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The scenario is not difficult to imagine. The National Oceanic & Atmospheric Administration -- ostensibly a science agency that also happens to be home for the National Marine Fisheries Service -- had been mired in New England's groundfish controversy since the new Administration took office. NOAA was also being attacked by the region's Congressional delegation -- mostly from the President's own party. The only solution it had at hand was -- this was before it even picked its NMFS director -- to divide the catch up between various sectors and then allow them to fight it out over the available quota.
None of this has gone down well in the region. That is, excepting for the Environmental Defense Fund (EDF), which has received millions in foundation grants to promote an economic scheme that paves the way for massive consolidation and a large corporate take-over of publicly-owned fishery resources, and one hook-and-line group that had been working to provide security for its members through some form of sector allocation long before EDF or NOAA arrived on the scene dubbing it "catch shares," -- along with IFQ programs -- and claiming it as their own.
NOAA was also faced with the embarrassing revelations of a rogue enforcement unit in New England -- news of which quickly spread to fishing communities across the country. Even reassigning the problem agents appeared to be bungled, according to press reports, when it was found that those agents ended up in jobs paying in the mid $100,000 range while some of their fishery victims suffered bankruptcy, even jail time.
Adding to NOAA's headaches, beginning in late April it was handed the job of assessing the magnitude and impact of what would turn out to be the nation's largest environmental disaster -- BP's Macondo well blow-out in the Gulf of Mexico. Here again NOAA found itself mired in controversy. It low-balled, in its public statements, the magnitude of the spill. It appeared to go along with the use of dispersants, which hadn't yet been tested for toxicity or impact on the environment. It then declared the oil "gone" when it wasn't, and announced local seafood safe to eat when contaminants were still present in some of the fish and shellfish being found. Indeed, the tests used for seafood safety in the Gulf were far less rigorous then those normally applied. In all, these blunders left the appearance that NOAA seemed more interested in minimizing BP's potential liability than in working on behalf of the nation's citizens and protecting its resources. NOAA's scientific credibility was dissipating at a rate far faster than BP's oil.
It did not help matters at all when the agency sought to put its mark on those issues that were really the purview of the National Marine Fisheries Service -- the nation's fishery bureau -- and not NOAA itself, which is supposed to be the nation's ocean and atmospheric science agency. Under the previous Administration, NOAA had plastered its name all over NMFS -- dubbing it "NOAA Fisheries" -- along with the rest of its line agencies (e.g., "NOAA Sea Grant," etc.), as if it were a NASCAR sponsor, instead of a serious science entity. Now, it was putting its face, along with its name, all over fisheries and so besmirching, in the eyes of many, its science credibility as the oil marred the beaches of Louisiana.
Now move forward to about September or early October of 2010, and one can imagine a kind of collective "Oh S__t!" in the agency as it was realizing it was supposed to have a policy paper out on its highly touted cure-all for the nation's fisheries called "catch shares."
True, NMFS blew off Congress' mandate in the 1996 Magnuson-Stevens Act (MSA) reauthorization when it was directed to develop guidelines for the application of individual fishing quota (IFQ) programs, and it approved the Pacific Council's groundfish "rationalization" plan that ignored Congress's language in the 2006 reauthorization to provide for, and allocate quota to, community fishing associations. However, NOAA had promised the catch shares policy, which was in fact the only arrow it appeared to have in its quiver for addressing fishery management, and which it used with some success to fend-off criticism from the New England delegation. NOAA/NMFS just could not blow this one off too.
So, on the 4th of November, 2010, the long-awaited and much delayed "catch share" policy was released. Reading the 21-page document, we were left with the impression that this new policy paper was, in fact, hurriedly done in order to get something out in light of the crises at hand, and not a serious, deliberative policy piece. That's because there's little in the way of actual policy in it. It is hoped this was not a product of a long deliberative process within the agency; if it were, it'd reflect poorly on agency competency. Whatever committee put it together either failed to agree on just about every element of catch shares and/or was clueless in how to craft a policy document.
