We shouldn't ignore these conservation threats in fish bills

This year has featured a flurry of fisheries-oriented bills, many with provisions that threaten to undermine the significant progress the United States has made in reducing overfishing and rebuilding overfished fisheries.  Understandably, much of our attention as conservationists has been on the threats to annual catch limits, accountability, and rebuilding requirements.  But this focus risks missing other aspects of the bills that also threaten conservation without providing any real benefit to commercial fishermen, anglers or seafood consumers.

A closer look at the catch share, reallocation, and exempted fishing permit (EFP) provisions of H.R. 200 and S. 1520 reveals that they would hamstring effective conservation and management.  While controversies, complexities, and pressures have led to a push for action on these bills, in the always-complex world of fisheries management, the provisions discussed below are all risk and no reward.

Florida Fish and Wildlife via flickr: https://flic.kr/p/VjyKem

Catch shares

Moratorium:  S. 1520 and H.R. 200 would institute a moratorium on limited access privilege programs (LAPPs — a kind of catch share) in “multi-sector” fisheries that are not part of “pending” fishery management plans or plan amendments as of the date of enactment until a National Academy of Sciences (NAS) study is completed.  Although the study is due in one year, the moratorium would continue until the study’s submission to Congress, not limited to one year.  Both the study and the moratorium are unnecessary and unwise.

Catch shares have been the focus of several NAS studies, as well as research by other credentialed research institutions.  These studies have examined the impact of catch shares on the environment, fishermen, and income to fishing communities.  A list of academic articles addressing the issues raised in S. 1520 can be found at the end of this blog.  After years of experience, fishery managers, scientists and Councils know how to design catch shares to address policy challenges; no further study is needed.

Indeed, since the previous catch shares moratorium expired, two new LAPPs have been instituted on the Pacific Coast and in the Gulf of Mexico.  The programs have illustrated the conservation and economic benefits of LAPPs, including dramatically reducing bycatch, a conservation challenge of the highest order, by at least half in both fisheries.  In light of the thorough nature of the science concerning catch shares and the widespread experience implementing them, a moratorium would do nothing other than take a valuable tool from the regional fishery management councils.

S. 1520 endeavors to grandfather in certain catch share proposals, possibly in order to preserve the option to proceed on Amendments 41 and 42 to the Gulf of Mexico Reef Fish Fishery Management Plan, which would build on the positive results of a recent EFP (see below) by applying the tool to charter and headboats. But opponents of these efforts are likely to push for the moratorium to cover them. More generally, the existence of a moratorium and vague definition of “multi-sector fishery” would chill the development of any new catch shares, even if fishermen want to pursue them.

Referendum:  Before allowing catch share programs to be submitted to the Secretary for approval, H.R. 200 would (1) require a referendum in the Mid-Atlantic, South Atlantic, and Gulf of Mexico, in addition to pre-existing requirements for referendums in New England and the Gulf of Mexico; and (2) specify that the final program must be approved by a majority of permit holders.

This mandate is very different from current law, which provides that only those who have “substantially fished” the species proposed to be included in a catch share program are eligible to vote in the referendum.  See 16 U.S.C. § 1853a(c)(6)(D).  Under current law, the Gulf Council can determine which permit holders meet the definition of “substantially fished”;[1] by explicitly defining who can vote, H.R. 200 would take discretion from regional decision-makers.  Moreover, current law requires a majority of votes cast, not eligible voters (a much larger group), for a catch share to take effect in the Gulf.  See id. § 1853a(c)(6)(D)(i).

Fishery management councils have always had the power to call for a referendum for a new catch share program.  Mandating referendums and strict voting criteria from D.C. is an unwarranted intrusion on the flexibility inherent in the regional fishery management council system.  These burdensome referendum requirements – a referendum for the grouper/tilefish IFQ in the Gulf of Mexico added a full year to the development timeline[2] — may deter councils from developing a management solution that could be considered a LAPP, limiting design choices that may be best to address conservation and management issues.  Indeed, avoiding a referendum was cited as the reason for some design changes during development of the New England sector program.[3]

Mandating an expansion of the universe of fishermen who can vote on a catch share program would give more power to those who are not substantially fishing for a given species, allowing less-invested fishermen to veto a program supported by those who do substantially fish the species, especially since a referendum would need to pass by a majority of eligible voters whether they vote or not.  In the Gulf of Mexico, for example, a new catch share program for hogfish might be subject to a referendum in which all active commercial fishermen are eligible to vote, whether or not they actually fish for hogfish at all.

