THE PACIFIC COAST FEDERATION
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From Fishermen's News of May, 2005
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Home Page Over Easter week in Washington, DC, the National Marine Fisheries Service (NMFS) and the eight regional fishery councils, along with the three interstate fishery commissions, held their second conclave on managing the nation’s fisheries. The purpose was to take stock of federal fishery management with a “focus on the future.” However, by the end of the three day gathering, some of us invited to attend -- but barred from participating -- were left convinced that our federal fishery managers lack any real focus on the future. Denying past mismanagement and ignoring serious existing problems hardly instills confidence in their ability to manage our fisheries in the days ahead.
The event was organized by the North Pacific Fishery Management Council. Scheduling the event on Easter week meant few in attendance were dashing off for the Hill for meetings, since Congress was in recess and members, along with a lot of senior staff, were all gone. Alaska Senator Ted Stevens, who had been scheduled to give the opening address, had sense enough to get out of town while leaving a short video behind for attendees to view. What fishery staff was left in DC that week – largely Sea Grant fellows – were in attendance.
Unlike the first conclave, held in November 2003, “Managing Our Nation’s Fisheries II” did allow room for a few dissenting voices, but still had the self-congratulatory air of the original fishery “love fest.” Much like the Congressional major league baseball steroid abuse hearings the week before, there was the air of “leave us alone Congress,” “we’re taking care of the problem” and “we’re here to talk about the future, not the past.”
Now, at the outset here it should be understood that a few good recommendations came out of the final day of the conference (a summary of the Conference Findings and recommendations can be found at: www.pcffa.org/NMFSConferenceFindings.pdf). The only question is why weren’t many of those recommendations put in place a quarter century ago? The bigger problem, however, is with the issues that were ignored or those whose existence were simply denied. Fishermen’s News is generous with the space it provides this monthly column, but even that is not sufficient for a detailed critique of the conference. Instead, what is offered here are some of my own thoughts and observations, based on my 50 years around commercial fishing and about 30 of those in fishery politics. These opinions are not necessarily the official opinions of PCFFA or Fishermen’s News, but hopefully you will find in them food for thought.
The Executive Director of the New England Fishery Management Council, during the conference opening session, could well have taken a page out of Mark McGwire’s testimony to Congress from the previous week. Like the baseball great ducking questions on steroid use, New England’s Director said we were not there to talk about the past, but the future. Instead of talking about overfishing (which is still a real problem in New England according to one of the fishermen members of that council), the New England Director called on managers to focus on the issues of pollution, coastal development, etc, that he said were threatening fish stocks.
While he would certainly not get an argument from PCFFA, which has been working on these same issues for the past three decades, nor an argument from most other commercial fishing groups that pollution, habitat loss and coastal development are serious threats to fish stocks, the fact is that neither fishermen nor fishery managers have any credibility making these arguments unless their own house is in order. What New England’s Director apparently fails to understand is there had better not be any overfishing, or habitat damage caused by fishing, or bycatch problems from those in fisheries taking on pollution, loss of fish habitat and development issues. If there are fishing problems, conservation groups and the public will see these other issues as a red herring intended to divert attention away from fishing-caused problems. And polluters and developers will fully exploit it as a double standard.
As long as a council or fishery does have an overfishing problem, it will be difficult to take on the serious threats to fish stocks fishermen, as well as the two ocean commissions, have identified. Moreover it seems obvious that before we begin thinking about the future, it’s necessary to talk about the past and discuss the present. We should not dwell on the past, but we can’t ignore it either. Thus, despite what the New England Council or Mark McGwire may say, it is the past that provides us the lessons and it is from the present that we chart a course – knowing our point of departure. And that is exactly what was missing from much of the conference discussion.
Affable, accessible, there’s hardly a soul that doesn’t like NMFS Director ( NOAA Assistant Administrator for Fisheries) Dr. Bill Hogarth. His address at the outset of the conference, following that from New England, however, left many wondering whether he was oblivious to the problems confronting federal fisheries or just not wanting to confront the obvious truths. With his deep accent, he’s not always easy to understand, but there was no misunderstanding what he was not saying in his opening statement.
There was no mention whatsoever by Dr. Hogarth of the budget cuts his agency was facing due to the soaring federal deficit, nor any mention by him of trust funds or any other alternative funding sources for fishery management. The lauded (by the regional councils) U.S. Commission on Ocean Policy and scorned Pew Oceans Commission had both proposed trust funds for financing ocean and fishery management, but there was nary a word of it from the NMFS Director, much less any word on how NMFS planned to pay for current levels of fishery management or new programs being proposed. Funding, of course, is fundamental to conducting fishery research and stock assessments, as well as carrying out management and enforcement, but no one – not Dr. Hogarth, the organizers, nor the councils were uttering a peep about it.
