Seattle, Washington Field Hearing Regarding
Members of the Committee, thank you for this opportunity to provide written testimony on the reauthorization of the Magnuson-Stevens Fishery Conservation & Management Act, 16 USC 1801 et seq. (“Magnuson Act”). I have served as the Executive Director and counsel to the Pacific Coast Federation of Fishermen’s Associations (PCFFA) since the organization’s founding in 1976, shortly before the passage of HR 200, the Fishery Conservation & Management Act (FCMA). PCFFA represents working men and women in the west coast commercial fishing fleet – mainly owner/operators in the small to mid-size vessel fleet, the “family fishermen.” It is the largest commercial fishermen’s organization on the U.S. west coast.
PCFFA is intimately familiar with the Magnuson Act. As you know, some of the first efforts at extending U.S. fisheries jurisdiction started here on the west coast in the late 1940's and in 1969, some of PCFFA’s member organizations worked with former California Congressman Don Clausen when he introduced the first 200 mile limit bill in the Congress. PCFFA member organizations also worked to convince another former California Congressman, Robert Leggett, of the need for extended fisheries jurisdiction. Leggett’s support, as chair of the old House Merchant Marine & Fisheries Committee’s Fisheries & Wildlife Subcommittee, was crucial to the House passage of Congressman Studds’ bill, HR 200. The newly-formed PCFFA was one of numerous fishery groups throughout the nation urging President Ford to sign the bill when the FCMA arrived on his desk that spring. The FCMA was to be the “renaissance of America’s fisheries.”
In the years since, PCFFA has tried to work with the Pacific Fishery Management Council, and has been involved in developing legislative language in most of the reauthorizations of the FCMA.(e.g., see PCFFA’s 22 July 1985 testimony to the Commerce, Science & Transportation Committee). Some of our issues have included: 1) a requirement that fishery habitat language be included in the act; 2) a requirement that council members know something about fisheries before being appointed; 3) a requirement that council’s consider fleet safety and fishing community impacts in their decision making; and 4) a requirement that fisheries be managed sustainably. Indeed, PCFFA was probably the first fishery organization in the nation to argue for the fishery councils and the National Marine Fisheries Service (NMFS) to address fish habitat issues in fishery management plans. In the late 1970's it was clear to us that unless something was done to protect the in-river spawning and nursery habitat of salmon, no amount of regulation of the fishing fleet was going to conserve these fish.
I was one of the original members of the PFMC’s Salmon Advisory Subpanel and served as a commercial troll representative on that body before stepping down in the mid-1980's and being succeeded by PCFFA’s then-president, Nat Bingham. Two of PCFFA’s officers – Dave Danbom and Nat Bingham - subsequently served on the Pacific Council, although it was a real struggle to get Commerce and NMFS to appoint anyone from the salmon fisheries or committed to sustainable fisheries. A number of PCFFA’s other officers and board members have also served on various PFMC committees over the years. All of this is to say that our organization is as well-qualified as any, given its history and participation, to comment on regional council operations and Magnuson Act reauthorization.
We wish to thank Senator Wyden’s office for their assistance in allowing us to provide written testimony to this reauthorization hearing, although we would have preferred to have testified in person. The Committee is to be complimented, however, for its witness list and having brought many of those responsible for the current situation in the Pacific Coast fisheries together to offer their oral statements and be questioned by members. We are not content to do nothing in this reauthorization round, to simply give the Sustainable Fisheries Act time for implementation. It is clear to us that some legislative changes are needed now to the Magnuson Act to assure protection of fish stocks and working fishing men and women. It is unfortunate that there is a need to keep amending the Magnuson Act; the original FCMA was a well-crafted statute. The problem is it was handed over to those who either did not care about, or were incapable of, assuring America’s oldest industry was sustainable. We are resigned to the fact that we will have to keep amending the Magnuson Act until, as former Congressman Studds’ has stated, “they finally get it right.” PCFFA is a member of the Marine Fish Conservation Network (MFCN) and is working with that coalition on proposed Magnuson Act amendments for this reauthorization round.
PCFFA’s testimony here will focus on five issues: 1) essential fish habitat; 2) fishing effort reduction; 3) regional council membership; 4) the moratorium on individual transferrable quotas (ITQs); and 5) the marine protected areas (MPAs) in fisheries management. The positions taken here are PCFFA’s own and do not necessarily include all of the issues that will be raised by MFCN. We believe, however, they are consistent with most of the positions that have been developed by the coalition.
From the PFMC’s earliest days, PCFFA’s warnings on habitat were largely ignored, “blown-off,” by that council, NMFS and the state agencies until at least 1993. It was during the coho crisis of 1993 (the PFMC ordered a closure of both commercial and ocean sport fishing of coho that year) when it finally dawned on some that even complete fishery closures would not save the salmon if dam operations continued “business as usual,” if there were not adequate flows instream, and if something was not done to protect forested watersheds - particularly from the impacts of egregious logging practices.
