IN SEARCH OF A REAL "RIGHT TO FISH"

 

Every April, New York’s Marine Resources Advisory Council holds a special session, when it focuses on pending legislation and provides its views on which bills ought to pass, which ought to be opposed, and which might be of value if amended in the right way.  Each MRAC member is provided with a list of bills that might be discussed at the meeting.

This year, as in the past, one of the bills we could have discussed (but ultimately didn’t) was A3348, which would amend the state’s constitution to create a right to hunt, trap and, most relevant to this discussion, fish.  A3348 is very brief, taking up less than one page; it would add the following language to New York’s constitution:

“Hunting, trapping, and fishing and the taking of wild animals, birds and fish are a valued part of our heritage and will be forever preserved for the people.  Fish and wildlife shall be managed by state laws and regulations that provide persons with the continued opportunity to take, by traditional means and methods, species traditionally pursued by hunters, anglers and trappers.  Fish and wildlife management, including taking, shall be consistent with the state’s duty to protect this heritage and its duty to conserve wild animals, birds, and fish, and shall be subject to reasonable regulation as prescribed by state statute.”

I’m in general agreement with the intent of the bill, which is to maintain people’s ability to hunt, trap, and fish, and the ability of the state to glean the economic benefits that accrue from such activities.  I also agree with the language in the memo accompanying the proposed legislation, which concludes,

“Because of the public dollars and license fees that have supported game reintroductions and habitat improvements, the increasing suburbanization of the state, continued loss of open and wild areas, the distance between the population and our subsistence roots, and their foundation in our culture and history, particularly in our rural areas, the time honored and respected pastimes of hunting, fishing and trapping should be recognized in our constitution as rights of the people.”

The problem with the bill, though, is that it doesn’t go far enough.  It might ensure that people can carry a bow or firearm in the woods, set traps, and ply the state’s waters with various baits and lures, but it doesn’t do anything at all to assure that there will be sufficient fish and wildlife available to make such efforts worthwhile.

A long time ago, when this blog was still young, I noted that if you want a fishing industry, it helps to have fish.  That hasn’t changed.  Yet nothing in the proposed “right to fish (or hunt, or trap)” legislation requires the state to ensure that when fishermen venture out, there will be enough life in the water to make it worth at least trying to catch something.

Fishing in an empty ocean gets old pretty fast.

Here in New York, we are fortunate enough to have a saltwater fishery management policy that has been established by statute.  Section 13-0105(1)(a) of the Environmental Conservation Law begins,

“It is the policy of the state that the primary principle in managing the state’s marine fishery resource is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations…”

As far as I can tell, that policy has never been interpreted by the courts, so we can’t be completely sure what phrases like “sustained in usable abundance” actually mean, but the statute nonetheless seems to make a strong pro-conservation statement.  

Assuming that an appellate court eventually agrees, ECL Section 13-0105 probably creates a much more valuable right to anglers hoping to actually catch fish than does the proposed change to the state’s constitution, which merely ensures that anglers may cast a line into state waters, but leaves open the possibility that such waters could be all but devoid of life.

Section 13-0105 also states that

“The state shall actively manage its marine fisheries and shall endeavor to protect and conserve habitats; restore habitats in areas where they have been degraded; and maintain water quality at a level that will foster occurrence and abundance of marine resources.”

This is where things begin getting complicated.  The law requires “the state” to protect habitat and maintain water quality, but just who in “the state” has the power to do so?  The Department of Environmental Conservation has the authority to regulate many (but not all) marine fisheries, and some pollution sources, but it is very, very far from omnipotent.  

For example, one of the biggest problems we have on Long Island is harmful algae blooms in our coastal bays.  Such blooms are fed by nitrates that run in from the land—from septic tank fields, from fertilizer runoff, from other sources of non-point source pollution.  It is a problem that the DEC has little ability to resolve.

The legislature has not granted the Department the authority to require the replacement of aging and defective septic tanks, or to mandate that homeowners hook up to sewers when such sewers become available (although in other places, such as the town in Connecticut where I grew up, hooking up to available sewer lines is required by law).  It has not given the Department the authority to mandate how much and how often people may fertilize lawns, golf courses, and other private lands.  

Absent specific actions by the legislature, there are very real limits to what “the state” is able to do to protect marine fish habitat and maintain water quality.

In that, New York is not alone.

Recently-published commentary notes that there is a bill pending in the Florida legislature that, like A3348 in New York, would enshrine the right to hunt and fish in the state’s constitution.  But then the piece notes that

“when it comes to clean water—upon which our health, local economies, property values and wildlife (including fish) depend—the Legislature is looking to restrict the rights of citizens, exercised through their local governments, from having any impact upon the quality of Florida waters and aquatic ecosystems.”

That’s because Florida’s legislature is actively considering, and will very probably pass, legislation that would outlaw

“counties and municipalities from adopting laws, regulations, rules, or policies relating to water quality or quantity, pollution control, pollutant discharge prevention or removal, and wetlands.”

