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As Norwegians were celebrating their “Constitution Day” on the 17th of May this past month, the U.S. House of Representatives’ Resources Committee was “marking-up” its bill to reauthorize the Magnuson-Stevens Act. While our Nordic brethren were commemorating their independence with pickled herring, salt cod and smoked salmon, a pall was cast over the future independence of American fishermen in the bill sent out of Committee that Syttende Mai.
What was troubling with the House bill, HR 5018, the “American Fisheries Management & Marine Life Enhancement Act” was not so much what was in it – although it includes some troublesome language – but what was missing. In fairness to the House, the Senate version, S. 2012, the “Magnuson-Stevens Fishery Conservation & Management Reauthorization Act,” which passed out of the Senate Commerce Committee early this year, isn’t much better (see the December 2005 Fishermen’s News, “Finally, An MSA Reauthorization Bill!” at: www.pcffa.org/fn-dec05.htm).
These two bills could come up on the floors of their respective Congressional chambers within the month. That means there’s not much time to develop and work amendments to try and fix the problems outlined below.
Specifically, what is missing in the two bills are strong standards to protect fishermen against the imposition of quota systems that would cause, or lead to, the disenfranchisement of the fishing privilege held by fishermen in a fishery. The imposition of fishing quotas is already leading to some of the most radical changes in the 400 year history of the American fishing industry – and these changes are not for the better.
Unless adequate language is put in place in our nation’s primary fishery law, most fishermen may soon find themselves, as some have already, little more than seafaring sharecroppers with little say or control over their fishery. Worse, fishermen would find themselves aced out of fishing altogether, like hundreds of captains and crew in the Bering Sea/Aleutian Island (BSAI) crab fishery (see the November 2005, Fishermen’s News article, “Crab – What A Mess! Changes in Crab Management Will Radically Affect Fishery” at: www.pcffa.org/fn-nov05.htm).
In past reauthorizations, the lack of fishermen’s protections because of the lack of national standards for individual fishing quota systems was not such a big deal, because the systems weren’t actively being promoted. Indeed, in the last reauthorization, in 1996, Congress placed a moratorium on the development of any new IFQ systems and directed the National Marine Fisheries Service (NMFS) to develop standards.
Instead of developing the standards called for by Congress, however, NMFS thumbed its nose at the law and has since redoubled its effort to impose quota systems, with no fishermen’s protections, now that the moratorium has expired. In fact, fishery quota management and open ocean aquaculture were the two main elements of the President’s featherweight “Ocean Action Plan” released in December 2004.
Making matters worse are the efforts afoot to assign quotas directly to processors. We have already witnessed this in the BSAI crab fishery, with its so-called “two-pie” system, and there is a real push now by some large processors to get harvesting quota as well as processing quota (IPQs or individual processor quota) in the Pacific and North Pacific groundfish trawl fisheries. Senator Gordon Smith (R-OR) even has a bill in the Congress, S.1549, to force fishermen to sell to certain processors in the Pacific Whiting fishery.
Even without processors being given their own quota, they have been able to buy up fishermen’s quotas in many IFQ systems, effectively controlling who a fisherman sells to and the price paid for the fish. When processors or other shoreside interests begin owning quota, fishermen are relegated to the role of seafaring sharecroppers.
With the Administration anxious to privatize many of the nation’s publicly held resources and, apparently, to disenfranchise working fishermen, NMFS is apparently looking to deflect attention from its own mismanagement of many fisheries through promotion of IFQs and fish farms. Even some of the regional councils are now pushing individual quota management of our fisheries.
It is time to ensure there are protections in place for working fishing men and women.
Congressional LAPP Dancing. Both the House and Senate bills classify fishery quota programs under the broad term of “Limited Access Privilege Programs” to include not just individual quota systems but also those for communities and regional associations. While we have to admit that some of the concepts such as those for allocation of quota for community fishery or “regional fishery associations” are intriguing, the language about consideration of protection against excessive quota ownership, providing for small boat fisheries, historic dependence on the fisheries, etc., is ultimately mush. The bills both simply dance around or avoid altogether any firm protection or standard. There is nothing hard there to hang your future on.
