Now that H.R. 200, a bill that would amend and reauthorize the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), has passed the House of Representatives, it poses an even greater threat to the federal fishery management system.
Much of that threat arises out of the uncertainty that would be introduced by many of the provisions of H.R. 200, which create broad exceptions to the clear conservation and management language of the current law.
Ideally, the law should be worded so clearly that a person without legal training can read it and understand what is and is not allowed. When Magnuson-Stevens unambiguously states that “Conservation and management measures shall prevent overfishing,” its intent is perfectly clear. By using the word “shall,” that law doesn’t give fishery managers any discretion; any measure that allows overfishing is clearly illegal.
Similarly, when Magnuson-Stevens requires that “For a fishery that is overfished, any fishery management plan, amendment, or proposed regulation…shall specify a time period for rebuilding such fishery that shall…not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement to which the United States is a party dictates otherwise, [emphasis added, internal numbering deleted]” it’s pretty clear what fishery managers have to do when rebuilding a stock.
Unfortunately, that ideal is seldom achieved in the real world; some uncertainty always creeps into legislation, and the courts need to get involved and interpret the law. Whether the courts ultimate carry out the legislators’ intent often depends upon whether that intent is clearly expressed in the law’s language.
Magnuson-Stevens faced such a court challenge, after fishery managers failed to adopt fishery management measures that complied with the conservation provisions that were added to the law in 1996. The challenge arose in 1999, after the National Marine Fisheries Service (NMFS) proposed a summer flounder quota that had only a 17 percent chance of preventing overfishing.
The federal appellate court that issued a decision in that case, Natural Resources Defense Council v. Daley , held that “at the very least…to ‘prevent overfishing’…the [total allowable landings] must have at least a 50% chance” of keeping fishing mortality below the overfishing threshold. It decided that the law meant exactly what it said, that overfishing shall be prevented, and so enabled federal fishery managers to completely rebuild 44 once-overfished stocks over the last eighteen years.
H.R. 200 is dangerous because it destroys that sort of certainty and gives NMFS far too much leeway to allow overfishing and indefinitely delay the recovery of overfished stocks. It does so by creating loosely-worded exceptions to the requirements that the law imposes on fishery managers, and those exceptions render such requirements virtually meaningless.
H.R. 200’s exceptions to the mandatory timelines for rebuilding an overfished stock exemplify this point.
One such exception would delay stock rebuilding for an indeterminate period if “The Secretary determines that the cause of the stock being depleted is outside the jurisdiction of the [relevant fishery management] Council or the rebuilding program cannot be effective only by limiting fishing activities.”
Should such a provision become law, NMFS could avoid setting a final rebuilding deadline for overfished salmon stocks just by finding that the cause of their “depletion” lay in dams and other problems in their natal rivers. Similarly, fish such as winter flounder and many species of grouper , which rely on inshore spawning and or nursery areas, might never be completely rebuilt if NMFS declared that their problems resulted from conditions on such inshore grounds, and not from anything that occurred in federal waters.
Another exception, which would delay rebuilding if “the Secretary determines that one or more components of a mixed-stock fishery is depleted but cannot be rebuilt within [the required] time-frame without significant economic harm to the fishery,” seems designed to prevent the recovery of Atlantic cod stocks in our lifetime.
And an exception that would delay rebuilding if “the Secretary determines that the stock has been affected by unusual events that make rebuilding within the specified time period improbable without significant economic harm to fishing communities” is so broad that it could probably be applicable to any overfished stock.
The problem is made even worse by the deference that courts must give to the decisions of administrative agencies, including NMFS.
Pursuant to Magnuson-Stevens, NMFS’ decisions can only be challenged under very limited circumstances; only decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” will be overturned by a reviewing court. Courts may not substitute their own findings of fact for those of the agency, or decide which testimony should or should not be believed. Instead, so long as the agency didn’t exceed its Constitutional and statutory authority, a court must affirm any agency decision that is supported by “substantial evidence.”
And “substantial evidence” is a legal term of art, that involves far less “substance” than a non-lawyer might expect. Courts have defined it as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion…When the evidence may rationally be interpreted in more than one way, the court must uphold the [agency] decision.”
As a practical matter, that means that if there was any evidence provided during the rulemaking process that supports an agency’s decision, a court will not overturn that decision, even if far more evidence to the contrary was also provided to the agency.
Thus, if one person testified that a fish population was depleted as a result, perhaps, of pollution in inshore nursery areas, and two dozen people testified that the problem was overfishing, NMFS could choose to believe that one person’s word and, if H.R. 200 became law, decide that a rebuilding deadline should not apply. And the courts would let that decision stand.
At this point, someone might object that Magnuson-Stevens requires such management decisions to be supported by “the best scientific information available,” and that such requirement would protect fisheries from such unfortunate results. But H.R. 200 is putting that at risk, too.
Normally, what is or is not deemed “best scientific information” is determined by each regional fishery management council’s science and statistics committee or by experts at NMFS, a process that keeps most bad information from affecting management outcomes. But a provision in H.R. 200 would require that fishery management plans “identify data and analysis, especially concerning recreational fishing” and determine “whether such data and analysis could be provided by fishermen, fishing communities, universities and research institutions.” The identified data and analysis might then be considered “the best scientific information.”
The findings of professional researchers at universities and other institutions are already considered in stock assessments and other management actions, so that much of H.R. 200’s language offers few problems (although issues sometimes arise when “hired guns” working for various organizations seek to steer a stock assessment committee toward a particular conclusion). However, the notion that data, much less analysis, compiled by fishermen with no scientific background, could be considered “the best scientific information” should frighten anyone concerned with the health of fish stocks.
H.R. 200’s language could allow the New England Fishery Management Council to give a fisherman’s comments that “There is so much more cod out there than ever before” the same weight as a comprehensive stock assessment saying that the stock is in serious trouble, by deeming both “the best scientific information” available. And if the council decided to believe the fishermen instead of the assessment, and set harvest levels accordingly, it would be very hard to successfully challenge that decision in court.
That would clearly be a bad result.
But then, a lot of bad results would accrue if H.R. 200 became law. And on July 11, it took a big step in that direction.
Thus, it is time to gear up for an all-out fight in the Senate to prevent a bad bill from going any farther.
For if H.R. 200’s supporters win in the Senate as well as the House, our nation’s fish stocks will certainly lose.
