Sunday, November 20, 2022



Elections have consequences, so for as long as I’ve written this blog, I’ve taken the time, after every election, to examine the results and consider what they might mean for fisheries management.

In that context, the 2022 midterms were both somewhat surprising and somewhat consequential, whether we look at the state, regional, or federal level.

At the state level, the news is mildly positive.  

In New York, Governor Kathy Hochul, who assumed her post after Andrew Cuomo, the former governor, resigned in the face of sexual harassment charges, was elected to a full term.  She defeated the notably conservation-hostile Congressman Lee Zeldin, who earned himself a spot in the fisheries hall of shame after repeatedly trying to open up some federal waters to striped bass harvest and by supporting H.R. 200, the so-called Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.  Both efforts, had they succeeded, would have weakened the conservation and management provisions of federal fisheries law.

Soon-to-be ex-Congressman Zeldin further tarnished his name in fisheries conservation circles in 2019, when he issued a press release which attacked New York’s representatives on the Atlantic States Marine Fisheries Commission for failing to support the use of “alternative data” (i.e., misinformation) to manage the striped bass resource, while asserting a number of alternative facts—what most of us, if we were feeling particularly charitable, might discreetly call “inaccuracies”—in support of his own positions.

So the fact that he will soon be out of any position that might give him a chance to degrade our fisheries resources was certainly a bit of good news.

Down in Maryland, Governor Larry Hogan was forced to leave office due to term limits.  While Governor Hogan’s overall record suggests that he, unlike Congressman Zeldin, belongs to the sane wing of the Republican Party, he had an uncomfortably close relationship with the Maryland watermen and the state’s charter boat community, a relationship that often forced Maryland fisheries regulators to take unwise positions, particularly with respect to striped bass conservation, both at the state and at the ASMFC level.  Hopefully, Governor-elect Wes Moore will prove to be a better steward of Maryland's living marine resources.

Thus, we had at least two favorable election results at the statehouse level, which will probably also impact the positions taken by the affected states at the ASMFC.  There were no clearly unfavorable election results to offset those wins.

At the federal level, the news is a little harder to parse.

In the House of Representatives, the news seems to be both good and bad.

On the good news side of the ledger, it looks as if Rep. Mary Peltola (D-AK), who won her seat earlier this year in a special election held to fill the vacancy caused by the death of Rep. Don Young (R-AK), will be able to keep that seat for the duration of the 118th Congress.  Although the election result isn’t yet final due to the delay in tallying votes caused by Alaska’s vast area, the need to count absentee ballots, and the state's its ranked-voting approach to elections, Rep. Peltola’s lead is currently large enough to make her victory likely.  That’s good news, because she is very informed about marine fisheries issues, and has promised to spend a significant share of her time in Washington on efforts to improve the management system.

On the bad news side, the fact that the Republican Party has taken control of the House dooms Rep. Jared Huffman’s (D-CA) efforts to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act.  Rep. Huffman’s Sustaining America’s Fisheries for the Future Act, H.R. 4690, would have, among other things, rendered the federal fishery management system more responsive to changing oceanic conditions, and would also have made significant improvements to the conservation provisions of federal fisheries law.  While the bill was favorably voted out of committee, other obligations of the 117th Congress make it virtually certain that the bill won’t get a vote on the House floor.

Unfortunately, that doesn’t mean that a Magnuson-Stevens reauthorization bill won’t be introduced in the next session of Congress.  It is no impossible that representatives from one or more of the states bordering the Gulf of Mexico, many of whom have a strong influence on Republican policy, will try to introduce an H.R. 200-like bill, intended to weaken federal fisheries management efforts, at some point during the 118th Congress. 

It is more likely that any House fisheries legislation will be more narrowly drafted, with Congressmen sympathetic to the recreational fishing industry, and to industry organizations such as the Center for Sportfishing Policy, introducing legislation similar to the original version of the so-called “Modern Fish Act,” introduced in 2017, which would relieve the recreational fishing sector from much of the burden of fisheries management, and allow anglers to harvest more fish than good science, good law, or good sense would otherwise permit.

It is also possible that any bill that emerges will be focused even more narrowly; bills intended to undercut federal management of the recreational red snapper fishery in Gulf of Mexico have been filed in other sessions of Congress, and there is no reason to believe that recreational red snapper legislation will not make another appearance in the 118th.  Zeldin-like legislation to allow striped bass fishing in federal waters could also emerge, as could legislation aimed at limiting the use of limited access privilege programs—more commonly known as “catch shares”—in commercial fisheries.

On the other hand, there is no reason to believe that a Republican-controlled House will be universally hostile to fisheries conservation bills.  In the past, some of the most important marine conservation legislation has been supported by Republican legislators and Republican presidents, most notably Senator Ted Stevens (R-AK), Representatives Wayne Gilchrist (R-MD) and Don Young, and Presidents George H.W. and George W. Bush.  Some fisheries issues, perhaps including improving and modernizing the recreational and commercial data collection process, could gain bipartisan support, and produce viable legislation.

In the Senate, control remains in Democratic hands, so the upper chamber is likely to prove an important check against any conservation-hostile bills that might be passed by the House.  There is also a real possibility that meaningful legislation, perhaps addressing the need to better protect forage fish or to improve the data collection process, might be introduced in the Senate.  However, even if such legislation is passed, there is no guarantee that it could avoid a Republican filibuster, nor is there any guarantee that, even if a filibuster did not occur, it could attract the votes needed for passage.

As always, the fate of fisheries legislation in the Senate or, for that matter, in the House, will depend not only on such legislation’s intrinsic merits, but on how it affects local fisheries and, perhaps more important, whether any negatively-impacted fishery lies within the state or district of a legislator influential enough to kill the bill even before it reaches the floor.

Having said that, the odds of any meaningful fisheries legislation being passed by the Senate over the next two years is not particularly good, although a particularly compelling bill—or, at least, a bill that is sufficiently compelling to garner the support of a few key senators—might still make it through.

Should legislation be passed by both houses of Congress, the White House remains the ultimate arbiter of whether such bill becomes law (yes, there is always the chance of Congress overriding a veto, but given the politics that exist at this time, that’s probably not a realistic possibility, at least in the fisheries arena).  

We can probably expect any fisheries-related bill that makes it to the President's desk to have enough bipartisan support that it will be signed into law; there is no reason to expect that such bills will be vetoed, unless important diplomatic or financial issues are somehow involved.  We can probably also expect that any bill that significantly undermines federal fishery conservation law and/or policy will be vetoed, although the Administration’s view of whether a bill “significantly undermines” the public good might be different from the views of either Congress or conservation advocates.

At this point in time, the consequences of the recent midterms do not seem to be as bad as they could have been, or as bad as many people expected them to be.  There will be no likely rollback of major provisions of Magnuson-Stevens, there will probably not be a successful legislative effort to otherwise undercut the federal fishery management system and, at the ASMFC level, we may see at least one state return to the pro-conservation side of the debate.

Federally, inaction is a far more likely scenario than any adverse action and, regrettably, far more likely than any positive action as well.  Even so, that leaves us, and the nation’s marine resources, in a far better place than they could have been in, had a few close elections gone the wrong way.


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