It did not stop with what the good NMFS Director was not saying. While he touted the President’s Ocean Action Plan (http://ocean.ceq.gov/actionplan.pdf), nothing was said about the centerpiece of the Administration’s plan for the nation’s Exclusive Economic Zone (EEZ); that is legislation aimed at promoting and permitting offshore aquaculture (see the March 2005 Fishermen’s News, “Effectively Communicating Aquaculture’s Threat,” March, 2005, at: www.pcffa.org/fn-mar05.htm).
The fact that open ocean fish farms pose real threats to our country’s fisheries from pollution, spread of disease, predation, even increased pressure on wild stocks to produce the food for these feed lot fish, did not get a mention from Dr. Hogarth, nor did the council representatives bother to question him about it. He also failed to mention, and they failed to ask, why the Administration was proposing to exempt offshore aquaculture from the provisions of the Magnuson-Stevens Act and the purview of the regional councils. Meanwhile, Michael Rubino, the National Oceanic & Atmospheric Administration’s (NOAA) “Aquaculture Matrix Manager” (i.e., head of NMFS’ aquaculture program) was floating about the conference. Obviously someone in the agency understood the connection between fishery management and offshore aquaculture.
Making matters worse, there was no acknowledgement by Dr. Hogarth of the twin disasters now facing the west coast salmon fishery – both on the Columbia and the Klamath – in 2005. Fishermen are now faced with draconian fishing restrictions along the Pacific Coast this season as a direct result of past NMFS mismanagement. As FN readers know, the federal fishery agency failed to follow the recommendations of its own scientists (one later sought whistleblower status) and instead capitulated to the Bonneville Power Administration, the Bureau of Reclamation and the Administration by passing off Biological Opinions (BiOps) that failed to mandate sufficient flows in the Columbia in 2001 and the Klamath in 2002 needed for salmon survival. This year fishermen are paying a high price for NMFS’s folly, while the agency is proclaiming the disappearance of these fish as “a mystery.”
Likeable as Dr. Hogarth is, it was hard for some of us to be jovial about the NMFS Director’s lack of candor. In fairness, he may have been under orders from the Administration not to discuss funding or aquaculture or past mismanagement; we have no way of knowing. But the regional councils who were the organizers were under no such orders. Certainly they could have asked the questions even if they couldn’t get an answer. Instead they behaved as sycophants, never bothering to query where the money was coming from, what the hell NMFS or the Administration was thinking about with its aquaculture legislation, or whether the federal agency was going to take responsibility for its past mismanagement of fisheries such as Pacific salmon.
Throughout the conference and in the final recommendations there were calls for better science, paying honoraria to regional council Scientific & Statistical Committee (SSC) members, and moving toward ecosystem-based management. All of this, of course, is going to take additional dollars, yet, as mentioned above, no one talked about where the additional money would come from, much less funding for currently underfunded management programs.
The recommendations of the U.S. Commission on Ocean Policy, and even occasionally the Pew Oceans Commission, were mentioned various times throughout the conference. But no one wanted to talk about the trust fund concept recommended by both of those blue ribbon panels. USCOP had even recommended offshore oil revenues as a source of dollars for such a fund. However, there was no conference discussion about a financing source for a trust fund, or even a trust fund at all.
The conference should have provided an ideal venue for discussion of funding essential fishery programs, but the organizers simply ignored it. Funding is not a new issue that NMFS or the regional councils could not have discussed. In addition to the recommendations put forward by the two ocean commissions, a proposal for funding fishing programs was put forward in an August 2003 Fishermen’s News column, “Planning and Paying for Future Fisheries Research – Fish Stocks and Fishing Communities Depend on Good Data” (www.pcffa.org/fn-aug03.htm). Preliminary figures from Congressional research indicate a 5 percent fee on all fish and seafood sold in the U.S. would generate $6 billion annually; even at 2 percent, such a fee would generate more than $2 billion. Indeed, the Marine Fish Conservation Network, at PCFFA’s urging, has developed legislative language for just such a proposal.
