MONITORING MARINE FISHERIES; OR, SHINING SOME SUNLIGHT ON FISHERMEN'S ACTIONS

 Marine fishery resources belong to the public.

That’s obvious—so obvious that I shouldn’t have needed to write it down—but sometimes, fishermen seem to think that such resources belong to them, and that they need not be fully accountable to the public for the fish that they catch, and how they go about catching them.

We’ve seen that sort of thing in the news over the past few weeks.

Down in the Gulf of Mexico, there are some charter boat owners who don’t want the government to know whether they’re out fishing or not.  They’re upset because the National Marine Fisheries Service adopted a rule that, as NMFS describes it,

“requires an owner or operator of a vessel with a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species (hereafter referred to as a Gulf for-hire vessel owner or operator) to submit an electronic fishing report (also referred to as a logbook), via NMFS-approved hardware and software, for each fishing trip before offloading fish from that fishing trip.  If no fish are landed, the electronic fishing report must be submitted within 30 minutes after the completion of the fishing trip.  This final rule also requires a Gulf for-hire vessel owner or operator to notify NMFS prior to departing for any trip and declare whether they are departing on a for-hire trip or on another trip type.  If the vessel will be operating as a for-hire vessel or headboat during the specified trip, the vessel owner or operator must also report details of the trip’s expected completion.  Lastly, this final rule requires that a Gulf for-hire vessel owner or operator use NMFS-approved hardware or software with global positioning system (GPS) location capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS…”

 As a result, some of those for-hire owners/operators engaged an organization that calls itself the “New Civil Liberties Alliance” to challenge NMFS’ new regulation.  The New Civil Liberties Alliance describes itself as

“a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State.  NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.”

Such rhetoric probably tells everyone all they need to know about the New Civil Liberties Alliance, and about the Gulf for-hires’ lawsuit—which, it should be noted, is not supported by many members of the Gulf’s for-hire fleet—but just in case anyone has any doubts, I’ll just note that the plaintiffs are arguing that the Fourth Amendment prevents NMFS from monitoring a vessel’s location absent a court-issued “warrant or any suspicion of wrongdoing.”  Plaintiffs’ counsel has said things like

“Everyone who engages in recreational fishing should be livid that the government has asserted a right to monitor your whereabouts at all times because you might be using the fishing resource.  There is no reason to think this incredible invasion of our clients’ constitutional rights, if tolerated, will not be extended to any sportsmen who take fish from America’s waters.

“To give bureaucrats the right to search you at any time on the off chance you are fishing makes our constitutional protections flimsy indeed…”

I’m not sure whether anyone told that attorney, but the United States Coast Guard may board a vessel to do a safety and/or a fishery inspection just about any time that it chooses—a couple of years ago, I had a Coast Guard boarding party pop up out of nowhere when I was shark fishing more than 25 miles offshore—so it’s unlikely that requiring a vessel monitoring system that only provides a location rises to the level of a constitutional affront.

Not surprisingly, given such lines of argument, the plaintiffs lost at the trial level, and the case is now on appeal.

But even taking that case’s merits—or lack thereof—off the table, one has to wonder what some of those for-hire operators are trying to hide.  Are some of them possibly playing a little fast and loose with the regulations that protect the public resources that they pursue?  If not, why go to the time and trouble make a literal federal case out of the new regulation? 

After all, isn’t the public entitled to know that, to the extent practicable, their interests in such resources aren't being abused?

We can see something similar happening up in New England, where the same New Civil Liberties Alliance is representing some members of the industrial fishing fleet, who are challenging NMFS’ decision to require industry-funded observers on the big herring boats that pull mid-water trawls.

Once again, they lost at the trial level, and are taking the matter up on appeal.

To put the controversy in context, Atlantic herring are overfished; abundance has fallen so low that Canada completely shut down its herring fishery earlier this year.  The Atlantic herring fleet also kills a substantial number of badly depleted river herring, a term that encompasses both alewives and blueback herring, as bycatch in the course of its fishing activities.