Other than platitudes about catch shares "helping to stop overfishing" and "ending the race to fish," etc., (it fails to mention other management measures that can also achieve those same objectives) it's hard to find any real policy in the document. Other than stating NOAA's encouragement -- more of a mandate -- for regional fishery councils to consider catch share programs as part of fishery management plans, and pledging agency support (both financial and personnel) for developing catch share programs, there really is no policy there unless one reads between the lines. The short document is more of a discussion paper, with little depth or substance.
To its credit, the "policy" paper does at least define the three forms of catch shares -- individual fishing quotas, sectors, and community fishing associations (CFAs). The latter is changed in the paper from the language in the MSA and called "fishing communities." It also provides some other useful definitions -- all helpful at the outset in developing policy. But that's about it.
The "policy" paper is essentially mush. If mush were a Chinese meal, this would be it, because one is certainly left with an empty feeling afterwards. It's like 1984 all over again, with Walter Mondale asking "where's the beef?"
Policy is that which is found between the "thou shall" and "thou shall not" of the law. It is intended to provide direction and guidance. Unfortunately, there is little of that in the NOAA paper. It is little more than the agency proclaiming its support for catch share systems, however defined (excepting for individual recreational anglers) stating it will provide those systems support (which may mean no support for other management systems, much less collaborative fishery research).
There is no direction on what it plans to achieve from implementation of catch share programs, nothing on where such systems may be appropriate or inappropriate, or how they are to be decided upon (e.g., referendum). Nor is there any guidance on who can hold quota (other than admonishing the councils to keep a good public record, which is more for litigation defense than best serving the fishery), how quota may be transferred or what is to be considered in the five year review of such programs ordered by Congress.
To craft a policy for a system of management over a public trust resource (which fish are), NOAA needed to begin with how this publicly owned resource would be used to the greatest benefit of the nation. This would likely mean, within the biological constraints of the resource and ecosystem needs, explicit direction to provide for the greatest level of: (1) food production; (2) employment (which could include both number and diversity of vessels); (3) recreational opportunity, where applicable, and; (4) sustaining fishery-dependent communities. None of this is in the new "policy." The NOAA policy document is silent on each of these key points.
With regard to protecting the public interest in its resources, which is more than just protecting the resource itself, NOAA has adopted a kind of Pontius Pilate-style of leadership, in essence telling the screaming mob "if you want a crucifixion, Rome will supply the cross." Failure to direct the policy for the protection of the public's interest in its resource leads, as we have seen in most all other IFQ systems, to the fish ending up as de facto private property, ultimately owned or controlled by a few large entities. This has been the case with the Mid-Atlantic surf clam fishery, this has been the case in New Zealand, this is the case in Canada.
NOAA's failure to protect the public's interest in this public resource undermines the guidance necessary to fairly determine critical elements of any quota program such as caps on quota holding/control, limits on who may hold quota, and even preferences for community fishing associations. NOAA's abdication of leadership in protecting this public resource essentially paves the way for a massive privatization and the conversion of the public's fishery resource into the private hands of the few. It allows, even encourages, economic cannibalism.
Who is entitled to hold quota is critical to any form of catch share program. With the exception of parts of the North Pacific's halibut and sablefish IFQ program, restrictions on who may hold quota are virtually non-existent in most all other catch share programs.
What this means is that while fishermen boat owners who have participated in a fishery (or fishing vessel permit holders anyway) most likely will receive initial quota shares, failure to restrict who may hold quota thereafter leads to wealthier interests outside the fishing community -- such as large processors, speculators, even Wall Street hedge fund managers -- buying up quota or otherwise controlling large amounts of it. This then relegates real working fishermen -- certainly future generations of fishermen -- to becoming seafaring sharecroppers. It further leads to massive: (1) consolidation; (2) reduced local participation and employment in a fishery; (3) reduced community access to fish stocks in their own adjacent waters: (4) concentration of control of the fishery into fewer and fewer hands, and; (5) removal of capital from the industry (i.e., that capital is going instead to third parties, such as bankers or speculators) that would otherwise be circulated among fishermen and within their communities.
Restricting the holding of quota in IFQ systems to those on-board actively engaged in catching or supporting the harvest (e.g., cooks, engineers), and then strictly enforcing that restriction, will reduce the potential occurrence of these consolidation and capital flight problems. But NOAA's policy paper includes none of that.
