Commercial fishing is undoubtedly one of the oldest businesses
still pursued by mankind. Nonetheless,
it is a business, although in some ways, it isn’t always treated
as one.
I was reminded of that a few days ago, when I was wasting
time perusing the Internet, and came across a
post directing me to the online petition site Change.org, and a petitioner’s
plea to
“Allow transfer of commercial fishing licenses beyond family
in New York.”
The petitioner seeking such change argued, in part, that
“The closure of the Horseshoe crab fishery has personally
impacted me and many others in New York State who rely on commercial fishing for
their livelihood. This sudden change has
limited our ability to source bait, creating a significant economic strain on
us and our families. With the current
regulations, commercial fishing licenses can only be transferred within a direct
family lineage, which further restricts opportunities for those needing an
alternative or additional income stream…
“…the restrictive nature of transferrable fishing licenses limits
entry into the industry and makes it difficult for lifelong and aspiring
fishermen to sustain their livelihoods…
“The amendment to allow transferability of fishing licenses
beyond direct family members is a crucial step towards economic resilience. By introducing a more flexible license
transfer policy, we can ensure that those impacted by changes or closures in
specific fisheries, like the Horseshoe crab, have viable alternatives to earn a
living.
“…other states have successfully implemented similar
policies, strengthening their fishing sectors while promoting fair access and
encouraging growth. New York can follow
a similar model that respects family heritage while recognizing the practical
needs of the industry to adapt to evolving environmental and economic
challenges…”
I don’t know the petitioner, but from what he wrote, it
sounds like he has been commercially fishing for either eels or whelks, or
maybe for both, he is worried that New
York’s recent ban on horseshoe crab harvest, which will be phased in over the
next four years, is going to make it impossible for him to get bait for his
traps, and he sees his commercial fishing business headed for economic
ruin. (Egg-bearing, female horseshoe
crabs have long been the preferred bait for both whelks and eels. Fishermen claim that no other bait is even
remotely as effective, and one eel potter recently told me that, once the full
ban on horseshoe crab harvest goes into effect, he might as well sell his pots,
because the lack of good bait will put him out of business.)
It's not clear what license he is seeking to transfer, but he’s
probably either trying to sell his license to fish for whelks while it still
might be worth something to someone, or trying to purchase a license to fish
for other things in order to maintain his commercial fishing lifestyle.
It doesn’t seem like an unreasonable thing to do. The problem is that New York law doesn’t
permit those sorts of transfers. Section
13-0335 of the state’s Environmental Conservation Law explicitly states that
“Licenses…shall be non-transferable and shall expire on the
last day of December of each year,”
although a license holder has the right to renew their
license each year.
Yet, when one looks a little deeper, it seems that “non-transferrable”
doesn’t mean that a fishermen can’t transfer a license to anyone, for section
13-0328 of the Environmental Conservation Law provides that
“the department [of Environmental Conservation] may permit
reissuance of a license or permit to a member of the immediate family of the
prior holder of such license or permit, provided that the individual to whom
the license or permit is being issued is at least sixteen years of age. The department may permit a license or permit
holder to designate in writing a member of his or her immediate family to whom
the license or permit shall be reissued in the event that the license or permit
holder dies prior to surrendering his or her license to the department.”
So, even in New York, a commercial fishing license is
transferrable, presumably for no charge (although that’s not necessarily true),
to a member of one’s immediate family, which is broadly defined as a
“spouse, sibling, parent, child, grandparent, grandchild,
and, in addition, all persons who are related by blood, marriage, or adoption
to the permit holder and domiciled in the house of the licensee or permit
holder,”
but not to a member of the general public.
Except, even that isn’t completely true, because another paragraph
of 13-0328 provides that
“In the event that a designated immediate family member does
not wish to engage in the commercial fishing activities authorized by such
license or permit, the department may permit such person to identify an
alternate person to whom the license or permit shall be reissued…”
In essence, what the state has effectively done is prevent a
fisherman from selling their license or permit, and perhaps from selling their business
as a going concern by packaging their boat, traps, nets, and/or other gear used
to prosecute the fishery along with that license or permit, while they’re alive,
and perhaps providing themselves with some retirement money by doing so, while
allowing such fisherman’s heir (provided the “immediate family” qualification
is met) to sell the same license to an unrelated third party, and enjoy the
proceeds of that sale, once the fisherman is dead.