The salmon fisheries are now left under the PFMC’s jurisdiction are largely a result of the efforts of a coalition of commercial and sport fishermen, tribes and conservation groups working tirelessly to protect and restore salmon habitat. In fact, the salmon fishery that remains offshore the three Pacific states, exists despite the actions of the PFMC and NMFS, not because of them.
Prior to the enactment of the Sustainable Fisheries Act (SFA), the Pacific Council appointed a “Habitat Steering Group,” largely at the insistence of the late Nat Bingham, and this committee has begun aggressively addressing salmon habitat issues. The PFMC has, with some reluctance, been willing to follow the advice of the experts on the salmon issue. The problem we have encountered has been NMFS failure, largely under the Endangered Species Act, to take effective action, particularly in the Pacific Northwest, to protect remaining salmon stocks. Initially the agency was reluctant to list, after it and the Pacific Council allowed salmon stocks to decline precipitously as a result of habitat destruction. Now the agency has taken more of a “list and run” attitude, still focused mainly on what little fishing effort is even allowed rather than the clear and obvious losses occurring in the rivers and watersheds from habitat destruction.
In the groundfish fishery, the Pacific Council has failed to date, more than three years after SFA passage, to put in place effective measures aimed at eliminating fishing gear impacts on groundfish habitat; i.e., prohibiting the use of “roller” trawl gear on hard and rocky bottoms. Perhaps the Pacific Council can be excused somewhat by its reluctance to put in place hard measures aimed at reducing the impact of fishing gear on essential fish habitat (EFH) given NMFS delay in implementation of EFH provisions enacted in 1996 SFA. Habitat damaging fishing practices (e.g., roller trawl gear) as well as coastal development and the resultant pollution continue to threaten the sustainability of our fish stocks and fishing industry. Yet, the continuing delay in finalizing EFH regulations and the approval of FMPs that do not address the EFH mandate raise serious questions about NMFS and the regional councils’ commitment to implementing the EFH requirements of the law. Indeed, it raises serious questions about their commitment to sustainable fisheries or to the future of this nation’s fishing industry.
It is clear to us that stronger language will be needed on EFH in the Magnuson Act to get NMFS and the regional councils to do what they should be doing.
The west coast groundfish fishery is a disaster. This one, however, unlike past fishery disasters caused by El Ninos, hurricanes and other natural occurrences, was of our own making and clearly foreseeable. As early as the late 1970's while the Pacific Council was actively pursuing its “weak stock” management policy for salmon (while blithely ignoring habitat impacts) severely restricting the
ocean fisheries, it was pursuing a policy of knowingly allowing the overfishing of certain species of the groundfish complex to allow the industrial trawlers maximum harvests. It failed to act in a timely manner to enact a limited entry program for groundfish. Mostly, the groundfish limited entry program merely secured a place in the fishery for a trawl fleet that was far too large for the existing resource. That program, incidentally, was enacted not only at the expense of the resource but to the detriment of the smaller hook-and-line groundfish fishermen and small trawl operators. While the Pacific Council has allowed itself to get sidetracked on recreational fishing closures and restrictions on the small-boat (and small) live-fish fishery, remember, it is the large trawl fleet that is taking the lion’s share of the groundfish resource and responsible for most of the bycatch (discards) in this fishery.
To us, one of the first steps needed to be taken to begin reversing the groundfish disaster is to reduce the trawl fleet capacity on the west coast by fifty percent or more. Whether it is done under the Magnuson Act or some other action, the trawl fleet needs to be reduced by at least half of its fishing capacity and half of the active fleet of boats. There is, too, we believe, a clear federal responsibility here. First, this disaster occurred under federal management. Second, the trawl fleet was encouraged to expand and increase in capacity under the “Americanization” of the U.S. fisheries following FCMA passage. Third, much of the trawl fleet expansion was funded by federal dollars in the form of loan guarantees.
A buy-back or retirement from the fishery program for the large trawlers cannot simply be a buy- out of the groundfish permit, it must be a complete retirement of the vessel from fishing (e.g., scrapping). Unless this excess capacity and excess fleet is taken out of the fisheries altogether, it will simply mean ex-groundfish vessels going into other fisheries and creating problems in those fisheries - a kind of “serial depletion.” We need, as one representative of the trawl fleet testified, “to find a way where they can leave the fishery with dignity.” This is no time for Congress to be cheap. The quicker the excess trawl capacity issue is dealt with in the groundfish fishery, the sooner that fishery will be on its road to recovery, providing jobs for small trawlers, longliners, hook-and- liners, and putting dollars back into the economy.
In 1985 and 1986, PCFFA was actively involved with the National Wildlife Federation working on Magnuson Act amendments. One of the amendments we sought was to tighten up the qualifications for membership on the regional councils, aimed at eliminating the “dabbling dilettantes” being nominated by the governors and appointed by Commerce that knew next to nothing about fisheries. That amendment did help the council process by at least requiring some fishery expertise of council members. The problem that exists today, is the language: 1) may have been drafted so tightly (although we do not believe it was) as to eliminate consideration and appointment of knowledgeable representatives of the conservation community; and 2) may not fully eliminate potential conflict of interest problems.
