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By Pietro Parravano, Zeke Grader, Glen Spain
Pacific Coast Federation of Fishermen’s Associations
The recent June decision by the North Pacific Fishery Management Council to give 90 percent of the quota shares of Bering Sea crab fishery to a handful of fish processors -- many foreign owned -- regardless of whether these processors even owned vessels that had ever participated in the fishery, may have been the last straw. Can the United States any longer afford a system of fisheries management seemingly rife with conflicts of interest, unrepresentative of many sectors of the fishery while long dominated by others, that has allowed the depletion of the very stocks it was charged with conserving, and now is embarked on a course to plunge the nation’s fishing men and women into a type of 21st century serfdom?
Prior to 11 June, many of us within the industry, though often frustrated with the regional council process and with many of its decisions, not to mention its decided lack of leadership and vision, were nevertheless willing to defend the process. The theory was that by combining federal and state managers along with “knowledgeable” private citizens in the development and oversight of plans for managing ocean fisheries in eight separate regions of the country we would eventually arrive at good, locally based decisions. At worst, we thought that with some tweaking of the system, some reforms, we could make the regional council system work. But can it work? The events of June 11th should give us pause, even among those of us who have been the staunchest defenders of the council system, to wonder whether it is time to just put a bullet through the heads of these eight bodies, and get on with something else.
Nearly thirty years ago, when the debate was raging in Congress on whether and how to extend U.S. jurisdiction over fisheries from the then-12 mile line to a point further offshore, the concept of regional councils as a means of managing complex fisheries in this newly-claimed area seemed downright brilliant.
In 1976 Congress, to justify this extended jurisdiction, and going against early U.S. efforts aimed at thwarting claims by Central and South American nations of 200 and 500 miles zones that were interfering with the U.S. tuna fleet, concocted cover by establishing a comprehensive management scheme. The rationale was that we were not kicking out the foreign boats, after all, we were just acting to protect the fish stocks off our own coast in the absence of international agreements. The foreign boats could stay (under treaty or, as we termed them, “agreements”) until the U.S. could demonstrate that its own fleet was capable of harvesting all the fish in this new “Fishery Conservation Zone” (later renamed by President Reagan as the Exclusive Economic Zone or “EEZ”). This was to be the “renaissance” of the U.S. fishing industry.
Just extending jurisdiction and turning the management of this new zone over to the states did not appear to be a workable solution, however. In most states, the fishery agencies were weak and poorly funded and utterly incapable of regulating offshore fisheries.
Furthermore, who would arbitrate the inevitable boundary disputes among the states over these extended waters, a real headache along the Atlantic seaboard (e.g., how would tiny New Hampshire’s 200 mile zone be determined?). The three interstate fishery commissions (Atlantic, Gulf States, Pacific), dating back to the late 1940’s, were not particularly popular and were viewed as being both dominated by recreational interests and having no management experience at that time. On the other hand, no one wanted to turn over management of the fisheries of this vast new area – the 3 to 200 mile zone – to a new federal fishery agency (the National Marine Fisheries Service was only 5 years old at the time of the 1976 passage of the Fishery Conservation & Management Act) in far away Washington DC when it had almost no fishery management expertise either.
The compromise solution was to create a new management system that would involve the state fishery managers, a regional representative of the new NMFS and private citizens, nominated by the Governors and selected by the Commerce Secretary (the Department NMFS was put under during the Nixon Reorganization), to sit on these eight regional bodies. These eight councils were then charged with developing fishery management plans (“FMPs”) pursuant to national guidelines Congress had spelled out in the FCMA (what we now call the Magnuson-Stevens Act).
However, while it appeared that these regional councils were autonomous bodies, bringing regional control and democracy to the fishery management process, a great deal of federal authority still remained under the surface. First of all, the private citizen members of the councils – which in some instances represent the majority – were appointed by the Secretary of Commerce, essentially meaning NMFS. Even though the nominations are made by the Governors, the law requires a minimum of three nominees for each position and NMFS tells the Governor’ offices of the types of individuals they were looking for, implying that if a particular Governor does not submit the types of names NMFS wanted, it [NMFS] would look to the names submitted by other Governors. This has interjected a note of politics into the nomination process that has sometimes resulted in passing up the best candidates. Anyone too critical of NMFS tends to get ignored. Even in the case where the nomination was for a mandatory state seat, the Secretary (that is, NMFS) has in fact rejected entire nomination lists if its leadership did not like any of the individuals and sent them back to a Governor for different nominees. Thus, NMFS has exercised a great deal of control – mostly behind the scenes – over whom gets appointed, for better or worse, to the regional fishery councils.