NOAA's new policy also fails to consider the implications of quota ownership by corporations and the increasing control of many U.S-based corporations by foreign nationals. Food is essential for national security. Measures need to be put in place in any catch share policy to assure that U.S. food resources remain under U.S. control. This is a particular problem with individual catch share programs. Unless there are provisions limiting quota holding to those people actually on-board fishing, or at least to natural persons (corporations are sometimes defined as legal persons, but are not "natural persons") then any corporation holding quota could end up under foreign ownership.
Unfortunately, attempts to restrict the holding of fish quotas to corporations owned only by U.S. citizens could run afoul of various bilateral trade agreements or the WTO. Restricting who may hold quota to those people (i.e., "natural persons") who are actually fishing on-board the vessel is thus the most effective way of assuring that fisheries in a catch share IFQ program do not fall into foreign ownership.
The holding of quota by sectors or community fishing associations resolves, in a way, the problems associated with the holding of individual fishing quotas. But here, too, some genuine policy guidance, not silence or idle discussion, is needed but missing. For example, one potential problem with sectors or community fishing associations having quota is where they hold quota in excess of the needs of their sector or community and then begin on a permanent basis leasing that quota out to individuals or other sectors or communities.
Sectors or community fishing associations holding quota is something that should be promoted to gain the greatest public benefit from a fishery, but that quota held by these entities has to be in trust for the members of its sector or community, not for the purpose of profiting from leasing it to others outside that sector or community. Ideally the policy should direct some initial allocation of quota to sectors and/or community fishing associations. However, policy guidance is also needed on how such quota is to be held and used by any sector or community fishing association (CFA).
Finally, the issue of new entrants -- the next generation of fishing men and women who constitute our future -- gets some discussion, but again there is nothing specific in NOAA's paper to provide for them. Restricting quota holding to those on-board engaged in fishing, or with sectors or CFAs, would help to keep the price of quota down and make it easier for the next generation to enter the fisheries. Without such restrictions on quota holding, buying into quota will be much more expensive, leaving the next generation to become highly leveraged in order to enter the fishery -- at that point forget about any stewardship -- or, more likely they will be fishing quota held by a third party, forced to share their catch receipts with a non-fishing entity.
The NOAA "policy" paper provides a brief discussion on total amount of quota that entities may hold or control, but there is no guidance thereafter on what is the appropriate amount of quota to be held by a single entity under an IFQ program or by a sector or CFA. The caps on quota between individual entities versus sectors and communities will need to be different, of course, since the latter two are holding quota on behalf of a whole group, but none of this is dealt with by NOAA in its guidance. Ideally, the policy should direct that quota be allocated among individuals, sectors, or CFAs as widely as possible -- both in the initial allocation and on a permanent basis thereafter -- while meeting reasonable economic expectations of quota holders.
NOAA's answer to concerns over how much quota any one entity can hold/control is to leave it up to the enforcement of U.S. anti-trust laws. Here again the agency either plays Pontius Pilate or simply abdicates management responsibility. A good policy would direct that the amount of quota held by an entity or entities never be allowed to reach the level where the Justice Department has to step in. It is way too easy to get around these anti-trust laws. At least one such quota program -- the "crab ratz" BSAI crab fishery program in Alaska -- would clearly have been illegal under U.S. anti-trust laws but thanks to heavy lobbying pressure from processors it was given a special Congressional exemption so that 90 percent of that quota could be owned by processors.
A policy on quota caps requires guidance on enforcement of those caps. Anyone familiar with western water law and the gaming that occurred by agribusiness to get around acreage limitations (e.g., 160 acres for family farms) to secure low-cost, federally-subsidized water knows the problem. The Bureau of Reclamation looked the other way for decades and refused to enforce the acreage limits for receiving federally-developed water -- a major policy lapse which is partially responsible today for the water crisis that affects some important salmon runs.
NOAA/NMFS and the regional fishery councils will need to have an effective mechanism in place to ensure not just that quota is widely held, but that caps to provide for that wide distribution are strictly enforced. NOAA provides no such guidance in its "policy" paper.
