IS IT TIME TO GIVE THRESHER SHARKS A HAND?

 

Back in 1971, the late, legendary Captain Frank Mundus, who pioneered recreational shark fishing off Long Island, New York, co-wrote Sportfishing for Sharks, a book that was, and though out of print still remains, the definitive book on that activity.  In the chapter dedicated to thresher shark fishing, Capt. Mundus wrote,

“You could go the full route of your shark-hunting career without ever contacting a thresher.  On the other hand, you might find yourself in an area at a time when they’re fairly numerous.  Their distribution is rather erratic and changeable.  It has been our experience threshers are seldom what could be called abundant.

“Even in one region their distribution can be a study in contrasts.  Off Montauk, New York, for example, we’ve seen threshers breach several times as the pursued small menhaden, and we know of five or six taken in these waters by trollers using wire lines for striped bass.  Yet during the course of a decade we’ve seen no more than a dozen or so hung on the docks at Montauk.”

When I moved out to Long Island a dozen years later, little had changed.

Shark fishermen usually said that they were “going out for makos,” which were abundant back then.  They landed a lot of makos between 200 and 400 pounds, with a lot more under 200 and a very, very few that went close to 1,000.  The fishing held up pretty well throughout the summer.  

Another, far smaller group of anglers specialized in the big tiger sharks—fish of 500 pounds or more—that were surprisingly common around deep structure once the water temperature rose into the 70s.

It was a completely unregulated fishery.  There were no minimum sizes, no bag limits, and no permits needed.  The concept of “prohibited species” had not yet been born, and there were a plethora of shark species available to fishermen.  While anglers said that they were “going out for makos” or targeting tigers, they had a good chance of catching a bunch of blue sharks, large numbers of sandbars, dusky sharks that might weigh anywhere between 20 and 500-plus pounds, the occasional hammerhead, the even more occasional white shark and, every now and again, a thresher.

Offshore fishing tournaments, which either targeted sharks exclusively or included a shark category among others for tuna and billfish, were ubiqutous.  From my dock in Babylon, New York, which lies just inside Fire Island Inlet, I could have fished a tournament every weekend from mid-June through the beginning of August, had I chosen to do so, without having to go very far from home.

While multiple shark species might be brought to the scales, when a tournament boat weighed a thresher, it always drew the biggest crowd, for it was often the first time that most of the folks on the dock had ever seen one.

Fifty years later, things are very different.

The shortfin mako population has crashed, due primarily to too many being caught and killed by the pelagic swordfish longline fleet.  In 2022, the United States, along with all of the other signatories to the International Convention for the Conservation of Atlantic Tunas (which applies not only to tuna, but to “tuna-like species,” which in the inscrutable language of diplomats includes things like swordfish, marlin and, of course, sharks) imposed a complete landings ban on shortfin makos In 2022, theUnited States, along with all of the other signatories to the InternationalConvention for the Conservation of Atlantic Tunas (which applies not only totuna, but to “tuna-like species,” which in the inscrutable language ofdiplomats includes things like swordfish, marlin and, of course, sharks)imposed a complete landings ban on shortfin makos which, because they were valued both for their fight and as food, were the most popular shark caught by recreational fishermen.  With the closure in place, scientists believe that the mako population has a better than even chance to rebuild in about 45 years.

Longliners also crashed the dusky shark population, which is in even worse shape than the makos, and probably won’t reach sustainable levels for at least another century.  They, too, may not be legally landed.  The same is true of sandbar and white sharks which, although showing strong signs of recovery, are still in the rebuilding stage.

Because of the prohibition on mako landings, many shark tournaments, as well as the fishing clubs that depended on them for much of their annual revenue, have shut down, while tackle shop owners and folks manning local gas docks tell me that, for the same reason, far fewer fishermen have been targeting sharks over the past few seasons.

Yet some tournaments, and some recreational shark fishermen, remain.

And their new favorite target, which is both legal to harvest and good to eat, is the common thresher.

That might not have been an issue if local ports still saw very few threshers each year.  But at the same time that other sharks were no longer available to anglers, catches of threshers began to spike.  Where, in the past, I might go a decade or more without having a thresher swim into my chum slick, in recent years, I’ve hooked as many as three in a single day.

That might sound like a good thing, and a sign of increasing abundance, but that’s not necessarily so.  The increase in encounters could be a sign of a growing population, but it could just as easily mean that the fish haven’t grown more abundant, but are merely more catchable, and there’s reason to believe that the latter is true.

With their small mouth and a whiplike tail that can be nearly as long as their body, thresher sharks have evolved to feed on densely schooling fish.  And in the past half-decade or so, the inshore waters off southern New England and the upper mid-Atlantic have seen a sharp increase in both menhaden and chub mackerel, exactly the sort of fish that threshers evolved to feed on. 

As a result, anglers have found thresher sharks right on their doorsteps.  Plenty of fishermen livelining menhaden just outside Long Island inlets, trying to tempt a striped bass, have gotten the shock of their lives after a 200 pound thresher, rather than a 20 pound striper, made off with their bait.  

Savvy shark fishermen have taken advantage of the situation, drifting along in the same menhaden schools as the anglers seeking striped bass, but with tackle designed to battle a big thresher.  I know of such anglers catching threshers weighing more than 400 pounds, while fishing in less than 40 feet of water.

And most of the thresher sharks caught by recreational fishermen are killed.  The Final Atlantic Stark Fishery Reveiw, released last year, notes that

“Common thresher sharks are unique among sharks in the recreational fishery in that they may be the only commonly caught species that is more likely to be harvested than released, with harvested thresher sharks accounting for 60 percent of the total catch.  Harvest estimates from 2014 to 2016 were approximately double or more relative to estimated releases.  The number of thresher sharks released increased significantly between 2017 and 2019 while the number harvested increased slightly after 2016…The bulk of the length distribution ranges from 55-96 inches [fork length] with a median size of 74 inches [fork length]”

The Final Review also notes that

“Prior to the implementation of new management measures in 2018 [that initially substantially restricted, and in 2022 completely prohibited, landing shortfin makos], shortfin mako sharks made up the majority of harvested pelagic sharks.  After that, there was a distinct shift to the common thresher shark, however annual harvest of common thresher shark increased only slightly…The pelagic shark fishery is largely driven by tournament fishing during the early summer months.”

If the thresher stock remains healthy, such catches pose no threat, but they could clearly be a big problem if the stock is in decline.  And the biggest problem of all is that no one knows whether the stock is healthy, because it has never been assessed.