Second, the fishery management plans and any amendments to those FMPs have to be approved by the Secretary of Commerce, which, in practice, gives NMFS a total veto. While many NMFS officials have sought to blame the current fishery problems on the councils, the fact is that NMFS has the final say and has, in fact, rejected plans or amendments it has not liked for various reasons. One example was when the agency rejected the whiting sharing plan devised by the Pacific Council in the early 1990’s that would have allocated more of the fish to the smaller, community-based trawl fleet supplying shoreside processors. NMFS, at the behest of the Seattle-based factory trawl fleet and their DC lobbyists, simply overturned the Pacific Council’s specific recommendation and ordered more fish to be delivered to the factory trawlers instead. So, in fact, NMFS does overturn council plans, though not necessarily because they may violate the law or allow overfishing, but often because of pure political strong-arming. When this kind of political pressure in allowed into the process the law, or for that matter the fish or fishermen, don’t mean squat -- the only thing that matters is who has the most political clout with the agency. NMFS sounds mightily like Pontius Pilate when it protests that it is just adhering to council prepared management plans. The reality is often far different.
Third, NMFS provides much of the data and staff to the councils. The councils depend much too heavily on NMFS or NMFS-funded research on which to make their decisions. A council may develop a plan that appears reasonable on the surface, based on stock data it was provided by NMFS, only to find a few years later that it allowed overfishing because the data, and the research it was based on, was inherently faulty. This is precisely what happened with the current Pacific groundfish closure disaster. The groundfish crisis was a direct result of agency mismanagement and denial, plus inconsistent agency policies promoting both fishery expansion and contraction simultaneously.
NMFS staff also play a significant role on various council panels, including the work teams and Scientific & Statistical Committees (SSC). Perhaps the most egregious example of NMFS staff influence over the regional council’s is the federal agency’s insistence that the council’s utilize attorneys supplied by the office of NOAA General Counsel – NMFS’ own lawyers. Thus, the councils do not have independent legal counsel on whom to rely for legal advice. Instead, they must rely on the lawyers NMFS supplies – a clear conflict.
Finally, the reality that regional council budgets have to go through NMFS first for Congressional appropriations means that NMFS exercises a great deal of control over what the councils do and their decision making through the power of the purse strings. No regional council is going to get seriously in NMFS’s face, even when they believe NMFS is dead wrong, when NMFS is controlling the budget for that council’s staff, travel, meetings and members per diem.
NMFS has so much power over the process that the protests from NMFS, and particularly former NOAA and NMFS officials such as Terry Garcia and Andy Rosenberg, when downright disingenuous when they tried to blame the regional councils for the maladies affecting so many U.S. fisheries. In most cases the blame must be laid squarely at the door of NMFS.
The problems with the regional councils are not new. They did not start with the collapse of the New England and West Coast groundfish stocks, nor the events of June 11 in Alaska. Almost from the beginning there were problems. The first regional councils were often unbalanced -- geographically and by fisheries. Among the private citizens appointed were persons with little, if any, knowledge of the fish or the fisheries and, judging by some of their attendance, even less interest. By the time of the Carter Administration the situation was particularly deplorable. Attempting to address that problem, PCFFA finally succeeded in the 1986 reauthorization of the by-then renamed Magnuson Act in inserting language that council members had to be knowledgeable about some aspect of the fisheries (no more “dabbling dilettantes”).
Also, to get at some of the concerns about lack of geographical balance, then-Congressman Leon Panetta, at the behest of PCFFA and California fishermen, introduced legislation to create a separate California council, a move that finally got NMFS to appoint more Californians than it was appointing from Idaho. Panetta also got inserted into report language in one past reauthorization a statement of the need for a salmon troll representative on the Pacific Council. That fishery, which was and remains one of the main fisheries managed by the PFMC, had no representation whatsoever during the early years of the Pacific Council. Only after Panetta’s intervention did a troller -- Dave Danbom (a 1983 “Highliner” award winner) -- finally get appointed. Of course, the PFMC, after Bingham’s death in 1998, is again without a troll representative, although it has got two charter boat representatives from California. However, there’s no guarantee that California will hang on to its fourth seat given the current Administration’s hostility to the state, as witnessed by its recent pronouncements on water and offshore oil issues.
Next in line after the balance issue was the problem of conflicts of interest. Much of the attention, of course, has been focused on a handful of industry council members who unabashedly vote for their own pecuniary interests at the expense of others or the resource itself. This conflict has drawn by far the most attention from those seeking to get rid of fishermen or fishing industry representatives on the councils, and it was in fact a real problem until some fairly strict conflict of interest reporting requirements were mandated. Of course no one ever talks about the fast majority of fishermen representatives who consistently vote against their immediate economic interests, doing what they thought was best for the fish or the fishery and not their own pocketbooks.
Conflicts of interest do, however, remain a problem. For instance, NMFS has taken to appointing association executives or industry lawyers or lobbyists to councils instead of rank-and-file fishermen. These individuals may not have a direct economic interest in a council vote, but they are certainly there to protect the interests of the groups they represent, and their own salaries ultimately depend on how well they deliver for their employers, not on how well they protect the resource. As a side bar, it should be noted that the appointment of association executive directors, lawyers and lobbyists, whether they be from the commercial, recreational or conservation sector, flies in the face of the original intent of placing persons knowledgeable -- particularly with at-sea experience -- about the fish and fisheries themselves on the councils, not just people skilled at manipulating the fishery management process. Association executive directors, lawyers and lobbyists usually do not have first hand knowledge of fishing and cannot exercise the type of independent judgment hoped for from the private sector council members.