Somehow, that seems a little unfair.
Of course, there is also the question of who qualifies for a
commercial fishing license in the first place.
Section 13-0328 also provides that
“licenses shall be issued only to persons who demonstrate in
a manner acceptable to the department that they received an average of at least
fifteen thousand dollars of income over three consecutive years from commercial
fishing or fishing, or who successfully complete a commercial food fish
apprenticeship…”
which narrows down the pool of potential commercial
fishermen considerably, but doesn’t seem to make to much sense from a business
perspective.
After all, as noted at the very beginning of this post,
commercial fishing is a business.
And it is a very technically and physically demanding business,
particularly when prosecuted at a small scale, where fishermen typically need
to have a working knowledge of navigation, mechanics, vessel maintenance, weather,
oceanographic conditions, fish movements and behavior, how do deploy and
maintain fishing gear, first aid, and at least the rudiments of fiscal planning
and marketing, to even have a prayer of running an economically successful
operation, while at the same time putting up with the physical discomforts, injuries,
and dangers inherent in running a boat at sea under often hostile conditions.
So why limit the transferability of licenses/permits—effectively,
the transfer of a fisherman’s business—to a fishermen’s immediate
family during a fisherman’s life, but allow the transfer to anyone—or, at
least, to anyone who meets the qualifications to hold a commercial license—after
that fisherman’s death?
If a fisherman’s heir can benefit by selling the deceased
fisherman’s permit, why shouldn’t the fisherman be able to enjoy the same benefit
while he/she is still alive?
Some might argue that, while the permits are generally non-transferrable,
the state has carved out a special exemption that allows a fishing-related
business to stay in the family if a fisherman retires or dies. But if that is the case, why allow a fisherman’s
heir to sell the permit, if the fisherman couldn’t do the same?
Wouldn’t it make more sense to allow the fisherman to
transfer the license/permit to a family member if he/she chose to do so, but to
sell it to an unrelated person if the fisherman thought that was the better
thing to do? Whether a permit was sold
by a fisherman before his/her death, or by the fisherman’s heir after death, it
will go to an unrelated third party either way, so it’s hard to see what state
policy is better served by prohibiting fishermen from making such transfers.
The requirement that a commercial fishing license can only
be issued to someone with previous fishing experience also seems difficult to
defend.
Certainly, commercial fishing requires certain knowledge,
skills, and abilities, and a person would be foolish to invest capital in a
license and equipment unless they knew that they had the requisite abilities to
be successful. But the same can be said
of many businesses. It’s certainly true
of restaurants, but no law in the State of New York requires someone to spend
three years as a line cook before opening up a café. Landscaping requires certain knowledge and
skills, but anyone with a truck, some tools and the requisite insurance (and a
pesticide certification if that service is offered) can get into the business
without any prior experience trimming shrubs or cutting lawns.
Why should commercial fishing be any different?
Is it merely because fishing communities want to take care
of their own, and provide a pathway for deck crew to move into the wheelhouse? While that sort of sentiment is understandable
at some level, it shouldn’t be memorialized in state law, which serves best
when it provides the greatest economic opportunities for everyone, regardless
of their background.
A fisherman—or, as the law currently stands, a fisherman’s
heir—should be able to sell a commercial license to whoever offers the best
price, regardless of previous experience or the likelihood of commercial
success. Selling for the highest price
that the market will bear is, after all, the goal of free enterprise. Limiting potential buyers by requiring prior
fishing experience virtually guarantees that the highest possible price for the
license will not be realized.
It would seem that if someone may buy a gas station,
delicatessen, dairy farm, or meat packing plant—all of which come with their
own environmental, licensing, and/or food safety considerations—without having
to demonstrate previous experience in the field, it’s difficult to make a business
or policy argument for placing the current restrictions on buying a commercial
fishing business, restrictions that can prevent the seller from maximizing the
proceeds of the sale.
Yet those restrictions are there, largely because the
commercial fishing business, like ranching, logging, and the family farm, have
been romanticized in popular culture, which leads to them being viewed differently
in the law.
But that is all an illusion.
A commercial fishing business is no less a business than a tire
shop, hardware store, or the local gym.
It should be regulated only as much as necessary to conserve fish stocks
and keep them sustainable in the long
term, protect the lives and the health of fishermen, and protect the health of
those who purchase the fishermen’s products.
Economic issues are something that only the fishermen and
the marketplace should decide.
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