I was recently appointed to the National Marine Fisheries Service’s Highly Migratory Species Advisory Panel, and attended my first meeting a few weeks ago.  Highly Migratory Species, unlike most other United States fisheries are not managed by regional fishery management councils, but instead are managed directly by the Secretary of Commerce, which effectively means that they are managed by HMS specialists at NMFS.  The Advisory Panel, as its name suggests, provides input intended to influence management actions.

So at the May Advisory Panel meeting, I brought up the issue of thresher sharks, suggesting the need for both a stock assessment and, very probably, more restrictive regulations in the face of their growing importance in the recreational fishery.  In particular, I noted that the current 54-inch (fork length) minimum size probably isn’t appropriate for a species that doesn't see 50% of females mature until they are at least  216 centimeters—about 85 inches, or a little over 7 feet—in length.

That’s nearly a foot larger than the average thresher landed by recreational fishermen today.

My suggestion that NMFS consider additional restrictions on thresher harvest, including a substantial increase in the size limit, received favorable comments from others in the room, and no one seemed to oppose it.

After all, in the end it makes sense.

I love shortfin makos for their beauty, their speed, and their magnificent jumps.  But I have always been a big thresher shark fan, admiring both their strength and their refusal to quit.  I’ve had threshers that died on the line rather than give up the fight.

Such fish deserve our respect.

We have already lost much of the mako fishery, although catch-and-release angling is still going on.  Right now, the thresher fishery still seems to be doing OK.  Which makes now the right time to lend it a hand, before it goes the same way as the mako. 

ALASKA BYCATCH, HABITAT DEBATES ON THE FRONT BURNER

 

A little less than two years ago, I wrote something called “Marine Fisheries Management:  You’re Defined by What You Oppose,” which focused on widespread commercial opposition to federal legislation intended to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, which would have afforded forage fish greater protection, done more to preserve essential fish habitat, and required commercial fishermen to make a greater effort to avoid bycatch of non-targeted species, and the resultant discard mortality.

As I noted at the time,

“The fishing industry opposes [the legislation] because it 1) extends more comprehensive protection to the small forage fish that all of the larger fish, along with birds and marine mammals, feed on, 2) would better conserve essential fish habitat, and 3) seeks to minimize the incidental catch, and associated dead discards, of non-target, non-salable fish and other components of the target species’ ecosystem.

“And then they justify such opposition by arguing that such measures are unrelated to ecosystem health.

“It’s hardly a pursuasive argument.  Even more telling are the [industry’s] comments about ‘balance[ing] complex competing interests’ and ‘severely restrict[ing] some of our nation’s largest commercial fisheries’ for, although it remained unsaid, some of ‘our nation’s largest commercial fisheries’ are also the fisheries that place the greatest pressure on forage fish stocks, do the most damage to essential fish habitat, and cause some of the most serious bycatch issues.”

To illustrate my point, I turned to the (supposedly) mid-water trawl fishery for walleye pollock, which takes place off Alaska.  It is the largest commercial fishery in the United States, which in the course of harvesting about 3.3 billion pounds of pollock per year ( also generates something in the vicinity of 50 million pounds of bycatch of various species (this is according to the pollock industry itself, which claims that

“more than 98 percent of the catch in the [Bering Sea Aleutian Islands] Alaska pollock fishery has been pollock,”

but, with 3.3 million pounds of pollock being landed, well, you can do the math.)

That bycatch leads to some interesting situations, including regulations that allow the pollock trawlers to kill thousands of Pacific salmon at a time when Native Alaskans, who have historically depended on such fish for a substantial portion of their diet, are allowed to harvest few or none.

It wasn’t a complimentary piece, and drew one unhappy comment from a spokesman for the pollock fleet, but the issue did not fade away.  In fact, it is now more in the forefront than ever.

To oversimplify, the dispute puts the big pollock factory trawlers, which are generally owned by corporations headquartered  in the states of Washington and Oregon, but head up to Alaska to catch plentiful but low-value pollock (the approximately 2.7 billion pounds of walleye pollock landed in 2022 sold for just under 19 cents per pound), against Alaska’s small-boat commercial fishermen, recreational fishermen, and subsistence fishermen, many of whom belong to Native Tribes, who believe that their opportunities to catch chum and chinook salmon, tanner crab, and other high-value or culturally significant species have been negatively impacted by the big trawlers’ bycatch and the damage that the trawlers’ nets, which are meant to fish in the middle of the water column, allegedly cause when they come in contact with the ocean floor.

A similar dispute is underway between large trawlers which fish for other species of groundfish (which are just what the term suggests, fish typically found near the ocean floor) and commercial and recreational halibut fishermen, who believe that trawler bycatch is causing real harm to both the halibut and to the halibut fishery.

The situation has been exacerbated by the fact that, while the directed harvest of some species, at least in some waters, is now prohibited by law—for example, United States and Canadian fisheries managers recently agreed to shut down the fishery for Canadian-origin chinook salmon in the Yukon River for the next seven years, while a similar closure was put in place in the Alaskan portion of the river a few years ago—the trawler  fleet may legally catch and kill the same species as bycatch.

The Anchorage Daily News quotes Maurice McGinty, an 80-year-old Native American who had just dipped into his last jar of smoked chinook salmon, and noted,

“We have no more now.  They are pushing us, and our traditional way of life, into a hole.”

Despite such outcomes, the big trawlers oppose any new restrictions on bycatch, worried that it will harm a fishery that grossed over a half-billion dollars in ex vessel landings in 2022. 

That doesn’t mean that the trawlers aren’t doing anything to reduce salmon bycatch.  In recent years, they have made a conscious effort to avoid “hot spots” in the ocean that host large numbers of salmon.  

Still, small-scale fishermen note that, while there is a hard cap on chinook salmon bycatch in the trawl fisheries for both pollock (25,000 fish) and for other groundfish (32,500 fish), which can lead to a fishery being shut down if the cap is exceeded, there is no cap on the culturally important chum salmon fishery.  Over the past decade, the pollock trawlers have unintentionally killed about 315,000 chum salmon each year but, perhaps because of the greater attention being paid to bycatch in recent years, managed to cut that number to just 112,000 chum salmon in 2023.

Nevertheless, Tribal leaders are asking the North Pacific Fishery Management Council to impose a hard bycatch cap of no more than 200,000 chum salmon, and preferably fewer, on the pollock fishery.  The pollock fishery is pushing back, arguing, according to the Anchorage Daily News, that

“hard caps are blunt tools that are unlikely to achieve what the tribes are pushing for: more salmon returning to Western Alaska rivers.

