Secretary of Commerce as part of the regulatory process described in section 304 of the Magnuson-Stevens Act.”

The statement was signed

“DONALD J. TRUMP

The purpose of that statement, and the message that it was meant to convey, is not clear at all.  

Some parts are just plain wrong (one of the most obvious being that there was never anything called the “Magnuson-Stevens Act of 1976”; the original law was the Fishery Conservation and Management Act of 1976, with the “Magnuson-Stevens” being added, to honor its primary sponsors, some years later).  Some parts are on shaky ground, and some parts are just a little strange, making one wonder why they were written at all.

Start with the passage of the bill itself.  

It was a bill sought by a large portion of the fishing tackle and boatbuilding industries, and when it made it through the House, a lot of folks with some time inside the legislative process predicted that, even during the holiday season, the President would have held some sort of signing ceremony, handing out pens to the dozen or more industry stalwarts who would be standing, smiles turned up all the way, at his side.

The signing could have been turned into a feel-good moment and some positive publicity for a White House that has recently been getting beat up in the news.  It could have been spun to depict a presidency that was doing good things for people.

But that didn’t happen. 

Instead, while the President did sign the law, such signing was only given cursory mention in his signing statement.  The remainder of the statement seemed to be critical of at least some parts of Magnuson-Stevens, and even of S. 1520 itself.

Reading the statement, it’s impossible not to get the feeling that the President signed the bill despite reservations, and perhaps even that, at one point, he might have been thinking about not signing at all.

The big question now is, “Why?”

The signing statement provides a few clues.

Begin with the comment that “The Act, however, further strengthens the Regional Fishery Management Councils.”  

That’s just not true.  The Modern Fish Act, as passed, calls for a couple of studies, explicitly allows the regional fishery management councils to use “alternative” management measures to manage recreational fisheries—something that have already been doing for some time—and authorizes some new approaches for gathering data, particularly data related to recreational fisheries.  But that’s all.  It doesn’t expand the powers of the councils at all.

The same theme is echoed in the next sentence, which states, in part, that “The power of these Councils has steadily increased over time.”  

Yet that is also a dubious assertion.  The purpose of the regional fishery management councils, as the statement itself notes, is to “promulgate fishery management plans,” along with related management measures, and that purpose—that “power,” if you will—has been essentially unchanged since the Fishery Conservation and Management Act first became law 42 years ago.

If anything, the “power” of the regional fishery management councils has actually decreased, not increased, over time, first in 1996, when the Sustainable Fisheries Act first put real limits on the exercise of such councils’ discretion by requiring them to end overfishing and rebuild overfished stocks by a legally-established deadline, and again in 2006, when the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act further limited councils’ discretion by requiring that annual catch limits be established for every managed stock, by requiring that such limits not exceedharvest levels established by each council’s Scientific and StatisticalCommittee, and by requiring that fishermen be held accountable for any overfishing that they might do.

When you see the White House make two questionable statements in less than three full sentences, you have to wonder where the source of such errors lie.  The answer to that question might lie in the assertion that the councils’ purported rising power was “raising constitutional concerns related to the manner of the appointment and removal of their members and members of certain scientific and statistical committees that assist them.”

Because that statement is entirely true.  People are making claims that the council appointment system is unconstitutional.  

But the folks who are making such claims—which are few, and have not yet been upheld by a court—are neither law professors, judges, nor Constitutional scholars, but instead fishermen trying to overthrow the federal management process.  The most recent challenge came in Goethel v. U.S. Department of Commerce, a matter decided by the U.S. Court of Appeals for the 1^st Circuit in 2017.

David Goethel trawls for cod and other New England groundfish and, as the court decision explains,

“alleged that the entire [Magnuson-Stevens Act] regulatory framework was unconstitutional…he alleged that the regional [fishery management councils] are improperly constituted, in violation of the Appointments Clause, U.S. Const. art. II [section] 2, cl. 2, because members of the councils are ‘inferior officers’ whose appointments could thus only be vested ‘in the President alone, in the Courts of Law, or in the Heads of Departments.’  Goethel argues that because the governors of the various coastal states are involved in nominating individuals to the councils, and because state executive officials are not among the permissible entities in which Congress can vest the appointment power for inferior officers, the councils are constitutionally infirm and actions taken by those councils, including the Northeast Multispecies [Fishery Management Plan], are void…”

It’s a creative argument, made by someone who wants to be able to kill a few more cod than the New England Council allows, and there’s still a chance that it might even be valid.  But because Goethel filed his lawsuit too late, it was ultimately dismissed on statute of limitations grounds, without the court ever having to decide on its merits.  (I suspect that the merits are few, as a strict reading of the Appointments Clause shows that it addresses just that—appointments, which in the case of the councils are made by the Secretary of Commerce, a “Department Head”—and does not describe how candidates for appointment may be nominated, but I am not a federal judge, and could easily turn out to be wrong.)

Much of the New England trawler fleet opposed the Modern Fish Act, and it’s not hard to picture some of them trying to convince the President to veto the bill.  There’s no clear proof of that, of course, but the fact that the White House statement raises the constitutional issue, something that is outside of mainstream legal thought, strongly hints at their involvement.

In the end, that didn’t matter for the Modern Fish Act, which did become law.  But what does it mean for Magnuson-Stevens reauthorization, which is likely to occur during this session of Congress?

We can hope that another bad reauthorization bill, such asH.R. 200, won’t again get passed in the House, where pro-conservation legislators seem to now hold the upper hand. 

But what if the Senate and House agree on a good bill, that will promote more effective fishery management, perhaps by placing more emphasis on forage fish and habitat issues?

If a bill like that made it to the President’s desk, would it be signed?  Or would backward-looking members of the fishing community, more intent on today’s harvest rather than the future health of fish stocks, manage to scuttle the effort?

Only time will tell.  But the signing statement that accompanied S. 1520 suggests that we might have reason to worry.