End Runs on the Magnuson-Stevens Act: Yet Another Case Study

Tim Sloane

Last month I wrote about the need for fishing sectors to come together to fend off some of the larger threats facing all fisheries: resource decline, loss of access, and all of the other anthropogenic and physical phenomena that are making fish harder to catch. These affect everyone in the fishing industry, whether recreational, commercial, commercial passenger fishing vessel, or otherwise. Attempts to regulate around them, like Rep. Garret Graves’ H.R. 3094, are shortsighted solutions for only a portion of the affected parties. Eventually, those phenomena are going to catch up with everybody – how are you going to fish red snapper when there are no red snapper – unless the parties come together to address the real underlying problem.

In the case of H.R. 3094, which is a thinly veiled allocation solution to a much broader sustainability problem, I wrote that sector-on-sector antipathy had led to an end-run around the Magnuson-Stevens Act (MSA). I have to admit that a much more immediate threat to West Coast fishermen was actually fueling that post. With the introduction of Rep. Sam Farr’s H.R. 5797, fishermen are faced with yet another attempt to disrupt the established fishery management process under the MSA.

In its current iteration, the MSA represents a truly bipartisan bargain whose beauty lies in the thoroughness of its process. It establishes an impressive decision-making body with representation from just about every conceivable stakeholder group. It requires rigorous scientific analysis to inform those decisions, in terms of both ecological and economic consequences of particular course of action. The MSA provides ample opportunities across time and place for public comment and the incorporation thereof into management decisions. And as a backstop, the regional fishery management councils that largely administer the process are not even the final decision-makers. That responsibility is left to the National Marine Fisheries Service (NMFS), the expert federal agency on fisheries management matters for the most scientifically advanced nation in the world.

One would think that this process, which encapsulates our shared values of democracy, capitalism, inclusiveness, informed decision-making and equity would be good enough for the various parties that had a hand in crafting the grand bargain.

Apparently it’s not.

California Marine Monument Proposal

In early June, I caught wind of a vague proposal circulating on the West Coast. I got my hands on a PDF with no apparent author that contained a discussion of the need for a series of national monuments off the California coast. Specifically, the authors expressed the need to employ the federal Antiquities Act to close down nine seamounts, ridges and banks to fishing activity, as well as to oil drilling and mineral exploration. The stated justification for the closures was a need to protect benthic features, including deep-sea corals, sponges and formations.

The Antiquities Act was designed to prevent looters from pillaging archaeologically significant sites. It allows the President to unilaterally close an area off from any commercial or extractive use. Such closures are permanent. It’s an important piece of legislation, employed by almost every sitting president over the last century, and helpful in preserving important pieces of American heritage like Aztec pueblos in Arizona, Fort Sumter in South Carolina, and Muir Woods in California.

It was not intended to manage fisheries.

What’s the Problem Here?

West coast fishermen agree that we need to take a precautionary approach to managing potential deep-sea resources at these sites. The fear of massively disruptive activities like oil drilling, fracking or mining are very real and worth protecting against. But the Antiquities Act is a hammer, and what’s needed here is a scalpel.

The proposed “conservation areas” are generally 40 to 150 miles offshore, and are generally in deep water. They are important fishing areas. All support highly migratory species, including albacore and swordfish. Some areas feature Dungeness crabbing, and hook and line rockfish fishing. Tanner and Cortes Banks, which were originally part of the proposal but were ultimately left out of H.R. 5797, are shallow features with lobster trapping, a set gillnet white sea bass fishery, and halibut. And while distance and weather make it such that these areas don’t see heavy fishing every year, they have come to be critical fishing grounds for some in the California fleet. And as our fisheries change, it’s going to be increasingly important to have access to these areas to make up for opportunities we lose elsewhere.

H.R. 5797 takes a few steps back from the original proposal I mentioned above. It allows all recreational and for-hire fishing, and the commercial albacore fishery, in the proposed monument sites. It deleted Tanner and Cortes Banks from monument consideration, probably because the breadth of fishing activity occurring there. And it sets up a parallel process for managing fisheries inside the monument areas by the agency responsible for managing the monuments. Otherwise, it has the potential to prohibit each and every present and future fishing use of the proposed conservation areas.

This is fisheries management by fiat.

Leave Fisheries Management to the Fishery Managers

What I see from this proposal is that fisheries management under the MSA isn’t working for monument proponents, so they’d like to manage fisheries in an alternate universe. It’s a universe that doesn’t necessarily include the decades of experience the regional fishery management councils have developed during their tenure. It doesn’t include the robust stakeholder involvement that is a cornerstone of MSA management. It doesn’t provide for the rigorous science occurring at the councils or NMFS that ensures our decisions are informed and capable of achieving the impressive conservation goals we’ve set out for ourselves.

What it does do is serve the needs of non-fishermen who don’t want to sit at the Magnuson-Stevens table.

We put processes in place to ensure that everybody gets a fair shake, a.k.a. due process, especially when it comes to using the government to impede an individual’s ability to earn a livelihood. Blanket restrictions on fishing via the Antiquities Act are unduly punitive because they don’t give affected fishermen an opportunity to sit at the table and craft a collaborative solution. The MSA does that. And to those who would claim that the process doesn’t work, I point to the Pacific Fishery Management Council‘s existing groundfish Essential Fish Habitat regulations, which already prohibit bottom trawling in the proposed monument areas. It might just be that we’re fighting off a solution to a problem that doesn’t exist.

My hope is that we can all agree on two things: first, that we should consider protections for deep-sea flora, fauna and features that we know little about, because they might be important to have around one day; and second that those protections are narrowly tailored to achieve their goals, without unduly preventing a truly innocent fisherman from earning a living.

We can have it both ways, and that’s the beauty of Magnuson-Stevens. Works well enough for me.

About Tim Sloane

Tim Sloane is executive director of the Pacific Coast Federation of Fishermen's Associations and its sister organization, the Institute for Fisheries Resources

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