“That’s because genetic analysis shows that a little more than half the chums swallowed by trawl nets aren’t actually Western Alaska salmon—they’re salmon that came from Russian and Asian hatcheries, which have sharply increased their releases in recent years.

“Western Alaska fish, on average, make up just 19% of trawlers’ chum bycatch.  And industry officials say that a cap that doesn’t distinguish between those areas of origin could actually push their boats into areas where they’re catching Yukon and Kuskokwim fish at higher rates, even if the total number of chum is lower.”

Whether that’s a legitimate argument, or merely something the trawl industry offered up to avoid unwanted regulation, isn’t entirely clear.  But then, that sort of uncertainty is typical of any allocation argument—and let’s be perfectly clear that this is an argument about allocation, even if the central debate is between what the directed salmon fisheries are able to harvest versus what the pollock trawlers are able to incidentally kill, rather than what different sectors are each able to harvest and use—when those on the fat side of the allocation are trying to hang on to what they have, while those on the other side are reaching out for more.

But the debate over the pollock fleet isn’t limited to bycatch issues.  Alaskan crabbers are calling for more restrictions on the nets used by the pollock trawlers, alleging that such supposed “mid-water” or “pelagic” trawls, which are intended to fish relatively high in the water column, are actually scraping the bottom for much of the time when they’re deployed, and damaging habitat important to many species, including red king crab, along the way.

While bottom trawls may not be used in about half of the waters under the jurisdiction of the North Pacific Fishery Management Council, due to the damage that they cause to bottom habitat, similar restriction do not apply to mid-water trawls, even those which remain in contact with the bottom for extended periods.

Although the Council has been reluctant to impose further restriction on the mid-water trawlers, the issue has caught the attention of Rep. Mary Peltola (D-AK).  Last week, Rep. Peltola introduced two bills that are intended to address the bycatch and habitat destruction issues.

The more restrictive of the two bills is the so-called “Bottom Trawl Clarity Act,” which would require regional fishery management councils to create

“a definition of the term ‘substantial bottom contact’ as compared to the term ‘limited bottom contact’ when used to describe how often fishing gear interacts with the seafloor; a monitoring and enforcement plan to ensure that any pelagic trawl fishing activity that is carried out by a fisher managed by [a] Council has limited bottom contact; and a list of each gear type that has substantial bottom contact based on the definition [described above]. [formatting and internal numbering omitted]”

The legislation would also, among other things, require that each regional fishery management council designate Bottom Trawl Zones where trawls that make substantial bottom contact may be used, with such trawls outlawed in the remainder of the area under the jurisdiction of the council.  In explaining why such legislation is needed, Rep. Peltola’s office issued a statement which read, in part,

“Bottom trawling…is…the cause of one of the most widespread human impacts on the seabed and is relevant globally.  The net rolls over the ocean floor as it is pulled, destroying complex habitats, kicking up sediment, and wounding or killing any other animals in the way.

“Midwater—or pelagic—trawl is designed for fishing in the middle of the water column with minimal or no interaction with the seafloor habitat.  However, when considering the seafloor impacts of pelagic trawl, the North Pacific Fishery Management Council assumed bottom contact of up to 60% seafloor contact for small pelagic trawl vessels and up to 100% for factory catcher/processors.

“The consequences of intensive bottom trawling are severe, leading to the harm and death of non-target species.  The Red King Crab Savings Area, established in 1996 to protect the Red King Crab seafloor habitat, is permanently closed to bottom trawling but remains open to midwater.  However, if midwater nets are assumed to make bottom contact up to 100% of the time, it begs the question: what truly distinguishes midwater from bottom trawling?”

That’s a question that the pollock fleet has yet to answer.

Instead, it has made vague statements in opposition to the bill, claiming that it would impose

“unworkable and burdensome new federal mandates on regional decision-makers,”

and has noted that

“The [North Pacific Fishery Management C]ouncil has been looking at pelagic gear definitions, the enforceability, and they continue to look at that.  And that’s where we feel the work needs to be done.”

However, the pollock industry has never made a clear statement as to just why the requirements of Rep. Peltola’s legislation would prove “unworkable.”  Nor has it explained why, if the North Pacific Council is already looking at definitions for “pelagic” net gear, the bill would significantly upend the council process, as it merely requires them to stop “looking at” a definition for midwater trawls and actually put such definition in place within a year of the bill’s passage.

That hardly seems unreasonable, unless you’re one of those folks that wants to see talking go on forever, forestalling action so long as it does.su

And it seems that there is one constant in legislative politics:  Whenever someone pulls out the “burdensome new federal mandates” line when they’re opposing a bill, it’s almost always because they have nothing more substantive to say.

Rep Peltola’s second bill, the “Bycatch Reduction and Mitigation Act” would impose no new mandates on any existing fishery.  Instead, it would reauthorize the Bycatch Reduction Engineering Program, and increase the annual funding for such program from $3 million to $10 million, and also make other funds available through the Bycatch Mitigation Assistance Fund, which is administered by the National Fish and Wildlife Foundation.

The latter bill has been cosponsored by Rep. Garret Graves (R-LA) and Rep. Jared Huffman (D-CA).

While Rep. Peltola recognizes that she introduced both bills late in the congressional term, and that neither one is likely to be passed this year, she does think that they will elevate the conversation on bycatch and pelagic trawl issues.

In the end, much of the debate will come down to the question of whether, as a matter of policy, it is acceptable for a large, well-capitalized and very profitable industry, largely based in one state, to fish off another state’s shores and, in doing so, destroy a significant quantity of the marine resources that smaller-scale local fishermen need to survive.

It will come down to a simple question of whether it is acceptable to sacrifice subsistence fisheries and smaller-scale commercial fisheries in order to maintain, and perhaps provide the opportunity to increase, the profits of a large-scale commercial fleet.

It is still too soon to determine how those questions will be answered.

But the answer, when it comes, will tell us much about the values of the nation’s fishery management system, and of the people who make the eventual call.

 

 

 

 

 

 

LITIGATION CHALLENGES MENHADEN REDUCTION INDUSTRY

 

For many years, activists of various stripes have tried to shut down the menhaden reduction fishery in the waters of the Atlantic and Gulf of Mexico. 