Apparently, however, no one wanted to upset NOAA by talking about money or raising the issue with an Administration that has yet to come to grips with a record deficit largely of its own making, or the fact that fees from some source may be needed for the support of essential fishery research and management programs. Either that or the collective group was suffering a severe case of “anal-cranial inversion,” to use a favorite Magliozzi brothers’ term.
Of the issues the conference organizers chose not to ignore was that of “separating conservation from allocation.” This proposal calls for a decision made by some group of scientists to establish the total level of fishing, leaving the council then to allocate the available catch among the various fishing groups. This was a recommendation made by both ocean commissions. The concept has given some fits to fishing groups, including PCFFA, since the two issues are not as easily separable (e.g., type of gear used, timing of seasons) as the commissions would have made them seem. Moreover, the North Pacific Council has been indignant over this, stating that it already does just that -- separating the establishment of catch levels from the division of that catch -- through its council process. In other words, “don’t mandate it Congress,” is what the North Pacific argues, saying it has never allowed any overfishing.
But the fact is that there have been a number of instances among the other councils where catch limits were set by those bodies at levels much higher than that recommended by the science. The problem is, just stating to the regional councils “Thou shalt not overfish” may not be good enough given NMFS and many of the regional council’s past flaunting of the law. That’s why the ocean commissions and others have recommended a more detailed process of separating the two functions, making it more difficult for council’s to recommend, or Commerce to adopt, management plans allowing excessive fishing effort.
The bi-partisan Fisheries Science & Management Enhancement Act of 2005, HR 1431, reflects some of the concerns raised by PCFFA and other fishermen’s groups in its language aimed at implementing the spirit of what was recommended by the two commissions. Unlike last year’s Fisheries Management Reform Act (Rahall, et al.), this year’s HR1431 more closely follows the successful process established by the North Pacific Council and, indeed, is similar to what the conference ended up recommending.
If conference participants (as opposed to those of us there as observers) seemed to grasp the concept of separating conservation from allocation, they were certainly unclear on the concept of ecosystem-based management. Aside from ignoring the additional costs, the participants seemed to miss or ignore the jurisdictional, compliance and implementation issues involved.
The Magnuson-Stevens Act gives NMFS and the regional councils’ authority in managing fisheries within the EEZ, but no such authority to regulate other activities affecting the health of those fish stocks or their habitat. True, designation of essential fish habitat (EFH) conceivably could give NMFS and the councils some additional authority, but that is unlikely to be extended beyond fishing activities and even that authority is very weak.
Other than that, the Endangered Species Act (ESA) does give NMFS some additional leverage over non-fishing activities affecting fish stocks or their habitat, but the ESA is limited solely to those species listed as threatened or endangered under the ESA, which most fish stocks are not. Also, by the time a fish stock is ESA-listed, it is already so far down the road toward extinction that it is likely to be on basic life support for a long time. What is needed is something to prevent and control habitat losses and other non-fishing impacts much earlier than the ESA.
To address this conundrum -- the lack of authority over non-fishing factors -- the Pew Oceans Commission recommended establishment of regional “ecosystem councils,” bringing together all those agencies with jurisdiction over the various and numerous factors affecting fish and ocean health as a way to empower NMFS and the regional councils in dealing with non-fishing factors affecting fish stocks. The political reality, after all, is that Congress is not about to give NMFS or the council’s authority to regulate polluters, developers or others. However, many agencies already have that authority, but simply fail to use it on behalf of protecting fisheries. The “ecosystem council” approach would give them that mandate in consultation with NMFS and the regional councils.
Instead of recognizing the value of these “ecosystem councils,” or some variation thereof as a means of improving their management of fisheries throughout the lifecycle, the councils (and most in the fishing industry) saw them as a threat. That, and a lot of nattering about “another level of bureaucracy” has so trapped folks in their own rhetoric that it may now be impossible to get them out of it. The conference provided no help either, since those few of us in attendance who had actually read the commission reports and understood what was being said could not address those allowed to participate to set them straight.
The conference participants seemed equally oblivious about compliance with national environmental standards. Rather than analyze how best to make Magnuson-Stevens comply with the National Environmental Policy Act (NEPA), the country’s primary conservation statute, conferees were instead trying to figure out how to exempt federal fisheries from that law. NEPA provides a valuable tool for addressing a number of environmental factors that can affect fish stocks that we cannot get at, as noted above, solely through the Magnuson-Stevens Act. Exempting the MSA from NEPA, instead of finding ways to make it more compliant and compatible, is a sure-fire invitation for all others -- polluters, developers, etc. -- to seek to exempt their own activities from similar environmental oversight. Compliance with NEPA may sometimes be inconvenient for NMFS and the councils, but it is better than having a lot of other industries and activities use such a precedent to seek exemptions for themselves.
