Defending Magnuson-Stevens from the Lame Duck

Lame Duck

The 115th Congress is on its last legs.

Both chambers adjourned before the midterm elections to let their members campaign ahead of the vote. Now, they are meeting in a so-called “lame duck session,” which will provide outgoing members, and outgoing majorities, one last chance to pass their priority legislation before the 116th Congress ushers in newly-elected legislators, and new legislative priorities, in 2019.

The House of Representatives plans to meet for 16 days before year’s end, although that schedule could be changed if compelling reasons to do so arise. The remainder of the Senate’s 2018 session isn’t so clearly defined, but it’s safe to predict that it will probably meet for 20 days or so before adjourning.

That’s not a lot of time to get things done, given the outstanding issues. A continuing resolution to finance a number of government agencies expires on December 7; before then, Congress must either agree to provide further funding for those agencies or face a partial government shutdown.

The Senate needs to act on a number of pending judicial and agency appointments; should they fail to do so before the end of the year, the appointment process for the open positions must begin anew in 2019.

And the two chambers still need to find common ground on a Farm Bill, legislation that has been stalled for much of this year.

Even as those issues are being debated, there will be a lot of pressure on legislators to pass other bills during the closing days of the 115th Congress, and some of those bills could have a negative impact on the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), the nation’s most important fishery management law.

Such harmful legislation, in both the House and the Senate, fall under the general rubric of the “Modern Fish Act.”

The Theodore Roosevelt Conservation Partnership (TRCP) recently called for Congress to pass the Modern Fish Act in the lame duck session. At the same time that it admitted that TRCP’s efforts to pass that bill represented “a Hail Mary pass,” it argued that “our coastal economies deserve to see us build upon the bipartisan support for [the Modern Fish Act], not head back to the drawing board in January.” Members of the recreational fishing and boating industries have echoed that sentiment.

The TRCP statement provides grounds for concern, because it also stated that the Modern Fish Act “passed out of Senate committee and House this summer,” despite the fact that the House and Senate bills were very different bills.

The Senate Modern Fish Act, S. 1520, is a somewhat sullen piece of legislation being advanced by some elements of the recreational fishing community, who feel ignored by federal regulators and are striking out against commercial fishermen who, they believe, are getting all of the regulators’ attention. At least one national angling group has complained that Magnuson-Stevens “has never taken recreational anglers into account, favoring instead commercial fishing interests.”

Although S. 1520 would make a few things harder for some members of the commercial fishing industry, and would deprive federal fishery managers of some useful management tools, it is relatively harmless, and more of a nuisance than a threat to the fishery management process.

That can’t be said of the House bill, H.R. 200, the so-called “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.” It is a far larger and more comprehensive bill than S. 1520, and seeks to make substantial revisions to Magnuson-Stevens and weaken many of the conservation and management provisions of the current law. Modern Fish Act provisions make up only a small part of the House bill.

Even so, Modern Fish Act supporters seem to consider S. 1520 and H.R. 200 different faces of the same legislation. That was clearly implied in the TRCP statement, as well as in a joint press release issued in February 2018 by ten of the Modern Fish Act’s largest institutional supporters. Such release noted that H.R. 200 had been approved by the House Natural Resources Committee and said that “the coalition [that issued the release] encourages Senate leadership to quickly bring S. 1520 to the floor for final passage. Marine recreational anglers and boaters are eager to see this landmark legislation move through the House and Senate and signed into law.”

That statement appears to describe a process in which H.R. 200, which has since been passed in the House, would be conferenced with S. 1520, should that bill ever be passed in the Senate, a process that could allow many of the harmful provisions of H.R. 200 become law.

Jeff Angers, president of the Center for Sportfishing Policy, an organization that has been coordinating the political efforts of Modern Fish Act supporters, has adamantly denied any plan of conferencing H.R. 200 with S. 1520, despite what would appear to be contradictory language in the TRCP announcement, the joint press release, and other statements made by Modern Fish Act supporters.

Whether or not Modern Fish Act supporters ever planned to conference the two bills, the time remaining in the lame duck session seems insufficient for any such effort, as it is very unlikely that a conference committee could meet, reach an agreement, and then see both the House and the Senate approve the final, compromise bill before the end of the year.

Even if conferencing the two bills is no longer a practical option, it’s clear that Modern Fish Act supporters will try to have S. 1520 passed in the Senate this year, and then get it approved by the House. That will also be a difficult task, as it’s hard to see the House approving such legislation without Rep. Young or some other member attaching one or more pet provisions to it along the way. Even if any such amendments, should they then be approved by the Senate, resulted in less harm than a conference with H.R. 200, they could still do some real damage to federal fishery law.

The bottom line is that there is no scenario in which the Senate’s approval of S. 1520 would help federal fishery managers maintain healthy and abundant fish stocks, or assure that such stocks will remain healthy and abundant for future generations. S. 1520 is an ill-conceived bill that deserves to die without reaching the Senate floor; the fact that, standing alone, it won’t do much harm is hardly a reason for passage.

Thanks to the mid-term elections, the climate in the House will change from one that promoted short-term exploitation, and bills such as H.R. 200, to one that favors conservation and managing fish stocks for the long term. In such an environment, legislators are unlikely to amend Magnuson-Stevens piecemeal, with bills such as the Modern Fish Act. Instead, those who supported such bills will have the opportunity to come forward with proposals that address their concerns within the context of a comprehensive review of federal fisheries law.

But until then, Magnuson-Stevens must be defended in the lame duck. To do that, the Senate must allow the Modern Fish Act to die in the 115th Congress, so that it can begin anew, and with a clean slate, in 2019.

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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