While there is no question that the reduction fishery has a public relations problem—it is a highly visible fishery, which generally fishes fairly close to shore, removes large quantities of menhaden, an important forage species, from the ocean (in 2022, Virginia menhaden landings were very slightly under 300,000,000 pounds, about 90% of which are attributable to the reduction fleet), and is occasionally responsible for massive net spills that see thousands of dead and decaying menhaden wash ashore on public beaches and in people’s back yards—the most recent stock assessment update for Atlantic menhaden found that fecundity, which is used as a proxy for biomass, is well above the target level, while fishing mortality remains well below target.

In the Gulf of Mexico, a stock assessment update released in 2021 shows that Gulf menhaden are neither overfished nor subject to overfishing, that the fishing mortality rate in the terminal year is near the lowest values recorded in the entire 40-year time series, and that the biomass of age 1+ fish is not far from the high for such time series.

The fact that the stocks remain healthy despite the reduction fleet’s substantial removals cuts the legs out from under the fishery’s foes, who can find no scientific support for claims that the reduction industry is doing coastwide harm, although there remains the yet-unconfirmed possibility that it may be causing localized depletion in the Chesapeake Bay, and perhaps elsewhere.

Thus, deprived of any scientific arguments to support their efforts to reduce reduction landings, some anti-redution fleet activists have now opened a new front in the fight—litigation aimed at Alpha VesselCo, LLC, the only United States company still engaged in harvesting menhaden for the reduction fishery, as well as its owners, some employees, and its supposed foreign and domestic affiliates.  In particular, the lawsuit targets Cooke, Inc., the Canadian holding company that owns or controls all of the others, allegedly including Alpha VesselCo,

The lawsuit takes a unique approach.  The plaintiffs claim to act on behalf of the United States, pursuant to the provisions of the federal False Claims Act, arguing that the defendants knowingly and fraudulently failed to comply with federal laws that require fishing vessels operating in U.S. waters to be at least 75 percent owned by citizens of the United States.  

The first paragraph of the 57-page complaint alleges that

“This is a False Claims Act suit regarding ‘figurehead fraud.’  This case concerns the control of a large fleet of fishing vessels by a foreign seafood conglomerate called Cooke Inc. and its subsidiaries, affiliates, officers, and employees (‘Cooke’).  Under the American Fisheries Act of 1998 (the ‘AFA’ or the ‘Act’) foreign citizens like Cooke may not have de facto ‘control’ over any vessel that engages in commercial fishing in United States waters (the ‘AFA Citizenship Requirement’).  Defendants have been violating that ‘control’ prohibition since 2017.  Defendants created a supposedly independent domestic shell company to nominally own the vessels, but they installed a long-time Cooke employee—who also happens to be the nephew of the Cooke CEO—as a figurehead to ‘own’ that entity on the understanding that actual control would be exercised by Cooke.  Then, to fish in United States waters, Defendants falsely certified to the Maritime Administration (‘MARAD’)—an agency of the United States Department of Transportation (‘DOT’)—and the United States Coast Guard (‘Coast Guard’) that the vessels’ owner complied with the AFA Citizenship Requirement.  Defendants also concealed from MARAD multiple close connections between Cooke and the vessels’ nominal owner, including that he is a long-time Cooke employee and the Cooke CEO’s nephew.  As a result of their fraudulent scheme, Defendants have illegally harvested from United States waters many millions of dollars’ worth of fish to which they are not entitled.”

The plaintiffs are asking that the court award the United States damages that might, according to the plaintiffs, range somewhere between a few hundred million and two billion dollars.  

When a private citizen brings a claim on behalf of the government pursuant to the False Claims Act, the complaint is not immediately served on the defendants.  Instead, the law requires that

“A copy of the complaint and written disclosure of substantially all material evidence and information the [plaintiff] possesses shall be served on the Government…  The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.  The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information,”

although the law also gives the government the right to petition the court for additional time to evaluate the claim and respond.

If the government chooses to intervene and proceed with the action, it has the primary responsibility for prosecuting the matter, although the original claimant may remain a party.  In such case,  the original claimant is entitled to receive between 15 and 25 percent of any damages paid by the defendant,

“depending upon the extent to which the person substantially contributed to the prosecution of the action.”

In this case, the court granted the United States a substantial extension of time to evaluate the evidence and other information provided by the plaintiffs.  The complaint was originally filed with the federal District Court for the Southern District of New York in 2021, but it was not unsealed, and service on the defendants was not permitted, until April 2024, by which time the government, having reviewed the relevant evidence, decided that it would not intervene and would take no active role in the matter.

While that means that the plaintiffs will have to prosecute the case on their own, it also means that they would receive a larger award—between 25 and 30 percent of any judgment—should they ultimately prevail in the action.

So what are the chances that the plaintiffs will, in the end, prevail?

That’s impossible for a bystander to say.

On one hand, the fact that the government opted against intervening might suggest that a win was far from assured.  

To prevail, the plaintiffs must demonstrate that the Cooke violated the False Claims Act because it

“knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; conspires to commit a violation of [any provision of the False Claims Act]; has possession, custody, or control of money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property; is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true; knowingly buys, or receives as a pledge of an obligation or debt, public property from an official or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge property; or knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.  [formatting and internal numbering omitted]”

If the complaint is taken at face value, and the plaintiffs really did omit critical information from the documents submitted to MARAD and the Coast Guard when they claimed that their menhaden fishing vessels were at least 75% owned and controlled by United States citizens, did such omissions constitute a violation of the False Claims Act?

Ultimately, that’s what the court will have to decide, and it may well decide in the plaintiffs’ favor, but to do that, the plaintiffs will need to convince the jury—for they did request a jury trial—that such omissions were done “knowingly” and were “fraudulent.”  

That might not be too easy to do.

The complaint makes it clear that the documents filed with MARAD and the Coast Guard were not prepared and filed by the defendants themselves, but by a well-established law firm.  So long as defendants fully disclosed all relevant facts to their attorneys, made inquiry as to the legality of their actions, was advised that their conduct was legal, and relied in good faith on counsel’s advice, they could avail themselves of an “advice of counsel” defense.  Such defense, while only one consideration among others, would make allegations of knowingly and fraudulently omitting or misstating critical information significantly harder to prove.

Yet, while that may be true, it’s also important to note that plaintiff’s counsel, the New York City firm of Holwell Shuster & Goldberg LLP, seems to be a very capable firm, which specializes in complex commercial litigation, financial litigation, and similar matters.  While no one knows just how it is being compensated for its work in the menhaden case—which it may even have taken on as a “pro bono” matter, for little or no fee—its website notes that

“In order to manage client expenses, maximize efficiencies, and insure that HSG’s efficiencies interests are fully aligned with our clients’, HSG seeks whenever possible to implement fee arrangements based on agreed measures of value rather than on the billable hour.”

