IS ANYONE LISTENING? THE ROLE OF PUBLIC COMMENT IN FISHERIES MANAGEMENT

 

I’m not sure how many fisheries meetings I’ve attended over the years, but seeing that I started soon after the striped bass stock collapsed back in the late 1970s, and have continued ever since then, the number is far from small.  I’ve spoken, submitted written comments, sat on a regional fishery management council and on various advisory boards, and generally spent a lot of my life arguing for healthy and sustainable fish populations.

A lot of other people have done similar things.

But as we invest our time and effort trying to improve the management process, there is one nagging question that stays in our minds:  Are fisheries managers really listening, and do they care what we say?

A few decades ago, I had a brief conversation with someone at the National Marine Fisheries Service that shed some light on that question.

Bluefin tuna was a hot issue at the time.  The stock had declined badly, and the International Commission for the Conservation of Atlantic Tunas, weighed down with members from Europe and East Asia that were reluctant to reduce their landings, was slow to take any meaningful action.  However, sometime around the late 1980s or, perhaps, early 1990s, they finally began to reduce nations’ quotas.

In response, the National Marine Fisheries Service proposed regulations to reduce the landings of United States’ fishermen, regardless of whether they fished from purse seiners, longliners, or private recreational boats, and a lot of people weren’t too happy about where things were going.  

Back in those days, NMFS used to hold hearings on highly migratory species like tuna at a Holiday Inn near Long Island’s Islip/MacArthur airport, and those hearings drew a colorful crowd.

There were crews off the big pelagic boats—mostly longliners, with maybe some purse seiners thrown in—who came down from Gloucester on a rented bus with enough beer on board to keep passengers happy throughout the ride; they’d settle into the hearing room with both hands filled with drinks from the hotel bar, and opposed the proposed rules with comments that were undeniably colorful if, perhaps, not completely coherent.

There were local commercial—general category—boats who provided more sober comments opposing the pending regulations.  More opposition came fromn the charter boat fleet, which argued that if their passengers could only keep one—or perhaps it was two—school bluefin apiece, it would most assuredly put the boats out of business, although they might be able to survive if the captain and mate could each keep a fish, too.

There was one guy—I don’t recall his affiliation—who tried to argue that bluefin weren’t really in trouble, because a lot of the fish we thought were bluefin were really longtail tuna, a fish native to the western Pacific and Indian oceans that have never been found within maybe 7,500 miles of the U.S. East Coast, although that detail didn’t appear to concern the speaker.

And then there were folks like me, private boat anglers with various views of the proposed rules, which ranged from support to strong opposition.  I tried to base my comments on the available science, and the details provided in the document describing the pending regulations.  Others, I think, tried to do the same thing.

A week or two later, for reasons that I can no longer recall, I made a telephone call to the person at NMFS who had primary responsibility for the proposed bluefin rules.  When he picked up the phone, I introduced myself, and as soon as he heard my name, he said “You were the lawyer at the Long Island hearing.”

No fewer than thirty people, and probably well over forty, spoke at the Long Island event, and in the three minutes that they gave me to speak, I certainly never mentioned my profession, which was irrelevant to the subject at hand.  He remembered me simply because I stuck to the subject, referred to the proposed rule and the information provided by NMFS, and presented a logical argument in support of my position.  He guessed what I did for a living for the same reasons.

That experience revealed a couple of things about the rulemaking and management process that we would all do well to remember.

The first is that managers really do listen to the comments being made.  At the time of the bluefin debate, I attended fisheries meetings, but was nowhere near as involved as I became later on; there was no reason for anyone at NMFS to know who I was.  Yet the manager was listening to the comments closely enough to remember my name.

The other is that well-thought out and well-presented comments will stick in a managers’ mind, particularly when they contrast with many of the other comments made at the meeting; when a lot of people are just opposing (or supporting) a particular management action, without providing much of an explanation why, a calm and logical argument can stand out above the others.

So why bring this up today?

Largely because there has been a lot of recent talk denigrating the value of public comment in the fishery management process.  More specifically, a number of striped bass anglers are unhappy that the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board didn’t vote to reject even the possibility of commercial quota transfers when it met to consider Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan a few weeks ago.

Personally, I believe that such transfers are a bad idea.  But the fact that the Management Board chose to seek additional information before taking action, instead of merely rubber stamping the 2,000 or so comments—98% of all comments received—which called for a continued ban on quota transfers, doesn’t mean that it is “corrupt,” “was just checking the boxes” by calling for comments, or that it “doesn’t care what the public wants,” for the comment period isn’t a referendum.  The side with the most votes doesn’t necessarily win.

Nevertheless, public comment is vitally important to the management process.  Anglers shouldn’t refrain from making comments, simply because managers didn’t do what the majority asked for the last time around.