What language there is in these two bills affords just too much discretion to the regional fishery management councils, which in the most recently developed IFQ program in the U.S. (the Bering Sea/Aleutian Islands crab fishery) turned into a pig’s trough for the processors, represented by their lobbyist on the council, as they acquired the lion’s share of the wealth of that fishery and pushed local fishermen out. There is also concern among some in the Alaska fishing community that the language in the two bills authorizing “regional fishery associations” to be able to hold quota is nothing more than a legal foot in the door for processor quotas. The bills also provide an exemption from any standards for rationalization programs “under development.”
Hard Standards, Not Just Hard TACs. Much of the debate about this reauthorization of Magnuson-Stevens, particularly in New England, has been about the imposition of hard TACs (Total Allocable Catch) as a means of dealing with the overfishing of groundfish.
Whether or not there will be an amendment offered on the Senate floor to finally mandate hard TACs for overfished fisheries will depend on what, if any, compromise language is developed in New England that will fly with that region’s Congressional delegation. What should be of concern to the rest of the nation’s fishermen, however, is the lack of strong, hard standards for any LAPPs, particularly IFQ systems. Even a cursory reading of the LAPP language in the two bills finds it limp. A more careful reading reveals the firmness of mush.
These Aren’t Your Mother’s Arms. Some may say, we’ll leave it to the regional councils or NMFS to develop guidelines for the fisheries. Well, sorry Charlie, but that’s the trouble. Neither NMFS nor the council’s have much of a track record to date. Just look at the Mid-Atlantic surf clam fishery, or the BSAI crab fishery and tell us how well individual fishermen made out in those fights. Sure a few made it big, coming off like Russia’s oligarchs with a fat share of the resource, but the vast majority were serious losers.
The one IFQ system to date that has had some success – the North Pacific halibut and sablefish IFQ system -- is the exception to the rule so far; it’s not the rule. Let’s be clear, NMFS and the regional councils are not your mother and they don’t care what’s good for you, only what is easy, what is expedient for them.
At the beginning we mentioned Norway’s Constitution Day. Well, consider the U.S. Constitution for a minute. The Founding Fathers didn’t settle for vague guidelines being set out in the first 10 amendments – our Bill of Rights. They said there shall be freedom of speech, freedom of assembly, freedom of religion, freedom from unreasonable search and seizure. Our nation’s founders did not put out some unenforceable guidelines for local magistrates asking that we consider a person’s history of speaking out or whether they may be gregarious and associate with others or whether they really wanted or expected to be secure in their homes from government searches. Those rights were conferred on us clearly and succinctly. Now we need to assure fishermen’s rights are explicitly spelled out as well. That is the only way to protect our fishing privilege.
At the very least we had expected the House to incorporate the IFQ standards that had been set forth in a bill by Congressman Tom Allen (D-ME) that was developed with input from New England fishermen and some fishing groups here on the West Coast. That bill, HR 3278, the “Fishing Quota Standards Act of 2005,” provides a comprehensive set of standards to ensure the continued viability of family fishing operations along our nation’s coasts. It was co-authored by a number of West Coast Congressional members but did not even make it into the House mark-up of HR 5018.
What’s Needed and Why. While some of us have grave doubts about any IFQ system working in the interests of rank and file fishermen over the long term, here is our suggested language (italicized) for “fishermen’s rights” in a set of national standards to apply to any fishery where quota or other fishing privilege is individually assigned. For clarity purposes here, we use both the term LAPP and fishery quota system to ensure that both are covered, although in final legislative language this may be deemed redundant. The proposed language below would work with most of the language currently in the two MSA reauthorization bills, the difference being that this language establishes firm standards, while the current Congressional bills only provide vague and unenforceable guidance.