Such language strongly suggests that the firm prefers to take cases on a contingency basis—that is, by agreeing that the client only pays legal fees if they win the case, at which point the firm would receive a set percentage of the award—or, perhaps, by meeting a particular milestone (e.g., a settlement in which Cooke agrees to sell the vessels currently used to catch menhaden).

Under such circumstances, law firms rarely agree to take cases that they think they are likely to lose.

So, once again, without knowing what evidence the plaintiffs will reveal, and how the defendants’ counsel will argue their case, any predictions on which side might prevail are very premature.

Still, we can speculate about other matters, including just why the action was brought.

The plaintiffs, W. Benson Chiles, a consultant on fisheries issues, and Chris Manthey, a professional investigator who has worked with various conservation groups, have been down this road before, suing Omega Protein in 2010, about a decade before it was aquired by Cooke, but was already the largest company participating in the menhaden reduction fishery.  At that time, they alleged that some of the fish oil supplements marketed by Omega for human consumption contained unacceptable levels of PCBs.  That matter was ultimately settled before trial.

Based on that history, a general desire to undermine the menhaden reduction fishery can probably be assumed.

Beyond that, outside of possibly getting a piece of any jury award, it’s not particularly clear what the lawsuit will accomplish.

It will have no impact on the permissible size of the menhaden harvest; the fecundity/biomass and fishing mortality reference points will remain unchanged.

Anyone who believes that the suit would end the reduction fishery is almost certainly kidding themselves; somewhere between 250 million and 300 million pounds of potential product, swimming just off Virginia alone (Gulf landings are even higher) is going to draw interest and investors.  At best, plaintiffs winning the suit might force a change in the ownership of what was once Omega’s menhaden fleet.  The new owners would probably charge Cooke more for menhaden products than its allegedly captive fleet did, but that would only take things back to the status quo before Cooke acquired Omega; it would hardly be enough to kill the fishery.

And, while a big cash judgment might slow Cooke down for a while, it probably wouldn't be fatal.  With annual revenues of more than $4 billion, the company probably generates enough cash flow to absorb the hit, although it might need some financial help to ride out the storm.  It’s even possible that the judgment would be entered against a subsidiary, perhaps Omega, but not against the holding company itself, and so result in a less damage.

Given that Cooke is one of the largest seafood companies in the world, with operations that stretch from Japan and Australia east to central Europe, and from Alaska south to Chile, even if it was forced into insolvency, it would not just disappear.

It might be able to restructure its obligations, and remain an independent business.

It might be acquired for pennies on the dollar by another conglomerate that pays off any remaining debt, so that instead of dealing with a Canadian company and Canadian ownership, regulators and others would then have to deal with a company based somewhere else in the world, perhaps Norway, Japan, or China.  

Or maybe it would be sold off in parts, but even if that happened, each aquaculture facility would likely still need the same amount of fish meal that it needs today, so the market for menhaden products, at least for that use, probably will not change.

Yet whatever the possible outcome, it will take a while for the parties to get there.  The complaint was filed in 2021, and was just served this year.  Before the case can be tried, the litigants will have to go through the discovery process, taking depositions, serving interrogatories, and demanding the production of various documents, emails, etc., all of which will have to be analyzed and placed in proper context before they are used, or not used, at the trial.  Motions to dismiss and motions for summary judgement will almost certainly be filed, and each will take time to resolve.

When all is said and done, and the court’s backlog of cases is taken into account, the plaintiffs will be lucky to have the case heard in 2026—if it can begin that soon.  Should Cooke come out on the losing side, it will undoubtedly take an appeal to the U.S. Court of Appeals for the 2^nd Circuit, and if Cooke loses there, it might well take the final step of appealing the issue to the Supreme Court, although with that court able to hear only 100 or, at best, 150 cases each year, while receiving about 7,000 potential appeals, the odds don’t favor the high court ever agreeing to hear the case.

It's not inconceivable that the matter won't be resolved until 2028, or some later year.

Whenever the final judgment is rendered, the conservation benefits of the lawsuit are hard to discern.

While the litigation might well vex Cooke and ultimately cost it a lot of money, might clarify what a foreign entity must do (and not do) to access fish from United States waters, and might possibly put a big wad of cash in the plaintiffs’ pockets, it will do nothing to change the way Atlantic menhaden are managed, will do nothing to improve menhaden habitat, and will do nothing to increase the fecundity of the menhaden stock—although that’s already higher than it needs to be to maintain a healthy fishery at current harvest levels.

But it will still be an interesting thing to watch.

THE FLY FISHING INDUSTRY LEADS THE WAY--AGAIN

People who know me know that I’m often critical of the recreational fishing industry, largely because of its focus on short-term returns and its failure to support the conservation measures needed to better assure the long-term health and sustainability of fish stocks.

To be fair, industry CEOs aren’t paid to promote conservation.  They’re paid to maximize the return on investments made by the shareholders and owners of the companies that they manage.  If they can, for example, boost company earnings by developing a forward-looking sonarunit that lets anglers find what few fish remain in a depleted population, andkeep anglers’ landings high by turning fishing into what is effectively a videogame that lets fishermen place their baits and lures right in front of a fish’smouth, they may be doing more to boost profits than they would if they supported efforts to rebuild overexploited stocks, which might depress landings—and sales—for the next five or ten years.

And the CEOs aren’t blind to the fact that their salaries and bonuses—and maybe their future employment—aren’t contingent on what the company might make in the future, but on what it will make this year.

At the local level, tackle shop owners and for-hire captains have more than enough current bills to keep them focused on cash flow, rather than on ten-year plans to rebuild fish stocks.

All that makes the actions of the American Fly Fishing Trade Association that much more remarkable. 

For many years, the fly fishing industry—as well as the guides and charter boat captains who cater to fly and light-tackle anglers—have stood virtually alone in the recreational fishing industry, recognizing that maintaining healthy and sustainable fish stocks, rather than short-term income flows, holds the key to the industry’s future.

A little over three years ago, I praised AFFTA for publishing a report, “Recommendations to Improve the Health and Sustainability of America’s Marine Resources,” which called for management measures which prioritized long-term sustainability of fish stocks over maximizing the short-term profits that accrue from increased landings that could easily threaten such stocks’ health.