The Magnuson-Stevens Act (MSA) makes clear, and the NOAA "policy" paper acknowledges, that catch shares are to be treated as a privilege, and not as private property. The danger, however, is that despite the disclaimer about fishing quotas not being a private property right, the privilege is treated as if it were legally private property, so it can become de facto exactly that. Again, one only needs to look at what has happened in the west with the long-term federal water contracts and actions for damages in the Court of Claims when such contracts were shorted to provide more water for fish. Courts have already upheld treating personal fishery quotas as the legal equivalent of private property for purposes of divorce, probate and as collateral on loans.
The failure to explicitly prohibit the use of fish quota as collateral for a loan is one example of how the privilege to hold fishing quota is already being used as private property. If the privilege is treated as private property for this purpose, in spite of disclaimers otherwise, it is likely to be held so by other courts for many other uses, including the Federal Court of Claims, as private property. As they say, "if it looks like a duck, walks like a duck and quacks like a duck, it probably is a duck." This is what has already happened in Canada.
The catch share policy thus needs to include a clear directive that fish are a public resource and fish quotas confer on the holder a temporary and limited privilege only to harvest a fixed amount of fish, not a property right. In the 5-year review called for by the MSA of catch share programs, it is essential that how the privilege is being used is carefully scrutinized, and that the public's over-riding interest in the fishery is being protected.
Moreover, strictly maintaining the personal privilege aspect of fish quotas will help to protect individual fishing men and women from large processors or other outside forces usurping those quotas or creating and speculating in these new "quota markets."
Community Fishing Associations or CFAs are only briefly discussed in NOAA's paper and are defined, as mentioned above, by the term "fishing communities." There is also mention of the fact that these entities, created as part of the LAPPs language in the 2006 MSA reauthorization, are a vehicle to help maintain a fishing port's access to the fish from its adjacent waters, as well as preventing the "stranding of assets" of processors, without having to issue processor quotas (such as the quotas issued to processors in the BSAI crab fishery). Beyond that discussion, however, there is no policy direction or guidance in this document on the subject.
The establishment of CFAs is critical in many instances to assure that fishing communities can maintain their access to their local fish stocks, where IFQ systems alone could result in quotas becoming centralized in a few "super" ports, removing from menus all the locally-caught fish and draining more capital out of these smaller coastal communities.
If the public's interests in its fisheries are to be protected, it makes sense that NOAA/NMFS should focus on actively encouraging and supporting development of CFAs, as opposed to their amorphous generic support now of "catch shares." At the very least a national policy on catch shares should include direction encouraging establishment of CFAs, including an initial allocation of quota to CFAs, and guidance on what these novel new entities should entail and how they should be managed.
NOAA's "policy" paper does caution that catch shares are not a "panacea," although its paper largely treats them as such. It also states that catch shares are not for every fishery. Okay, but what types of fisheries are appropriate for catch share programs? What types of fisheries are inappropriate? NOAA says it doesn't feel individual anglers should be in catch share programs, although it does mention some instances where permits for specific fish or game are subject to lotteries. So what is the policy here?
Furthermore, NOAA does not discuss in its paper how the decision is to be made on whether or not to adopt a catch share program. Is this a decision that is to be made solely by a regional fishery council, whether or not there is support from stakeholders, as happened with the Pacific Council's new groundfish trawl "rationalization" plan? Or is some form of plebiscite or referendum to be held among the affected fishermen or whether or not to go ahead with a catch share program? Ideally, adoption of any catch share program should be subject to some vote of approval by the affected parties, but NOAA's policy guidance just avoids the issue.
Part of the push for catch shares, according to NOAA, is to promote better conservation. This reliance is misplaced. Catch shares are merely a tool for allocating the catch, but by themselves do nothing for fish conservation. Preventing overfishing is accomplished by scientifically setting the level of total allowable catch (TAC), not through the allocation of that catch. In fact, there are several instances of catch share programs around the globe where there is still overfishing.
Nor is better stewardship necessarily a product of such catch share systems. There are plenty of examples of good fishermen stewardship -- commercial, recreational and tribal -- around the world where no catch share program is in place. Indeed, the only reason there are still salmon in California is due to the stewardship and tenacity of that state's fishermen. Catch shares may actually thwart a stewardship ethic, where fishermen become heavily leveraged (witness what happened to northern California's Pacific Lumber Company following the MAXXAM take-over) or are forced to fish under someone else's quota.