The role of public comment is easiest to understand on the federal level.  The Office of the Federal Register (the Federal Register being the publication in which all rulemaking activities, including proposed and final rules dealing with fisheries, must be published) provides “A Guide to the Rulemaking Process,” which is a very useful summary of how federal rulemaking works.  In the section “How do public comments affect the final rule,” the guide explains

“The notice-and-comment process enables anyone to submit a comment on any part of the proposed rule.  This process is not like a ballot initiative or an up-or-down vote in a legislature.  An agency is not permitted to base its final rule on the number of comments in support of the rule over those in opposition to it.  At the end of the process, the agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre-rule and proposed rule stages…

“If the rulemaking record contains persuasive new data or policy arguments, or poses difficult questions or criticisms, the agency may decide to terminate the rulemaking.  Or, the agency may decide to continue the rulemaking but change aspects of the rule to reflect these new issues.  If the changes are major, the agency may publish a supplemental proposed rule.  If the changes are minor, or a logical outgrowth of the issues and solutions discussed in the proposed rules, the agency may proceed with a final rule.  [emphasis added]”

Thus, while comments are an important part of the rulemaking process, the comments submitted are only a part of what regulators must consider.  Other factors can, and sometimes do, outweigh the comments received.  At the same time, by raising issues that might not have been considered, or were inadequately addressed before, public comments can have a significant impact on the course of rulemaking.  An agency must reply to every substantial issue raised during the comment process, and if such agency finds that a comment raises a legitimate legal or policy issue, such comment can cause a proposed rule to be reconsidered.

At the same time, agencies are far more concerned with the quality than the quantity of the comments received.  When confronted with differing claims or opinions, agencies are legally entitled to exercise their discretion in deciding which of the competing arguments will prevail.  However, such exercise of discretion is not unlimited; whatever decision an agency makes must be supported by some bit of evidence contained in the administrative record.  Decisions that are unsupported by such evidence are deemed to be an abuse of the agency’s discretion and, because they are unsupported by evidence, may be invalidated by a court undertaking a judicial review of the rule.

If an agency takes an action that is contrary to existing law, the courts will invalidate such action for that reason, too.  As Capt. John McMurray, who wrote a piece on the same subject for the Marine Fish Conservation Network’s blog, “From the Waterfront,” recently noted,

“when you consider species like summer flounder, black seabass or scup, well, I can tell you first hand as a Council member (years ago)—if the Council simply made decisions based on majority public comment with those fisheries, then I’m just about certain they would all be overfished right now.  Despite overwhelming public comment to increase harvest, managers focused on preventing overfishing and long term sustainability, primarily because federal law required them to.  [emphasis added]”

I sat on the Mid-Atlantic Fishery Management Council a few years before Capt. McMurray was appointed, and can vouch for that statement; meetings that set recreational summer flounder specifications, in particular, were often a circus, with speakers castigating and sometimes threatening Council members who failed to support the demands of the mob, even though such demands were clearly contrary to federal law.  In such cases, majority rule would have been equivalent to mob rule, and contrary to the public interest.

Yet, those who argue that managers must follow the majority’s wishes would yield to the cries from the crowd, regardless of their legal or scientific merits.

Although laws differ slightly from state to state, state administrative law is generally similar to the federal practice.  State agencies required to create an administrative record, and agency actions that are not supported by that administrative record will fail legal challenge.

When we get to the Atlantic States Marine Fisheries Commission, things are a little different.  That’s because the ASMFC is not a federal agency, but rather an interstate compact.  Because it is not a federal agency, a federal appellate court, in New York v. Atlantic States Marine Fisheries Commission, decided in 2010 that the federal Administrative Procedures Act, which governs federal rulemaking and sets the standards for judicial review of agency decisions, does not apply to the ASMFC.  Thus, it appears that courts can neither review nor set aside the ASMFC’s management actions.

Even if they could, such review would, in most cases, prove challenging.  The Atlantic Coastal Fisheries Cooperative Management Act grants the ASMFC the authority to manage coastal fisheries but, unlike the Magnuson-Stevens Fishery Conservation and Management Act, which governs fishing in federal waters, creates no legally enforceable standards for fishery management plans.  Unlike federal agencies, the ASMFC may exercise its unbridled discretion when setting management measures.

In addition, the ASMFC is technically not a rulemaking body.  It is a fishery management organization, which develops fishery management plans and fishery management measures, but the states must then adopt such measures through each state’s rulemaking process.

All of those factors take the ASMFC outside the body of law that addresses public comment and the rulemaking process.

Still, the folks who sit on the management boards are not tone deaf, and they are not unconcerned with the impacts of their actions on the fisheries that they manage, and also on the perceived legitimacy, and possibly the future, of the ASMFC itself.  They understand that outraging the public will not benefit the ASMFC.

Thus, there is a practical balance that, while not legally enforceable, is nearly as binding as the laws that bind federal agencies.  Certainly, the ASMFC has stepped a little too far outside the lines at times, and has taken actions that seemed to defy not only the science but common sense; had it followed its own management plan in 2014, and initiated a 10-year rebuilding plan before the 2015 year class of striped bass began to recruit into the commercial and recreational fisheries, the striped bass stock might well be in a better place than it finds itself in today.

At the same time, there is no doubt that, throughout the development of Amendment 7 to the ASMFC’s striped bass management plan, the majority of the Atlantic Striped Bass Management Board were very aware of, and very responsive to, public comment.  The amendment that finally emerged last May was very different, and far better for the striped bass, than the document that was contemplated when the amendment process began.

If the striped bass stock is, in fact, rebuilt by 2029, the Management Board’s willingness to heed public comment will be much of the reason why.

The plain truth is that nobody wins every fight.  And sometimes, for a season or two, it can feel like you’re not winning anything at all.  But that’s not a reason for anglers to walk away and stop commenting on issues that concern them.

For even if their comments only make a difference once in a while—and they’ve recently been doing far better than that—the wins, however far apart they may be, will still leave our fish stocks in better shape than they had been in before.