At that time, I noted that contrasting the industry’s chronic demands for more dead fish and fewer recreational regulations to AFFTA’s calls for conservative, resource-oriented management was

“something like being in a roomful of kindergarten kids all day, and then finally escaping into the company of rational adults.”

But if the recreational fishing industry as a whole is acting more and more like spoiled children every day, calling for the abolition of the federal program that monitors recreational landings, seeking to undercut annual recreational catch limits in the Mid-Atlantic region, and trying to convince managers to increase landings of certain coastal shark populations merely because such marine predators are eating some fish that anglers want to keep for themselves, the fly fishing industry, in the form of AFFTA, is continuing to call for responsible fisheries management.

The newest example of AFFTA’s leadership emerged last week, when it announced the release of its latest report, “Anglers Are The Key to Climate-Resiliant Fisheries.”

The announcement noted that the report

“serves as a call to arms to galvanize the angling community to demand action as climate change disrupts fishing experiences coast-to-coast.”

Anyone spending time on the water can see the effects of such climate change.  Sometimes, that change has brought good things, such as the notable increase in the number of black sea bass and dolphin found in northeastern waters, and the northward movement of species such as cobia and blacktip and spinner sharks.  But the change has also had negative impacts.  Warmer waters in the northeast have been implicated in the decline of winter flounder and Atlantic cod, while warm, snowless winters may have contributed to the recent string of poor striped bass spawns.

Of course, you won’t hear the folks who build boats designed to be powered by three or four 350 horsepower outboards, or those who build the big engines themselves, complain about climate change or the impacts of burning too much fossil fuel, so marine fishing industry has pretty well ignored that topic.  Thus, once again, AFFTA finds itself pretty much alone.  Lucas Bissett, AFFTA’s Executive Director, avers that

“From changing habitats to shifting fish populations and behavior, we can’t ignore the realities that we’re seeing out on the water.  As long-term stewards of our country’s waterways who are seeing these impacts firsthand, anglers have the power to make a real difference in the fight for climate-resilient fisheries—for our sport, way of life, and industry.”

While the report marks AFFTA’s first substantial entrance into the climate change arena, it also connects with the organization’s traditional concerns; its stated purpose is to spur

“an angler-led revolution where conservation-minded anglers are educated, motivated, and activated to demand progress toward healthy and abundant marine fisheries in the face of the impacts of our changing climate…[The report] calls for a science-based, precautionary fishery management approach that accounts for ecosystem structure and function while maintaining catch at sustainable levels.”

Sadly, there will be members of the recreational fishing community who will reject AFFTA’s efforts simply because their chosen political philosophy will not let them admit that climate change is real.  Yet anyone who has spent part of the last two or three decades on the water knows how much things have changed.  As the report notes,

“Fisheries in Florida and elsewhere in the southern U.S. continue to see catastrophic declines in fish abundance and vital habitat loss due to rising water temperatures and sea level rise.  Beloved species along the Atlantic coastline are now either out of range or below sustainable abundance for anglers who have historically depended on their presence for recreational, commercial and cultural values.  In the Pacific, extreme weather-related events like marine heat waves serve as straws that could break the proverbial camel’s back of populations already pushed to the brink…

”In just the last few decades, U.S. anglers have witnessed challenging stock shifts as rising ocean temperatures push fish populations and bait further offshore and northward.  In Florida, fish kills due to algal blooms and red tide events are amplified by warming ocean temperatures and sea level rise.  In the Gulf of Mexico, warming ocean temperatures, more freshwater runoff, and other climate-driven changes continue to decrease dissolved oxygen content, further decreasing suitable habitat in an area already losing important fish habitat at an unparalleled rate.  Along the Pacific coast, the crippling multiyear marine heatwaves have forced closures in historically large and productive fisheries, decimating anadromous species returns from the Sacramento River to the Yukon River, the effects of which we are still feeling to this day.”

Denying that reality merely to maintain some sort of ideological purity will not alter what’s yet to come; only concerted effort by all concerned has a chance of creating a different, and better, future.

The report sets out the challenges that the oceans, fisheries managers, and anglers are facing, which may only get worse in the future, including increasing ocean temperatures, rising sea levels, and more extreme weather events.

While anglers can certainly encourage legislators to craft policies that will address such issues, they may not be able to get the job done on their own.  But what anglers can hopefully accomplish is to help create “climate-resilient fisheries;” that is, fisheries that are in the best position to survive the changes that will inevitably come.  Anglers are well-positioned to act as both advocates and partners, who work with legislators and regulators to make needed changes in the fishery management system.  

However, as the report notes, accomplishing the needed change will be neither glamorous nor fun.

“[I]t is assuredly going to be a grind.  It will take a wave of advocacy to install new policy standards; make massive increases of local, state and federal funding; and transition fisheries management to a holistic approach that is science-based, precautionary and adaptive.”

Yet if such change is not made, both fish and fishermen are likely to suffer.

AFFTA goes on to tell us that

“Climate-resilient fisheries depend on science-based, precautionary management that accounts for ecosystem structure and function and maintains catch at sustainable levels.  In plain terms, climate-resilient fisheries are the result of well-funded management agencies using the latest science, technology and strategies to help protect fish and their habitat.

“Maintaining a strong science-based management system will help keep fish stocks at abundant levels that will serve to make them more resilient in the face of change…

“Managing fisheries in the face of climate change will require new tools and approaches to ensure healthy and abundant fisheries.  We will be challenged to continually adapt our management systems to new problems, such as shifting fish stocks and emerging fisheries.”

In the end, the key to creating climate-resilient fisheries is managing for abundance; that is, worrying more about the number of fish left on the water than about the number removed.  Abundant fish stocks are inherently more resilient, and will typically provide a larger and more diverse gene pool that is more likely to include individuals capable of adapting to the impending change.  Managing for maximum sustainable yield, a tactic that always leaves a stock teetering on the brink of depletion should conditions change, is no longer a viable option for, as the report notes,

“In the face of uncertainty a precautionary approach is needed, requiring us as anglers to make tough decisions to preserve long-term sustainability.  This near-term sacrifice is not solely for the benefit of future generations; it may be required to salvage our current ability to engage with our species of choice.”

Of course, “near-term sacrifice” is not a phrase that people like to hear, and it will probably be particularly unpopular with much of the traditional recreational fishing industry who, like children, tend to seek immediate gratification, in the form of higher profits and bigger fish kills, rather than engaging in long-term planning and holding some resources aside for the future.

