Fisheries Management: Checks and Balances

U.S. Constitution

Somewhere back in grade school, we all learned that the United States government is composed of the Executive, Legislative and Judicial branches. All three branches have equal standing; none is superior to the others.

Article I of the Constitution of the United States vested all legislative power in the Senate and House of Representatives. Article II defined the powers and duties of the President and executive agencies, while Article III created the Supreme Court and gave Congress the power to create the judicial system of federal district courts and courts of appeals that we know today. Yet, while Article III authorized the federal courts to decide cases “arising under this Constitution,” it did not expressly grant the Supreme Court to make the ultimate decision as to whether an executive or legislative action passed constitutional muster; the court first asserted that power in 1803, when it decided the case of Marbury v. Madison, and has wielded it ever since.

The Constitution’s grants of exclusive authority to each branch of government created a system of checks and balances, in which every branch has unique powers that allow it to limit the actions taken by either of the other two branches.

The need for such a separation of powers is frequently raised in political debates, but many anglers don’t realize that it’s important for fisheries management, too.

It all begins with the Legislative Branch which, in 1976, first passed the law that we now know as the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). The 1976 version, known simply as the Fishery Conservation and Management Act, forced most foreign fishing vessels to stay at least 200 miles from United States shores, but was not effective at conserving fish stocks. In 1996, Congress amended the law to better address conservation concerns.

The 1996 version of Magnuson-Stevens prohibited overfishing, and required federal fishery managers to rebuild overfished stocks within 10 years, if it was biologically possible to do so.

At that point, it became the duty of the Executive Branch, in the form of the National Marine Fisheries Service (NMFS) to transform the will of Congress, as expressed in Magnuson-Stevens, into a functioning fishery management program.

At first, NMFS didn’t do that very well.

In order to end overfishing and rebuild overfished stocks, NMFS would have to compel fishermen to stop overfishing and reduce their landings to levels that fish stocks could sustain over the long term. Fishermen didn’t want that to happen, because reducing landings would also reduce their incomes, at least in the short term. Because fishermen held most of the seats on the regional fishery management councils that drafted the management plans and proposed fisheries regulations to NMFS, and most of those fishermen didn’t want to see landings reduced, the conservation provisions of Magnuson-Stevens were not immediately implemented.

Things finally came to a head in 1999, after the Mid-Atlantic Fishery Management Council (MAFMC), acting against scientific advice, established a catch limit for summer flounder that was very unlikely to prevent overfishing.

That’s where the third branch of government, the Judicial Branch, played its role.

The facts of the matter were not in dispute. The biologists on MAFMC’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee (Monitoring Committee) recommended that 1999 summer flounder landings be limited to 14.645 million pounds, but the MAFMC rejected that advice, and adopted a 20.20 million pound quota. However, NMFS refused to implement the MAFMC’s proposed quota because, if it did, there was only a 3% chance that overfishing wouldn’t occur.

Instead, NMFS decided to implement an 18.52 million pound quota, which was still significantly higher than the Monitoring Committee’s recommendation, and had only an 18% chance of preventing overfishing.

In response to what seemed to be a clear violation of both the letter and the spirit of the recent amendments to Magnuson-Stevens, a conservation group, the Natural Resources Defense Council, brought a legal action against the Secretary of Commerce, who had the ultimate responsibility for NMFS’ actions, and against other related parties.

The matter, Natural Resources Defense Council v. Daley, eventually ended up in the United States Court of Appeals for the District of Columbia Circuit, where the court decided that the Executive Branch, in the form of NMFS, failed to properly carry out its duties as defined in the relevant legislation, which was Magnuson-Stevens.

The court, interpreting the language of Magnuson-Stevens, decided that NMFS must prioritize effective conservation measures above economic concerns. Most importantly, it found that, in order to meet the requirements of federal law, measures adopted by NMFS, including annual catch quotas, must have at least a 50% chance of achieving their stated goals.

In a scathing rejection of NMFS’ proposed quota, the court observed that “The disputed 1999 [landings quota] had at most an 18% likelihood of achieving the target [fishing mortality rate]. Viewed differently, it had at least an 82% chance of resulting in [a fishing mortality rate] greater than the target [fishing mortality rate]. Only in Superman Comics’ Bizarro World, where reality is turned upside-down, could [NMFS] reasonably conclude that a measure that is at least four times as likely to fail as to succeed offers a ‘fairly high level of confidence’ [in its success].”

Thus, the system of checks and balances worked just as intended, with the Legislative Branch passing Magnuson-Stevens, the Executive Branch failing to properly comply with the law, and the Judicial Branch interpreting the Legislative Branch’s actions and, in so doing, requiring the Executive Branch to correct and improve its management system.

We need to think about that this year, as Congress considers new amendments to Magnuson-Stevens, because effective fishery management that rebuilds and conserves the nation’s fish stocks begins with a strong and effective federal fisheries law. Without a good legislative base on which the judiciary can build, fish stocks are left vulnerable to executive agency actions.

We saw an example of that last year.

Upon taking office, Commerce Secretary Wilbur Ross expressed his desire to obtain “maximum sustainable yield from our fisheries,” and at the same time, he spoke of the need to “relieve the current burden of regulation that has shifted American economic growth overseas and made us uncompetitive on the world stage.”

In 2017, Secretary Ross turned his beliefs into action when he authorized the reopening of the 2017 red snapper season for private-boat anglers in the Gulf of Mexico, largely for economic reasons, even though staff had clearly informed him that such action would cause anglers to exceed their annual catch limit by forty percent.

Once again, an executive agency’s action violated Magnuson-Stevens’ prohibition against overfishing, and once again, conservation advocates asked the judiciary to intervene. In this instance, the season ended too soon to allow the court to take any action; however, the court ultimately retained jurisdiction over the matter, to prevent the agency from ignoring the law, with respect to red snapper, in 2018.

Yet the possibility that NMFS will violate the law again, with respect to another fishery, remains.

In March 2018, NMFS’ head Chris Oliver addressed the Seafood Expo North America, a commercial fishing industry event held in Boston where, according to the industry publication Undercurrent News, “he made it clear that he was using his leadership role to both follow the administration’s charge to combat excessive regulation and also looking out for harvesters.”

Mr. Oliver reportedly reaffirmed his support for science-based management, but also said that “I also believe that there is room for flexibility and a greater role for common sense frankly in our approach to fishery management. And I want to bring a more business-minded approach to that process.”

Over all, the tone of Mr. Oliver’s comments was far too reminiscent of NMFS’s tone in 1999, when it set the summer flounder quota, and the comments that accompanied the reopening of the 2017 red snapper season. Such an agency outlook can easily lead to agency actions that don’t comply with the law.

Thus, to keep the system of checks and balances intact, it is important to have strong fisheries laws that can be readily enforced by the courts. Pending legislation, such as H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, along with H.R. 2023 and S. 1520, the Modernizing Recreational Fisheries Management Act, chip away at such laws by granting the executive agency too much discretion to allow overfishing and delay the rebuilding of overfished stocks.

Both H.R. 200 and Mr. Oliver call that “flexibility,” but what it is, in fact, is the sort of legal uncertainty that makes it much more difficult for the courts to protect the public’s interest in healthy fish stocks.

Without the checks and balances provided by clear legislation, which the judiciary can easily enforce, we could easily revert to the days when an executive agency such as NMFS again believed that a management plan with a mere 18% chance of success came close enough for government work, although it never really came close at all.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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