“PURPOSE OF THE PROGRAM. A limited access privilege program or system to assign individual quota to a fishery under a federal fishery management shall be established solely for the purpose of improving or fostering the conservation of fish stocks, and improving safety at sea for fishing operations and/or improving the quality of fish harvested or the value derived from such catch.”
This language limits the imposition of limited access privilege programs to those that are for conservation purposes and will either improve safety at sea or the value/quality of the fish harvested or both. This is intended to curtail those who would seek to establish a LAPP or IFQ system for the sole purpose of staking a claim to a share of the fishery – the wannabe “fishery oligarchs.”
“RIGHT TO VOTE. No limited access privilege program or individual quota system shall be approved by a Regional Fishery Management Council or the Secretary unless approved in a referendum by a majority of not less than 60 percent of all persons who participated on board a vessel in the catch of fish during at least three of the previous five years, in that fishery for which the program or system is being established, and who currently hold a commercial fishing license and are engaged in commercial fishing.”
The current language in the House and Senate bills allow fishermen to petition for the creation of a limited access privilege program, but after that they have no say. The bills, however, allow New England fishermen to hold a referendum to approve any LAPP for their fishery, and we should expect no less for the rest of the country. The decision affecting the fundamental way fishing is conducted cannot be left up to the councils or NMFS -- fishermen must have the right to vote on their futures.
“RIGHT TO FISHING PRIVILEGE. A limited access privilege or any fishery quota for any fishery under a federal fishery management shall only be issued to, owned and used by, an individual holding a commercial fishing license and who is engaged on board a fishing vessel in the catch of fish or operation of that vessel. Any person owning a vessel that is eligible for a limited access privilege at the outset of a limited access privilege program or any quota system shall be eligible to hold quota only for the period that individual owns the vessel and any transfer of quota by that individual shall only be to an individual or individuals who hold commercial fishing licenses and are engaged on board a fishing vessel in the catch of fish or operation of that vessel. A Regional Fishery Management Council or the Secretary may establish provisions to allow for temporary use of the limited access privilege or quota, for a period not to exceed one year, by a non-privilege holding or non-quota holding fisherman in the event of illness, disability or the death of a limited access privilege or quota holder.”
This is our suggested language to prevent processor quotas as well as processors trying to buy up quota assigned to fishermen or fishing vessels. It provides for cooks, engineers and captain holding quotas as well as fishermen on board larger vessels, but limits the LAPP or quota to those on board. This would eliminate “armchair fishermen,” i.e., those who are awarded quota or otherwise hold quota and then sit at home renting it out, exploiting the labor of others. This would also eliminate leasing quota, which is one of the flaws in the North Pacific halibut and sablefish IFQ system. Limiting ownership of the privilege or quota to working fishermen would also help keep the price of quota down (it is the fishery after all, not a commodity exchange for permits that we’re concerned with) for new entrants into the fishery.
“RIGHT TO PROTECTION FROM MONOPOLISITC PRACTICES. No individual or entity shall own or control more than 2.5% of the total amount of LAPP or quota for any one fishery, unless at the outset of the LAPP or the quota system there were less than 20 participants in that fishery in which case, total ownership or control shall not exceed 15% of the total LAPP or fishery quota. No cooperative or any business consortium of limited access privilege or quota holders shall jointly own or control more than 20% or less of the total LAPP or fishing quota for any one fishery, nor in the event at the outset of the LAPP or quota system where there were 20 or fewer participants in the fishery, no cooperative or any business consortium of limited access privilege or quota holders shall jointly own or control more than 35% of the total LAPP or quota system.”
This language explicitly stating how much any one person or entity can own or control of a fishery is needed simply because the government cannot be trusted to enforce anti-trust or anti-monopolistic practices in the fishery. This language makes clear what is allowed and will not be allowed in the fishery. Both bills recognize the dangers of monopolistic practices under LAPP regimes, but provide no teeth to either prevent the practice or remedy it.