But as I noticed before, AFFTA and the fly/light tackle community has always seemed to represent some of the only the adults in the room.  Thus, it is not surprising that they advise

“If we care about fish, if we care about fishing, if we care about coastal cultures and traditions and angling communities, we as anglers must wear our passion as a badge of honor and scream it from the rooftops for all to hear.”

No, even that that won’t guarantee a win.  After all, the folks who are making their money by causing the problems will be screaming, too.  But anglers aren’t the only ones who care about a healthy ocean, and so long as we pick the right allies, and don’t get discouraged, we have a reasonable chance to prevail.

In that vein, AFFTA suggests that anglers

“find and support a fishing club, conservation group or similar group that aligns with your values,”

which may be the most difficult part of the task, as the sad fact is that most fishing clubs don’t get too involved in conservation issues, and most organizations operating at the state, regional, or national level tend to be closely aligned with the mainstream angling industry, which not infrequently participates at the leadership level and has a significant, negative influence on the positions such groups take on fishery management issues.  A reliance on the donations, in cash and in kind, provided by industry members can also make various angling groups eager to stay in industry’s good graces.

About the only large angling organization which has proven an exception to that general rule is the American Saltwater Guides Association, which despite its name is more than eager to work with individual anglers, and has consistently taken conservative, science-based positions on fisheries issues.

Thus, anglers will likely have to turn to mainstream conservation groups that are active in the marine resources space, if they wish to contribute to the fisheries conservation effort.

Having said that, AFFTA’s advice to anglers, telling them to

“Volunteer to help [their chosen organizations] restore habitat; make your voice heard with decision-makers responsible for the caretaking of fisheries; and make a financial contribution to organizations working to make a difference:

remains valid.  I’ve been involved in the fight for many, many years, and one thing I’ve learned is the importance of just showing up, and making yourself available as an informed and honest source of stakeholder input that managers can rely on when issues arise.

As I read AFFTA’s report, I was pleased to see that AFFTA recognized that anglers should use the dollars they spend to impact the management process.  

We often hear industry spokesmen talk about the economic contributions made by recreational fishermen, and then use those figures when arguing for their own preferred positions—which may not be in the long-term interests of the anglers themselves.  Yet, just as many industry members remain focused on little more than short-term income, some support management that focuses on the long-term health of fish stocks.  For that reason, anglers should heed AFFTA’s advice to

“Spend consciously and deliberately, exclusively supporting brands, outfitters and guides that participate in advocating for conserving the fisheries their brands depend on.  Tell them you support them for exactly that reason.  Tell your friends to do the same.

“As conservation-minded anglers and consumers, we have every right to expect accountability from businesses, state management agencies, the federal government, and anyone else that profits from or is in charge of protecting fisheries.  But we must also remember to support and provide cover for those willing to step up, step out and take part in advocating for climate-resilient fisheries.  [emphasis added]”

Such discerning spending habits need to be extended right down to the level of your local tackle shop, which may very well be promoting self-serving management policies that you would not support. 

I well recall a time about two decades ago when, after a hearing intended to help managers shape Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, the recreational fishing industry here on Long Island decided to boycott a local angling publication, after its publisher committed the “sin” of telling the Atlantic States Marine Fisheries Commission that the great majority of his readers wanted striped bass managed in a way that allowed them to grow both abundant and large, which is just what his industry advertisers, who favored a larger harvest of smaller fish, did not want the ASMFC to hear.

And I’ll conclude with that, for this post has already run a little too long.

But in concluding, I ask that you read the entire AFFTA report, which you can find at https://static1.squarespace.com/static/5dd2f8e63472e46421917604/t/6642ce9bc0034864b5a35577/1715654308249/Tomorrows+Fish+Climate+Report-Final+5.13.pdf. 

Then I ask that you don’t just walk away, but instead do as AFFTA advises, and get involved in the process of protecting your interests, as well as those of the fish.

For I can assure you that there will be many folks out there who will be working very hard to promote interests that are, and will remain, completely opposed to your own.

 

 

  

REP. PELTOLA STANDS UP FOR BRISTOL BAY

 

On May 1, 2024 Rep. Mary Peltola (D-AK) introduced a bill, titled the “Bristol Bay Protection Act,” in the House of Representatives. Such legislation, if passed and signed into law, would finally end the long-running conflict that has pitted proponents of the so-called “Pebble Mine” against Alaska Native peoples and others who have long harvested, enjoyed, and depended upon the abundant natural resources of Alaska’s Bristol Bay watershed.

 

Bristol Bay is one of the last, and certainly one of the largest, remaining sanctuaries for wild Pacific salmon. Its waters host naturally spawned populations of all five salmon species and support not only healthy runs of Chinook, coho, chum and pink salmon, but also the largest sockeye salmon run in the world.

 

Approximately 46 percent of the world’s wild sockeye salmon return to the Bristol Bay watershed and run up its six rivers to spawn. Those salmon support large and economically valuable commercial and recreational fisheries, as well as subsistence fisheries that have supported Indigenous peoples for millennia. Two cultures present in the watershed, the Yup’ik and Dena’ina, are some of the last remaining sustainable, salmon-based cultures in the world.

 

Yet salmon are not the only wildlife in the watershed. It is home to 29 species of fish, 190 species of birds, and over 40 species of mammals. Such diversity of life, in turn, provides social and economic benefits for people, supporting not only subsistence hunting, but also businesses that attract sport hunters, wildlife watchers, and other tourists.

 

The Bristol Bay watershed also contains substantial mineral resources, particularly copper and gold. However, the metal ores are of low quality, so that only very large mines, producing very large quantities of mine-related waste, would be economically viable.

 

The varied natural resources of the Bristol Bay watershed have led to a clash of values that will determine the future of the region, as traditional users of Bristol Bay’s living resources have come into conflict with those who covet its mineral deposits, and would develop mines and related infrastructure that would pose a serious threat to the watershed’s fish and wildlife. Since that conflict began nearly a quarter-century ago, the living resources of Bristol Bay, along with their traditional users, have ridden a roller coaster of legal and political actions that has seen their status change from protected to threatened to protected again, sometimes over the course of a very few weeks.