The third type of conflict of interest, and perhaps the most insidious, is that of the state directors. State fishery directors, like association executive directors, lawyers and lobbyists, keep their jobs by pleasing their bosses not by doing what’s right for fish or fisheries. Thus it has not been unusual to witness state fishery directors defend practices that harm fish, from Washington and Idaho state directors staying silent on the impacts of the dams on the Columbia, to the Oregon director denying the impacts Oregon logging has had on coho populations, to various California fishery directors downplaying the affects of the state’s massive water diversions on chinook salmon populations. When they make these statements these state directors were sitting on the council protecting their jobs, not conserving fish. It’s not much different in other regions of the nation. Try to imagine a state fishery director from Louisiana, for example, chiding the oil industry for its destruction of wetlands in the Gulf of Mexico that is harming shrimp and other fisheries.
The real test of the regional council system’s viability, however, is the result of their management of fisheries for more than a quarter century. The track record has been poor. In both New England and the West Coast, of course, the council process allowed, even encouraged, the near total collapse of those groundfish fisheries. Even among the less publicized fisheries there are lots of stocks that are overfished or on the verge of collapse. Stock rebuilding programs have had spotty success, and frankly provide too little too late. Prevention of a collapse in the first place would have saved fishing dependent families, jobs and communities from intense economic dislocation that should never have happened. Even if you quibble with the definitions of “overfished,” the fact is inescapable that today nearly half of the fisheries under council management are in piss poor shape.
The west coast salmon fishery is one of the greatest failures of the regional council process. Over the last 30 years the council process, and fisheries managers in general, have been like deer in the headlights, too paralyzed to use the authority they could have exerted to prevent the widespread destruction of salmon habitat, damming of whole river systems, dewatering of rivers and widespread agricultural pollution that are the primary drivers of the deterioration of our once great west coast salmon fisheries.
One of the problems is that when the Magnuson Act was first passed fisheries managers, and the regional councils, were not given any real legal authority to protect inland habitat that is vitally important to support marine fisheries. It has only been since the triggering of the Endangered Species Act (ESA), when several salmon populations have crashed nearly to the point of extinction, that NMFS has had any real legal authority to prevent further loss. Even then, NMFS has shown a phenomenal lack of backbone in defending the resource and the people whose lives depend on that resource against political pressure from agricultural, timber and mining interests who profited from salmon destruction and are actively working to make the ESA (and fishermen) go away.
Lack of legal ability of fish managers and the regional councils to protect fish habitat was one of the reasons PCFFA wrote and successfully lobbied for the adoption of provisions in the last Magnuson Act reauthorization for the designation and protection of “essential fish habitat.” At last, fishermen thought, NMFS will have at least some tools to help protect and restore fish habitat proactively, well in advance of an ESA listing (by which point it is nearly too late), and keep these fisheries from being depleted by the actions of others. However, NMFS and the regional councils dragged their feet for years on this essential fish habitat (EFH) designation process, to such an extent that PCFFA and other fisheries groups joined a lawsuit in 1999 against them which resulted in a court order requiring the councils to implement EFH provisions, a process still not complete. Thus even the relatively weak power that EFH designation gives the councils to protect fish habitat, they have largely refused to exercise, as much because of internal divisions and conficts of interest as well as sheer failure of political will.
With all these failures, many of them inherent in the regional council process, the question has to be asked: Is the council process still worth keeping? And if the council process should be replaced, what should replace it that would be better?
These are legitimate policy questions that should be asked, particularly as we are moving toward another Magnuson Act reauthorization, and through this article we are opening that question up for some much needed industry-wide discussion.
PCFFA has not taken a position on replacing the regional council system, but we believe that the topic should always be open for thoughtful discussion. It may ultimately be that we will all conclude, as an industry, that the council process, for all its past failures, is still worth saving and should merely be modified to make it more workable. But what changes should be made to accomplish even that? How can we restructure the process so that it truly protects and restores the nation’s damaged and mismanaged fisheries as well as protects fishing communities?
This topic should be discussed in your association meetings, in Fishermen’s News and in every other forum you can find within our industry. At this critical junction, any good idea can have an major impact. What are our alternatives? Your ideas and comments are welcome, and much needed. Tell us what you think?
Pietro Parravano is current President of the Pacific Coast Federation of Fishermen’s Associations (PCFFA), the west coast’s largest organization of commercial fishing families, and a member of the Pew Oceans Commission. Zeke Grader is PCFFA’s Executive Director and Glen Spain is PCFFA’s Northwest Regional Director. PCFFA can be reached at: Southwest Regional Office: PO Box 29370, SF, CA USA 94129-0370, (415)561-5080; Northwest Regional Office: PO Box 11170, Eugene, OR USA 97440-3370, (541)689-2000; or by email to: fish1ifr@aol.com. PCFFA’s web site is at: www.pcffa.org.
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