Apparently, state legislators are afraid that local governments might take action when the state did not, implement effective regulations to clean up and/or protect local waters, and in doing so upset real estate developers, whose incomes depend, in part, on their ability to lay down more runoff-prone pavement, create untold thousands of acres of new fertilizer and pesticide-laden lawns and, of course, attract thousands of new residents, whose sewage will add to the organic waste that is flowing into local waterways and feeding the harmful algae blooms that now regularly plague both coasts of the state.

Real estate developers, after all, vote and make very large campaign contributions.  Fish do neither.  So the legislators’ proper course of action is clear--at least to them.

While protecting the developers who degrade the state';s waters, they can still throw a bone to anglers, creating a meaningless “right” to fish in waters where the fish themselves are becoming ever harder to find.

The opinion piece quotes Blair Wickstrom, senior editor of Florida Sportsman magazine, who accurately noted that

“without fish there is no [fishing] industry, there is no way of life.  And without clean and healthy water there are no fish.”

But the sponsors of what has been dubbed “The Dirty Water Act” see things differently, with Rep. Randy Maggard (R-Dade City), the bill’s sponsor in Florida’s House of Representatives, complaining that

“Cities and counties are using water as a weapon to slow down their growth,”

as if growth is the only good, and municipalities which would rather maintain the quality of their waters and their quality of life, rather than mindlessly expand, are some inherent evil that must be expunged.

Which, I suppose, is true—if you’re a real estate developer or belong to their army of obedient flunkies.

So instead of legislation protecting the waters where the fish live, we get legislation that guarantees our right to cast lines into waters that, at some times and in some places, are scarcely more appealing than an open sewer.

It’s possible that fish can’t even live there, but then, as they say, it’s called “fishing,” not “catching,” so some will have you believe that as long as your right to fish is protected, bills protecting the fish and their habitat can be put aside.

Of course, we don’t all believe that.

CoastalReview.org, the online news outlet maintained by the North Carolina Coastal Federation, recently published a profile of Capt. Tom Roller, a light tackle guide.  I’ve had the opportunity to meet and speak with Capt. Roller a couple of times, and it isn’t hard to notice that he’s both a passionate fisherman and a passionate advocate for fish and their habitat.

As he observes,

“Healthy fisheries take care of their fishermen.”

And he doesn’t only talk a good game; he goes out and works for good outcomes.

“I love our natural resources, and I love the North Carolina coast—and all outdoor places—so much that I have been hyperfocused on being involved in conservation and management, in an effort to hopefully conserve our fisheries and ecosystems for future generations…

“I’ve served on federal advisory panels for bluefish, Spanish mackerel and king mackerel.  In the state I’ve served on advisory committees for southern flounder and blue crab.  Currently I am appointed to the main fisheries rulemaking body in North Carolina, the North Carolina Marine Fisheries Commission.”

He also holds a seat on the South Atlantic Fishery Management Council.

And you’ll note, fisheries conservation and management takes up his time; it isn't wasted on the fluff of creating a right to fish in what might well be empty waters, for fishermen need healthy fisheries far more than they do some largely meaningless “right.”

So if legislators want to really help fishermen, recreational and commercial alike, they ought to start thinking of the sort of “rights” bill that will really do the job.  A bill that doesn’t merely confer a right to cast a line, but one which creates a public right to clean waters and healthy fisheries.

If legislators want to create fishing-related rights, what about giving the public the right to sue developers, if the government fails to act, allowing them to confront those who destroy coastal or riparian habitat, allow sewage- and fertilizer-related nitrates to flow into the bays, or otherwise degrade coastal waters, and compel such developers to clean up the mess they created at their own expense?

Or how about creating a right to compel a state—or an interstate body—to properly conserve and manage the fisheries under its jurisdiction?  Federal fishery management actions are already subject to some judicial review, and anglers in North Carolina are currently suing that state, trying hard to establish such a right there. 

Maybe, in the end, the whole debate about the “right to fish” comes down to basic grammar, and the defined parts of speech.

Make “fish” a verb, and the right is all about action,

“to try to catch fish, for example using a net or a fishing rod.  [emphasis added]”

Success is not a necessary element of that action, nor is even the possibility of success.  One may fish, in good faith, in lifeless waters, whether sterile or catastrophically polluted, so long as one believes that fish might be there.

And for just that reason, such right is of dubious worth.

But make “fish” a noun, and the right becomes one of substance.

It is no longer merely protects one's ability to cast a line into degraded and largely empty waters; instead, it becomes a right to have healthy and abundant coastal seas, where life thrives and going fishing is truly worthwhile.  

It creates an environment where those who dredge and fill coastal marshes, degrade estuaries, or allow pollutants to flow from their lands and buildings, no matter how far upstream—as well as the government entities which condone such actions--could be held accountable for encroaching on private citizens' right to have and enjoy fish in all of their myriad forms.

Should a legislator with the vision and courage to create that sort of “right to fish” ever step forward, a new era might truly begin.