Finally, conference participants appeared equally unclear on how to implement ecosystem-based management. Nowhere in the discussions was there talk about the types of tools that would be needed to carry this out. Development of resource information systems, containing essential ecosystem data including maps, oceanographic and biological information, and a repository for ongoing research and stock assessments, would seem essential if we are to move to true ecosystem-based management. Yet there was no discussion of these techniques nor the development of other tools to make such management work.
The discussion on individual fishing quotas (IFQs) was equally abysmal. Presenters were long on ideology, but short on facts or analysis. The presenters, with the exception of Seth Macincko, were unabashedly pro-IFQ. There was no one there to present another side of the argument (Macincko presented an auction alternative means for allocating quota). Among the council members present were those who won, or represented those who won, IFQ shares. No one who lost out -- certainly not a surf clam fisherman or a North Pacific crab fisherman now stuck with selling crab to processors holding quota -- was there to present another side of the issue.
Not only were there no dissenters (not unexpected since one of the Mid-Atlantic Council members apparently was a major quota holder in the surf clam fishery, and it was the North Pacific Council that voted unanimously in favor of giving processors 90 percent of the BSAI crab quota), but the discussion itself was largely confused. Participants hated “sunset” clauses, but it was clear most didn’t even understand what they were. There was no understanding or analysis done of other forms of use granted for public resources, such as water contracts, timber bidding, oil or grazing leases, etc. to gain a clearer understanding of what exists currently and what is working and not working. I would have felt a lot better if folks there had spent less time reading books of quotes and arcane economic theory and done a little fact finding before trying to foist these programs on all our fisheries. It would have been good as well if some non-government lawyers had been present to take the participants through takings law and, particularly, the current cases before the U.S. Court of Claims on water contracts. Such an exercise would quickly show how incredibly difficult and expensive it can be to reassert public ownership over public resources once they have been given away to private owners.
Community development quotas and other forms of rights-based management were given some mention, but mostly got short shrift in the discussions. Those thinking they might find something new or useful about some of these alternatives came away disappointed.
If the discussion on IFQs was not bad enough for its lack of facts or analysis, conference participants rejected any type of national standards for IFQ systems and instead recommended the Secretary of Commerce develop such standards. Was someone in a coma the past 10 years? Congress in 1996 directed NMFS (part of the Department of Commerce) to develop exactly such standards. They refused and the moratorium on IFQ systems expired -- bringing us to where we are today. However, given much of the discussion on IFQs throughout the 3 days, it is surprising the participants agreed to the imposition of any standards by anyone. Had they drafted HR 200 back in 1976, I doubt there would be any national standards for fishery management today in the Magnuson-Stevens Act.
Not only were participants opposed to any form of Congressionally-imposed accountability standards for IFQs, they don’t even want fishermen voting on IFQs. The conference rejected a double referendum for IFQs (one on whether to proceed, a second on the actual system) or in fact any referendum whatsoever. Under their recommendations, a council could proceed with developing an IFQ system whether it makes sense or not for a fishery, and then simply adopt such a program, all without the fishermen who it is to be imposed on having any say in the matter whatsoever.
The undemocratic nature of the IFQ recommendation, however, should have come as no surprise. The conference was organized in such a way that only the invited participants had any say. The rest of us were there largely to fill in the vast meeting rooms of the Omni-Shoreham. We could as well have stayed home and watched the whole thing by video.
The highlight of the conference was clearly Thursday night’s banquet. There, in the best tradition of political prankster Dick Tuck, Greenpeace activists dressed as waiters passed out menus and unfurled balloons. It was only after they left and people picked up the menu, reading “Mismanaging Our Nation’s Fisheries” with a complete list of depleted or overfished fish stocks as entrees, that they began seeing red. The signs on the balloons were not very clever, with sayings like “Who stole the fish? The Pacific Council did,” but Greenpeace should at least get a B+ for chutzpah, sending council members scurrying to gather balloons and menus alike before the Admiral’s dinner speech. Humor and self-deprecation is not a strong suit for either the councils or NMFS.
A few weeks before the conference, the Fisheries Science & Management Enhancement Act, HR 1431, was introduced. It was the one fishery bill to have been introduced at the time of the conference, although other bills are rumored soon from Senator Stevens, perhaps Senator Snowe, and Maryland Congressman Wayne Gilchrest.