What this all means is that a catch share policy cannot assume that better conservation is inherent in such a system; it requires specific policy language to give it that direction. A national catch share policy should include language directing that nothing in a catch share program will thwart the conservation of fish stocks or cause harm to the ecosystem and, furthermore, should promote conservation, ecosystem protection and sustainable use of the resource. NOAA fails to do that in its new policy.
Following NOAA's 4 November, 2010, release of its catch share "policy" paper, there was the announcement from the National Fish & Wildlife Foundation (NFWF) on the creation of its "Fisheries Innovation Fund," a "public-private partnership that will help those involved in catch share programs design and implement these practices." The announcement of the fund, which is offering $2.2 million in grants in its first year, was coordinated with the release of NOAA's paper.
"The Fisheries Innovation Fund is looking for smart, novel ideas about how to use catch shares to bolster fishing communities while maintaining sustainable fisheries," according to NFWF's Jeff Trandahl. "We are looking for applicants who can draw from their on-the-ground knowledge and propose creative approaches to making catch shares work best for their communities."
Sounds good. The trouble is, shouldn't NOAA's "policy" have already provided direction and guidance to ensure catch shares work best for their communities? As it is, a lot of communities will be dealt out of fishing in the future under catch shares because of NOAA's failure to develop a comprehensive policy on the use of this management tool prior to applying it.
The NFWF grant proposal also raised a question about who would be selecting among the applicants and whether grants would be limited solely to those predisposed to advocating for such programs. This question arises since the funding for the NFWF program did not come from Congress, but from two major foundations -- the Gordon & Betty Moore Foundation (Intel) and the Walton Foundation (Wal-Mart). The former has been actively funding market-based solutions, such as catch shares, and is a major funder of EDF.
At least one of these foundations, and several others supporting other similar kinds of fisheries grants, have been aggressively pursuing, through such grants program, a neo-liberal agenda promoting the use of markets and privatization for resolving all sorts of conservation and resource issue conflicts. Market-based solutions do work in some instances, but in a lot of others they do not, and can even be harmful -- a fact that those in charge of such market-based, ideology-driven grant programs all too often ignore.
It's the brave new world of fisheries.
If the nation is to embark on the use of catch shares as one of its fishery management tools, than a comprehensive policy is required. That is not found in NOAA's paper of 4 November, 2010.
We'd urge NOAA/NMFS to revisit this "policy" statement and develop it much further toward a thorough and comprehensive policy to ensure that the various forms of catch shares are used where appropriate and under such direction and guidelines to make sure that the fishery resources and the public's interest in its fisheries are protected. That public interest includes food, jobs, recreation as well as viable and vibrant fishing communities.
What is being called a catch share "policy" now is a wimp-out. Being acquainted with many of the individuals in NOAA/NMFS, we know they can do better. We hope what was released as policy was the result of the other distractions the agency has faced from New England to the Gulf in the last 18 months, and not the final word.
Unlike some in the Congress, we're interested in the President and his Administration succeeding, including NOAA and NMFS. But NOAA/NMFS can't succeed if it tries foisting off its 4 November paper as any kind of meaningful policy. Whether or not catch shares are a good idea we'll let you decide, but if they are to work at all they require a comprehensive policy that NOAA has so far failed to deliver.
The main elements, at least, of a catch share policy we've outlined above. You may have some additional thoughts. Now is the time for NOAA to go back to the drawing board and craft the kind of policy that's needed, if catch shares are to be acceptable and successful.
Larry Collins is a San Francisco-based commercial fisherman and President of the Crab Boat Owners Association and Vice-president of the Pacific Coast Federation of Fishermen's Associations. E-Mail: lcollins@crabboatowners.com
Zeke Grader, also an Attorney, has been around the fish docks for nearly 60 years, the last 36 as Executive Director of the Pacific Coast Federation of Fishermen's Associations, whose main office is at P.O. Box 29370, San Francisco, CA 94129, (415)561-5080 x224; E-mail: zgrader@ifrfish.org.
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