A couple of months ago, I
wrote about the House “discussion draft” of a bill reauthorizing the
Magnuson-Stevens Fishery Conservation and Management Act. That was a pretty frightening draft that would
gut the most important provisions of federal fisheries law, and could well take
us back to the sort of unregulated overfishing that collapsed stocks along
every coast of the United States.
When I closed that piece, I noted that the Senate was still
working on its own initial “discussion draft,” and that I thought it would
probably take a more rational approach than that taken by the House.
That
Senate draft was finally released around the middle of last month, and I
was relieved to learn that my guess was correct. While the Senate draft isn’t perfect, it is
far better than the proposed House bill.
It includes a couple bad provisions that need to be removed, and some
other ambiguous and potentially harmful constructions that ought to be
revised. But it also contains some very
good provisions that will move the fishery conservation effort forward.
All in all, it isn’t a terrible initial effort. With a little work and cooperation, could
easily be shaped into a worthy bill.
The draft was authored by a bipartisan committee drawn from
many different states, and contains language supported by a majority of the
committee members. But as one reads the
language of the proposed bill, one can’t help but believe that a lot of the
credit has to go to Senator Mark Begich of Alaska, who has taken principled
stands on conservation issues before—most recently, his courageous opposition
of the so-called Pebble Mine, which posed an existential threat to the rich
Bristol Bay salmon fishery—and comes from a state that daily reaps the benefits
of enlightened fisheries management measures.
The biggest single issue of this Magnuson reauthorization cycle
is the concept of “flexibility.” I
addressed the issue generally in an earlier essay; noting that, while it
sounds like a reasonable idea, “flexibility” has become a euphemism for
continued overfishing—something that is anything but reasonable. The House draft has fully embraced that
approach, and incorporates a host of provisions that would allow such
overfishing to continue unabated for extended periods and would likely pose
real barriers to ever fully rebuilding still-overfished stocks.
The Senate draft takes a more rational approach.
It would make the rebuilding provisions species-specific,
establishing a rebuilding time equal to the minimum time it would take to
rebuild the stock (presumably if no fishing at all took place, although that
should be clarified in the draft bill) plus one mean generation time—the
average time it would take a member of such stock to reach reproductive
maturity.
Linking the rebuilding time to such species-specific periods
should eliminate objections to the current 10-year rebuilding period by those
who claim that it is “arbitrary”; at least in theory, rebuilding times under
the Senate formulation could be either longer or shorter than 10 years.
Unfortunately, there’s not enough available fisheries
science to determine mean generation times and minimum rebuilding periods for
many stocks. The authors of the Senate
draft have thus wisely provided that, when fisheries scientists are not in
general agreement on the length of such periods, the current 10-year deadline
would remain in effect.
Species-specific provisions would seemingly eliminate the
need for language that currently extend rebuilding periods beyond the 10-year
default for biological or environmental reasons. However, the Senate draft retains such
provisions; in order to keep a court from reading the statute in an unintended
manner, such exception language should be revised.
Yet even if some of the rebuilding language of the Senate
draft needs to be tweaked a bit, that draft enters upon important new ground
when it recognizes the need to manage forage fish not only for harvest, but to
assure that there are enough around for other fish to eat. Arguably, the new language doesn’t go far
enough—it doesn’t assure that all forage species will be managed, and doesn’t
consider the forage needs of marine mammals, birds, etc.—but it represents real
progress all the same. So does an
additional language that sets out guidelines to regional fishery management
councils who would like to manage resources on an ecosystem basis.
As anglers, we should be pleased by the inclusion of
language that would establish standards for the regular review of the allocation of fish made
to the recreational and commercial sectors.
Such regular reviews would help alleviate the current situation, in
which sectors are locked into allocations that reflect harvest and demographic
patterns that existed in the past—often decades ago—rather than those that
reflect today’s realities or the future needs of the nation.
The Senate draft would also require—subject to available
funding and absent explicit waiver by the agency—that existing stock
assessments be updated on a regular basis, and that currently unassessed stocks
be promptly subject to stock assessments.