HR 1431 would implement some of the fishery recommendations made by the U.S. Commission on Ocean Policy. It is similar to last year’s bill, the Fisheries Management Reform Act of 2004 (H.R. 4706 in the 108th Congress), by Congressman Nick Rahall, the ranking minority member on the House Resources Committee, but makes some important changes and additions.
The new bill explicitly states who may be a member of a regional council. Although the current language (from the 1986 reauthorization – language mostly developed by PCFFA) does not preclude the general public from being a member, the bill, as recommended by USCOP and even the conference participants, specifically provides for this broader membership. Council members, however, are still required to be knowledgeable of the fisheries and there is to be a balance of interests. Unfortunately, Commerce has never adhered much to either the existing knowledge or balance requirements.
The bill, unlike last year’s, allows council members with a financial interest in a fishery to participate in discussions on that fishery, they simply can’t vote. The bill also limits council members to three terms and requires them to undergo training. However, this provision does not go as far as PCFFA and others have suggested in making state and federal representatives subject to the same conflict of interest provisions that may arise when they vote against fish conservation in order to keep their state or federal employment, or be considered for promotion.
This year’s bill is much more fishermen-friendly and reflects a number of changes recommended by PCFFA and other fishing groups. This includes, as mentioned above, language on the separation of conservation from allocation that more closely follows what is successfully in practice in the North Pacific.
Moreover, HR 1431 at least takes on a part of the funding and research issue that NMFS and the councils ducked at their management conference. The bill would direct all but $5 million from the Saltonstall-Kennedy Act (S-K), a $75 million/year program derived from a tariff on fish imports, to fishermen’s cooperative research programs.
Readers may want to compare the language in HR 1431 with the recommendations made at the conference.
Fishing, like baseball, needs help. But it’s not going to happen if folks are in denial. Baseball has to confront the steroid issue. NMFS, and the regional councils, have got to begin confronting the myriad of problems facing our fisheries, including funding and aquaculture, not denying or ignoring them.
The big difference between baseball and our fisheries is that Congress was hearing from good ballplayers -- steroids or no steroids. NMFS and the regional councils, on the other hand, have mostly operated like the 1962 Mets played, or the old Washington Senators and St. Louis Browns. Worse, some council members, using their membership for personal gain at the expense of fish stocks or other fishermen, have displayed the morals of the 1919 White Sox. This is too bad, because there are some very good members on some of the councils, including the likes of John Pappalardo (New England), Larry Sims (Mid-Atlantic) and Bob Alverson (Pacific).
The fact that there is such great potential for regional council fishery management is part of the frustration. The regional council system process is probably the best way for this nation to manage its resources -- in theory anyway. There the states and public are directly involved in the management of a federal resource, experienced fishermen can sit on the councils and advisory bodies, the process is open and allows for public involvement, and is (or is supposed to be) transparent at least until it reaches the Commerce level. Compare that to the way oil or timber leases are auctioned, or water contracts or grazing leases are negotiated.
Yet as good as the process is on paper, most of the councils have operated with mediocrity and a fair amount of mismanagement. And, the self-congratulatory tone of the national conference on fishery management gave me little hope of any improvement in the future.
Rather than deny the major problems confronting our fisheries, it is time to begin demanding more from NMFS, more from the regional councils, and more from ourselves. Good ball clubs demand excellence from their players and staff. We have to begin demanding the same from our fishery managers. The national conference was an embarrassing display of a group that can’t hit, run, pitch or catch.
The Fishery Conservation & Management Act was to be the Renaissance of our fisheries, not their ruin. Even where some stocks are rebounding, “rationalization” plans afoot or proposed will wreck the careers of too many fishermen. Former Congressman Gerry Studds, the House author of the FCMA (now called Magnuson-Stevens), HR 200, was once asked why his name was never put on the act. “Not until they get it right,” he said. From what was apparent at the recent conference in Washington, they are still not "getting it," much less getting it right.
Zeke Grader is Executive Director of the Pacific Coast Federation of Fishermen’s Associations, the west coast’s largest trade association of commercial fishing families. PCFFA can be reached as follows: Southwest Regional Office, PO Box 29370, San Francisco, CA 94129-0370, (415)561-5080; Northwest Regional Office, PO Box 11170, Eugene, OR 97440-3370, (541)689-2000; Email to: fish1ifr@aol.com. PCFFA’s web site is at: www.pcffa.org.