 

The roots of the conflict date back at least to 2005, when Northern Dynasty Minerals (Northern Dynasty) purchased the rights to the so-called “Pebble Deposit,” a deposit of copper, gold, and molybdenum ore that Northern Dynasty hoped to exploit, despite possible harm to the Bristol Bay ecosystem. That conflict grew more intense in 2014, after the United States Environmental Protection Agency (EPA) completed its assessment of the impacts of large-scale mining on the fish, wildlife, and people of the Bristol Bay watershed, and issued a proposed determination under section 404(c) of the Clean Water Act “to restrict the use of certain waters of the Bristol Bay watershed for disposal of dredged or fill material associated with mining the Pebble Deposit…”

 

The EPA took such action “because of the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining.”

The proposed determination preemptively halted the permitting process that had to be completed before the Pebble Mine could be developed. Northern Dynasty responded by bringing a lawsuit challenging the agency’s action.

The EPA initially defended against the lawsuit, but on May 12, 2017 it issued a press release announcing that Scott Pruitt, the new EPA administrator appointed by President Donald Trump, had reached a settlement with the Northern Dynasty. That settlement, which was allegedly intended to guarantee “a fair process for their permit application,” included EPA’s agreement to withdraw the proposed determination and take no further actions pursuant to the Clean Water Act until at least four years had passed, or until the Army Corps of Engineers (Corps) issued a final environmental impact statement, whichever came first. Northern Dynasty agreed to withdraw its lawsuits and to refrain from filing any Freedom of Information Act requests during that period.

 

With the natural resources of the Bristol Bay watershed again in jeopardy, a period of turmoil began, which saw the EPA halt its withdrawal of the proposed determination in response to strong public comment, despite the terms of its agreement with Northern Dynasty, then begin the withdrawal process again after the EPA’s general counsel directed the relevant EPA regional office to do so.

 

A press release announcing the EPA’s withdrawal of the “outdated, preemptive proposed determination to restrict use of the Pebble Deposit area as a disposal site” was issued on June 30, 2019.

On July 24, 2020, the Corps released a final environmental analysis that found the mine “would not be expected to have a measurable effect on fish numbers” in the Bristol Bay watershed, making the development of the Pebble Mine seem certain.

But then the seesawing began again.

Just a month after releasing its final environmental analysis, the Corps announced that it had made “factual determinations that discharges at the mine site would cause unavoidable adverse impacts to aquatic resources and, preliminarily, that those adverse impacts would result in significant degradation to those aquatic resources. Therefore…in-kind compensatory mitigation within the Koktuli River Watershed will be required to compensate for all direct and indirect impacts caused by the discharges into aquatic resources at the mine site.” Other adverse impacts at other locations would also require mitigation.

It would be very difficult for Northern Dynasty to perform the required mitigation, yet if it failed to do so, it would not receive the permit needed to develop the Pebble Mine.

At the same time that Northern Dynasty struggled with that issue, political pressure against the mine was growing. In September 2020, environmentalists secretly recorded Northern Dynasty’s chief executive officer telling prospective investors that the mine would ultimately be much larger, and would continue operations far longer, than was specified in the permit application. The public release of such statements caused the project to be scrutinized much more closely. And it turned out that some people very close to then President Trump, including his son Donald Jr., hunted and fished in the Bristol Bay region, and didn’t want to see the mine destroy any part of the watershed.

 

Ultimately, the Corps did a surprising about-face, and determined that the permit sought by Northern Dynasty should not be issued, citing problems with the waste disposal plan and declaring that “the proposed project is contrary to the public interest.” Northern Dynasty appealed that decision to the headquarters of the Corps’ Pacific Ocean Division, but that appeal was denied on April 25, 2024.

 

While that was going on, conservation advocates brought a suit challenging the EPA’s withdrawal of the proposed determination. It resulted in a federal appellate court decision that invalidated the withdrawal, and found that the proposed determination could be withdrawn “only if the discharge of materials would be unlikely to have an unacceptable adverse effect” on the watershed. Following that decision, the withdrawal of the proposed determination was vacated, and the Clean Water Act review was resumed.

 

That review resulted in an extended period of public comment and agency deliberations which culminated on January 30, 2023, when the EPA issued a final determination finding that “the discharges of dredged or fill material associated with developing a mine evaluated in this final determination will have unacceptable adverse effects on anadromous fishery areas in the Bristol Bay watershed,” and prohibiting “the specification of and restricting the use for specification of certain waters in the Bristol Bay watershed as disposal sites for discharges of certain dredged or fill material associated with development of a mine at the Pebble deposit.”

 

While that was good news for the salmon, for the fishermen, and for the other traditional users of the Bristol Bay watershed, it did not end the controversy over the Pebble Mine. In March 2024, to no one’s surprise, Northern Dynasty initiated yet another lawsuit, this one alleging that the EPA’s final determination was “arbitrary and capricious” because of its failure to adequately consider the economic consequences of its decision, as well as its supposed gross overestimation of the extent of the mine discharges.

 

More surprising, and probably far more bizarre, was Alaska’s decision to sue the United States in the Court of Claims, asking for more than $700 billion in damages. In its complaint, Alaska alleged that “mining is the only economically productive activity that can occur on these [Pebble deposit] lands,” and claimed that the EPA’s final determination, which prevented development of the Pebble Mine, was therefore a “taking” pursuant to the Fifth Amendment to the United States Constitution, which entitled Alaska to “just compensation” for its loss of mining revenues.

 

The Bristol Bay Protection Act, if signed into law, would put an end to such litigation and provide enduring protection for the Bristol Bay watershed, by incorporating the EPA’s final determination, which currently takes the form of a regulation, into a federal statute. It does so through language which simply states, “The final determination of the Environmental Protection Agency, published on February 3, 2023, and titled “Final Determination To Prohibit the Specification of and Restrict the Use for Specification of Certain Waters Within Defined Areas as Disposal Sites, Pebble Deposit Area, Southwest Alaska”…shall have the force and effect of law.”

 

Once so enshrined in federal law, the final determination would be immune from legal challenge, except on Constitutional grounds.

In introducing the Bristol Bay Protection Act, Rep. Peltola stated, “I came to DC to stand up for fish—to make fishing and the livelihoods of our fishing communities the national issue it deserves to be. Whole communities depend on Bristol Bay’s watershed for subsistence and as a deeply interwoven part of their social and cultural practices. In introducing this bill, we’re moving to protect our fisheries and streams, water supply, and the deep value these waters have had to Alaska Natives who have relied on them for thousands of years.”

 

Passage of the bill would provide lasting protection for such natural resources and the communities, cultures and fisheries which have long depended upon them, and finally end the decades-long threat posed by the Pebble Mine.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/