That can only be a good thing for everyone.
Having said that, the bill contains some unfortunate language,
too.
Probably the single worst provision is one which would
include information obtained from sources such as “fishermen, fishing
communities…and other appropriate entities” within the definition of “best
scientific information available” and authorize its use to “form the basis of
conservation and management measures as required” by the law.
Let’s be honest.
Anecdotal information provided by fishermen interested in the outcome of
a management decision does not constitute the kind of objective data that can
be labeled “scientific information.” Fisherman
don’t gather their information objectively; bias is unavoidable.
Even in the best of circumstances, their very
expertise and experience on the water is likely to lead to false conclusions,
for a good fishermen can rely on accumulated knowledge and experience to find
fish even when stocks are in serious decline.
That doesn’t mean that fish are abundant, even though fishermen often
interpret their success in that way.
Anyone who has spent much time at fisheries hearings has
heard the three timeless mantras of fishermen who hope to avoid
regulation: “There’s plenty of fish out
there—you just don’t know where to find them,” “The decline’s not our fault,
it’s just ‘The Cycle’” and “They just went somewhere else; they’ll be back in a
while.”
The thought of such comments being treated as “the best
scientific information available” boggles the mind; these sections just have to
go.
Another big problem arises out of a concept newly introduced
in the Senate draft, that of “non-target fish.”
Such “non-target fish” are defined as “fish that are caught incidentally
during the pursuit of target fish in a fishery, including regulatory discards
which may or may not be retained for sale or personal use.” That definition provides a lot of opportunity
for mischief.
The first obvious problem is the phrase “caught incidentally
during the pursuit of target fish in a fishery,” since that can mean just about
anything, from an obscure species of grunt or grouper that occasionally comes
up when folks fish for snapper to broadbill swordfish killed by a squid
trawler’s net. A species may be a
“target fish” in one fishery and a “non-target fish” in another. And that is a real issue, because “non-target
fish” aren’t given all of the protections that “target fish” enjoy.
Certainly, the blurred line between “bycatch” and
“non-target fish” creates ambiguity. As
just one example, “non-target fish” includes fish that are “caught incidentally…which
may or may not be retained for sale or personal use” while “bycatch” includes
“non-target fish that are harvested in a fishery and retained.”
So when does a minor component of a mixed-stock fishery stop
becoming a “target fish” (i.e., “a fish that is caught for sale or personal
use”) that needs to be managed pursuant to the act, and becomes “bycatch” as a
“non-target fish that [is] harvested in a fishery and retained” for sale or
personal use?
Just looking at the New England groundfish fishery, how
would such provisions impact such badly overfished species as Atlantic halibut,
spotted wolfish or ocean pout? And down
south, where ecosystems are far more diverse, how many reef fish, from goliath
grouper to the smaller wrasses, grunts and groupers, will be put in harm’s way
if the catch of “non-target species” is no longer subject to accountability
measures and other protections provided by current law?
The notion of “non-target fish” is badly in need of
rethinking.
But then, it’s rare that anyone gets something perfectly
right on the first try.
The Senate discussion draft is a full 90 pages in length,
far too long for a single blog post. So
I only provided the highlights most likely to interest anglers, and left out
the species-specific stuff.
Given the difficult political climate in Washington, it makes
a good starting point for legislation that not only maintains, but improves,
the health of our fish stocks over the next decade or so.
But that’s not going to happen by itself. There are plenty of folks out there, mostly
from the commercial fishing industry but, unfortunately, from the underside of
the angling community as well, who would gut the Magnuson Act’s most important
provisions in order to add a bit of weight to their wallets. They can easily win if responsible folks stay
disengaged.
Throughout the reauthorization process, I will be making
periodic comments on the progress, and setbacks, that occurs. I urge you to follow the process yourself, to
contact your elected representatives and to demand that our salt water fish
stocks be managed for health and abundance, so that you can enjoy the benefits
of fishing in a bountiful sea.
Otherwise, we can go back to the way it was before the ’96
Act.
I was there.
Fishing in a largely empty ocean just wasn’t much fun.
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