In 1985, there was little interest on the part of the conservation community in fisheries or the Magnuson Act. All that has changed in the past 15 years and PCFFA finds itself working closely with conservation organizations on fishery issues much the same as it worked with many of the same organizations on wetland, forest practice, and offshore oil issues two decades ago. If the governors or Commerce are reluctant to nominate or appoint conservation representatives because of current Magnuson language, then the act should be amended, making it explicit that knowledgeable conservation representatives are eligible for membership.
PCFFA is dismayed that some regional council members have used their position for their personal financial benefit. But before rushing to eliminate commercial fishermen from the regional councils, and the expertise and knowledge they bring to the process, Congress needs to consider the potential conflicts of interest of all council members and deal with that as a package. Clearly, representatives of organizations, who are staff, whether they be commercial fishing, sport fishing, processor, or conservation, will have a direct and financial conflict if they are forced to vote on an issue where commitments have been made to members or funding groups and the position of that individual could be in jeopardy as a result of his/her vote or votes on an issue. If the problem of having an organization’s executive or staff member sit on a regional council, and their potential conflict of interest is not addressed, the regional council’s are likely to end up being filled with association executives - at least from the fishing industry - with no practical fishing experience or expertise. They will sit on the councils earning their association pay placating the most extreme elements within their groups. This is the worst kind of conflict, because such members will be hesitant to take any position that any of their members might not agree with out of fear of losing their jobs.
An even more insidious conflict of interest problem exists with the state fishery directors sitting on the regional councils. The conflict of interest that helped destroy the salmon fishery was not from fishermen sitting on the Pacific Council but from state fishery directors carrying out their Governors policies of protecting the big dam operators, irrigation operators and timber corporations at the expense of the fish and fishing men and women. Congress has to come to grips with this very real conflict of interest that often exists with the state fishery directors sitting on the regional councils. At the very least, where a state administration policy is in conflict with fishery conservation, the state fishery director should be required to recuse themselves and not vote.
Finally, although this is not a council membership conflict of interest issue, it is a clear conflict of interest. It is the continuing problem of having the supposedly “independent” regional councils reliant on being represented by attorneys from the office of NOAA General Counsel. It is my experience that the regional councils would be far better served and make better decisions were they advised and represented by their own legal counsel and not attorneys bought and paid for by NMFS. How can we expect the regional councils to exercise any type of independent judgement if they are being advised by NOAA Counsel?
There are always some looking for a “magic bullet” that will cure all that ails a problem, despite the complexity. No doubt there are some that have testified before the committee that if only we allow the regional councils to go to ITQ management or establish no-take marine protected areas (MPAs) all will be solved in the fishery. We’re here to tell you there is no magic solution for our fisheries and some of the bullets that have been proposed can be downright deadly in the wrong hands or with a shotgun approach.
First of all, ITQs can only work for fisheries that are under quota management, which many are not under. Therefore, they are not much good for fisheries such as many salmon fisheries that are managed by seasons and area closures, not quotas. Second, ITQs do not necessarily work as proponents claim, nor do they necessarily promote conservation. In some instances, ITQs have made fishermen into sharecroppers. Their lot has not been improved by ITQs, but worsened.
ITQs are not and should not exist, as many have, for the benefit of processors, banks or lending institutions. Unless they clearly promote conservation and unless they can help fishing men and women and the fishing communities, they should continue to be banned. Unless they are uniformly endorsed by the fishing men and women who will be subject to them (not some magic bullet idea from a conservation group now seeing blue) they should not even be considered. You should note the Icelandic courts, to the relief of many of its fishermen, has thrown out that nation’s ITQ program.
Prior to any lifting of the ITQ moratorium, NMFS should be directed to prepare guidelines for the region councils to follow in any ITQ scheme and then allow for a national debate to determine once and for all whether this is the course that should be followed for some fisheries and, if so, what should the ITQ programs look like?
The other “magic bullet” now being thrown around to solve our fishery problems are marine protected areas or MPAs. Marine protected areas or reserves are hardly a new thing and have existed in coastal ocean areas of the world, including the U.S. for years. Within those where most human activities are precluded, they may be useful for baseline scientific research. In other instances, even where certain types of fishing and other activities are allowed, these areas can help to protect special habitats or certain resident species of fish or shellfish. What is important here, to note, however, is that they are not a useful management or conservation tool for all fisheries, nor do they necessarily have to preclude take, if their purpose is not solely for research.
We would hope that in the discussion over MPAs, Congress allow the regional councils to proceed with exploring this issue, neither limiting the debate, nor directing the councils or NMFS to take actions without thorough scientific and fishing industry input and review. MPAs may serve a useful purpose in providing us baseline information, or protecting certain habitats or resident species, but they are not a substitute for other fishery management measures or tough EFH protections. And, if not carefully selected and implemented, MPAs could actually exacerbate some fishery problems by unnecessarily closing some fishing areas or forcing fishing into areas not capable of sustaining high effort levels.
Again, PCFFA wishes to thank the committee for the opportunity to provide these written comments. If members or staff have any questions, please contact our San Francisco office. Thank you.