Given those facts, it hardly seems unreasonable for NMFS to require that the industry respoinsible for at least some of such harm to a public resource pay for the observers needed to monitor just how much harm might be occurring.  However, that idea doesn't sit well with the industrial herring fleet which, through the New Civil Liberties Alliance, argues that Congress did not expressly authorize industry-funded observers, and thus that NMFS lacked the power to require them. 

In the words of Meghan Lapp, a manager at Seafreeze, Ltd., a large fish processing operation, industry-funded observers are

“the equivalent of having a cop in your car who’s policing you while you drive, and you have to pay his salary out of your own pocket.”

While that might be an evocative quote, it’s far from a perfect analogy.  Roads are a public asset.  Everyone can and does use them, at least everyone over the age of 16 who chooses to get a drivers’ license.  On the other hand, while herring are a public resource, held in trust for every citizen of the nation, only a very small handful of those citizens are given the privilege of converting a significant portion of that public resource into a vehicle for private profit.

It's far from unreasonable to expect those same privileged few to provide the public with some assurance that the resource isn’t being damaged by their actions.  To expect the public to underwrite the fleet's responsibility to monitor its impacts on a public resource is, in my view, asking a little too much.

But then, the fact is that many fishermen just don’t like then government, or anyone else, to know just what they are doing, regardless of who is paying for the monitors.  

That message came through loud and clear in the northeast, after the NMFS approved a New England Fishery Management Council decision to require 100% observer coverage in the groundfish fleet.  The coverage didn’t have to be live observers—video recording was approved as well—but so long as sufficient government funding was available, every boat in the groundfish fleet must have either a human or electronic monitor on board.

The Conservation Law Foundation, a New England-based organization that has long called for better management of cod, flounder and other so-called “groundfish,” heralded NMFS’ decision to require 100% observer coverage.  It noted that

“The current program assumes that the data collected on observed trips is representative of activity on unobserved trips.  But that’s not the case.  Analyses show that when an at-sea monitor is on board, fishermen alter what they catch and keep.

“Ultimately, the current monitoring program collects inaccurate data, particularly for overfished species like Atlantic cod.  Without accurate numbers, fishery managers cannot prevent overfishing or rebuild cod—as required by law.”

But fishermen don’t want to be on their best behavior all the time, as they are when a monitor is on board.  Sometimes, when they catch far too much of an overfished, highly regulated stock, such as cod, it just makes sense to quietly slip all the dead, excess fish over the side, leaving no one the wiser, so regulators won’t feel compelled to reduce quotas to account for all the dead discards.  Requiring 100 percent of the boats to carry monitors could make it nearly impossible to dispose of such excess fish without having to report the dead discards to NMFS.

Thus, as the Gloucester Times reported last March,

“Not everyone is on board.

“’They want to go 100% observer coverage.  I’m not in favor of it,’ said Gloucester Fisheries Commission member Joseph Orlando, owner of the fishing vessel Santo Pio, and president of the Northeast Fishery Sector II…

“’The discard rate should already be set,’ he said.  What this is all about, he said, is a lack of trust in fishermen, and regulators being pushed ‘by the environmental people.’  The cost of an observer, which he says the government pays for, is about $700 to $800 a day.  He said if fishing vessels had to pay for that, ‘It’s all over.’

“When asked about the use of electronic monitoring to lessen the expense or logistics of having an observer on board, Orlando asked if one would want cameras trained on them at their workplace.

“’All it comes down to is trust,’ Orlando said.  ‘They have no trust in us whatsoever.’”

What he never said, or even tried to explain, is why any such trust would be justified.  As noted in the Conservation Law Foundation press release quoted above, there’s pretty good reason to believe that fishermen act differently when they know they’re being watched than they do when they know that they’re unobserved.  Thus, they seem to fall short of the ethical standard set by the mid-20^th Century ecologist Aldo Leopold, who observed

“Ethical behavior is doing the right thing when no one else is watching—even when doing the wrong thing is legal.”

Which explains why monitors—whether live or electronic—and things like vessel monitoring systems are needed, whether fishermen like them or not.  Because if you want those fishermen to do the right thing, it’s a pretty good bet that you have to watch them—and let them know that you’re doing it.

Otherwise, no one knows what they’ll do.

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