“RIGHT OF REVIEW AND TERMINATION. All limited access privilege programs and any system of individual fishery quotas shall be reviewed at the end of five years of the establishment or renewal of such program or system to determine whether they have or are achieving the conservation and other purposes set forth as the reason for establishing such LAPPs or quotas and, additionally, whether the program or system is protective of fishing communities and employment by residents of fishing communities in fishing operations at sea and fish processing, distribution or sales onshore. A limited access privilege program or any system of individual fishery quotas shall not exceed seven years in duration, however the program or system may be renewed, following the five-year review providing such review finds the program or system in substantial compliance with the purposes it was established for. The LAPP or fishery quota held by an individual at the end of the term, shall be renewed for that individual, if the program or system is renewed, and the individual has been in compliance with the terms of their individual LAPP or fishery quota.”
This language is needed for two reasons. First, long-term permits, such as federal water contracts (25 or 40 years) or those granted in perpetuity, despite all the disclaimer language, do in fact take on the characteristics of a kind of property right, and are difficult to later condition or change with out a “takings” fight. By way of example, witness the Tulare Lake water contractors case of a few years ago, where despite all the disclaimers in their contracts the growers were successful in a damage claim when the government held up a certain amount of water (which under the terms of the contracts it had every right to do) to protect Endangered Species Act-listed salmon. Second, requiring renewal every five or seven years is a good way to assure the programs are in fact carried out for the purposes they were intended and do not run amok. Moreover, as is the case with limiting LAPP or quota ownership to fishermen, it helps to keep the price down, thus making entry more affordable for young fishermen.
While some of us remain skeptical about the future of fishermen under IFQ systems or the LAPP language in the two MSA reauthorization bills, the standards, or “fishermen’s rights,” we have set out above are the minimum needed for our fleet. We are willing to work with others tinkering with the language to gain greater acceptance, but the basic thrust has to remain intact.
A recent fact finding trip to New Zealand looked at that nation’s IFQ system and documented the problems presented by IFQ systems. There the fishery has been completely consolidated, with just seven companies now controlling the industry from fishing to sales. Traditional fishermen are now without jobs but the few who did amass quota have done quite well for themselves, as the Porsche dealership on the bottom floor of the Rock Lobster Fishery Council building can attest.
But if you think you’re going to become one of a handful of “fishery oligarchs” at the expense of other fishermen by not having any standards in place, don’t count on it. You’re chances may be better counting on the lottery for your retirement account. Besides, for most fishermen it wasn’t the money that attracted them to fishing – most could do better or did better with a shore based job – but are in if for the freedom, the lifestyle. And that lifestyle is about to be destroyed unless we get control over IFQ systems or Congress’s proposed LAPPs.
Finally, New Zealand still has a problem with overfishing of many of its stocks, so IFQs didn’t even do the job for conservation. They didn’t help protect fishing jobs either (the argument processors use to try to get quotas), since much of the fishing has now been outsourced to labor forces from Third World economies. Worse, Ukrainian fishermen – now on strike -can’t even get a decent wage fishing in New Zealand by Ukraine standards, never mind New Zealand’s standard of living. Furthermore, the recent spate of deadly accidents in New Zealand’s fishing fleet indicate that fishing has not gotten any safer either. Are we going to let our fisheries go the way of New Zealand and other countries and destroy the fisheries we love -- all for a handful of wannabe oligarchs?
The Bills’ Other MIAs. The lack of strong, enforceable standards for IFQ, or LAPP as they’re being called, systems is not the only thing lacking in HR 5018. There are four other issues that require attention in this MSA reauthorization round, or will require attention soon.
Marine Sanctuaries. HR 5018 did include language clarifying the regulation of fishing activities within National Marine Sanctuary waters. That language, unfortunately, was stricken by an amendment offered in mark-up by Jim Saxton (R-NJ). There is a lot of confusion in the Congress about the issue, probably because most of the sanctuary waters are off California and there were only two hearings – one in New Bedford and one in DC -- prior to mark-up. Who manages these fisheries, whether the Regional Fishery Councils or the National Marine Sanctuaries, has to be clarified to ensure those with the expertise and wherewithal are calling the shots, not the dilettantes. This should be of concern for the conservation community if they’re ever going to get support from fishermen for an expansion north of the Gulf of the Farallones National Marine Sanctuary (which has an excellent record working with fishermen), or any serious consideration given an Oregon Coast National Marine Sanctuary.
Funding. The lack of sufficient funds for fishery programs, particularly research, has long plagued our nation’s fisheries. It’s going to get worse in the future as Congress has to come to grips with a record federal budget deficit and the ongoing costs of the Iraq war and tax cuts for the wealthy. There just aren’t going to be discretionary moneys available for agencies such as NOAA. (See the August 2003 issue of Fishermen’s News, “Planning and Paying for Future Fisheries Research,” at: http://www.pcffa.org/fn-aug03.htm).
The only new funding in HR 5018 is a 3 percent fee on all fish caught under LAPPs, with a one percent transfer fee. Other than that, there’s no money (and this fee puts U.S. fishermen at a further competitive disadvantage with imports). At least one House bill, H.R. 1431, the “Fisheries Science & Management Enhancement Act” had language to both establish fishery cooperative research programs and pay for that fishery research by redirecting existing Saltonstall-Kennedy Act (S-K) funds, but that language was not included either in the Committee mark-up of HR. 5018. The Senate bill, thanks to Senator Barbara Boxer (D-CA) does at least have the beginnings of a fishery trust fund, as recommended by the two oceans commissions, but that needs expansion to generate the type of revenues that will be needed for fishery programs, especially cooperative research and new gear development.
Council Authority. If regional fishery management councils are ever to be able to address the increasing number of non-fishing impacts on fish stocks, they will need some additional authority. The problem has been abundantly clear in the salmon fishery since 1977, with the council’s sole authority being to restrict or close fisheries as salmon stocks plummeted due to habitat loss, dam operations and massive water diversions.
The regional fishery councils don’t need to have authority over non-fishing activities, but they at least should have the same type of consultative authority over federal activities or federally-permitted authorities NMFS and the U.S. Fish & Wildlife Service are provided under the Endangered Species Act. Just don’t look for it in this Congress that’s doing its damndest to gut (euphemistically called “improving”) the ESA. This Congress is simply not going to grant any type of ESA-type consultative authority to help protect non ESA-listed and healthy fish stocks from non-fishing activities.
Conflicts of Interest. Finally, some language is needed to beef-up the conflict of interest provisions governing council members. The insertion of strong language is needed, not to prevent fishermen from serving or voting on the councils, but to protect fishermen from others who see their council role as to get as much for themselves, or those they represent, as possible at the expense of either other fishermen, the resource, or both.
Conclusion. There you have our list of what’s wrong, including what’s missing in the Magnuson-Stevens Act reauthorization bills. The most important missing element right now is the failure to include strong enforceable standards for individual fishing quota, or LAPP, systems.
Action is expected soon on both the floor of the Senate and the House. If you care about your fishery, you’ll weigh in now with some strong comments – letters, calls or e-mails -- to your Congressional representatives. Following the Resources Committee’s Syttende Mai debacle it may be time for a little Viking rage from fishermen, making a bigger stink than lutefisk over the law’s failure to protect fishermen.
Larry Collins is a commercial fisherman from San Francisco and serves as Vice-president of his local organization, the Crab Boat Owners Association, and was recently elected Vice-president of the Pacific Coast Federation of Fishermen’s Associations.
Pietro Parravano is a commercial fisherman from Half Moon Bay, CA and President of the Institute for Fisheries Resources and a member of the Pew Oceans Commission.
Zeke Grader is an Attorney and Executive Director of the Pacific Coast Federation of Fishermen’s Associations. PCFFA can be reached at:
Southwest Office at PO Box 29370, San Francisco, CA 94129-0370, (415) 561-5080, ZGrader@ifrfish.org
Northwest Office at PO Box 11170, Eugene, OR 97440-3370, (541) 689-2000, fish1ifr@aol.com.
PCFFA’s web site is at: www.pcffa.org.
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