Catch share programs often address overcapacity — too many vessels are chasing too few fish — and councils identify so-called “control dates” past which fishing will not count towards initial allocations.[4]  By mandating from D.C. that only those who are “actively fishing” as of the date of the referendum or whose permits have been used in three of the last five years preceding the referendum can vote, H.R. 200 could encourage increases in fishing while a catch share program is under development, the opposite of what we want when overcapacity is a problem.

In short, imposing more stringent referendum requirements would limit the ability of local fishermen to choose to pursue a catch share program even if they conclude that using that tool would be the best approach for their fishery and would impose substantial delays and costs.  If councils want to require referendums, under current law they can, and these regionally-based bodies should decide how much process they want to pursue.

EFPs

EFPs are widely used and usually non-controversial.  For example, the Pacific groundfish fleet is currently fishing under an EFP that is demonstrating a marked increase in target catch with reduced bycatch.  Yet both S. 1520 and H.R. 200 would impose significant burdens on the approval of EFPs, effectively giving states veto power over EFP applications and lengthening a process that already provides for careful review.

The North Pacific Council and others have expressed concern about these limitations, and for good reason – they constitute a solution in search of a problem.  The EFP provisions were prompted by a few EFPs that, while earning the ire of some anglers, piloted important management improvements and collected valuable scientific information.

For example, a 2014-15 EFP conveyed small allocations of red snapper and gag grouper, based on catch history, to 19 headboats, which they were allowed to catch at any time in exchange for careful monitoring and reporting.  As described in this blog, a recent paper in Fisheries Research found that the captains adhered to their catch limit, reduced bycatch by half, and doubled the number of trips they took, taking twice as many anglers fishing year round.  The successful pilot program forms the basis for FMP amendments (see above) that could result in year-round fishing for thousands of anglers from who depend on charter/for-hire vessels to access the red snapper resource.

Moreover, the five Gulf States are hoping to manage the recreational portion of the federal waters red snapper fishery pursuant to EFPs; the Gulf Council provisionally recommended approval of those EFP applications in late January and NMFS will shortly publish them for public comment. If these state management EFPs were subjected to the extensive requirements of S.1520 and H.R.200, they would not be approved in time for the 2018 fishing season.

In short, EFPs serve to pilot important science and management improvements, and the provisions in H.R. 200 and S. 1520 would hamper legitimate efforts to move forward on some of our most difficult fishery management issues.

Reallocation reviews

Recreational fishing advocates have asserted that councils resist revisiting allocations between commercial and recreational sectors, and both S. 1520 and H.R. 200 would mandate periodic reviews in the Gulf of Mexico and South Atlantic that would cover some 32 stocks and six stock complexes.  Again, under current law councils can and do revisit allocations; however some recreational fishing advocates seek reallocation in an effort to provide greater access to anglers.  Recent experience demonstrates, however, that such reviews would divert significant resources from compelling management issues without significantly improving recreational fishermen satisfaction.

On the west coast, plaintiffs convinced a federal district court that the analysis underlying the groundfish IFQ allocation (which took seven years to develop) was flawed and the allocation was remanded to NMFS in 2011 for further explanation.  After a solid year of dedicated work, during which time the Pacific Fishery Management Council delayed numerous sorely-needed regulatory actions, the Council concluded the original allocations were correct.  NMFS approved, and both the district court and the Ninth Circuit affirmed the agency’s decision.[5]

In the Gulf of Mexico, recreational and commercial red snapper allocations were reviewed in a process that stretched from 2007 to 2015.  During these deliberations, stakeholders, including a coalition of environmentalists, fishermen, and supply chain participants (including restaurants) known as Share the Gulf, undertook sustained campaigns to advocate for or against reallocation.  After the eight-year process, the Gulf of Mexico Council recommended, and NMFS approved, a reallocation of 2.5 percent; that reallocation was then struck down by a federal court, returning the allocation to exactly where it had been when the process began.[6]

S. 1520’s mandated review of so many species, including high profile species such as gag grouper, greater amberjack, and red grouper, would drain the resources of the Gulf of Mexico and South Atlantic councils and profoundly impact their ability to address high-priority issues such as potentially delegating some management to states. Whether to revisit allocations should be left to the discretion of the regional councils, and indeed, the Gulf Council recently tasked its staff with developing a scoping document to evaluate red snapper allocations once again.

In sum, while the catch share, reallocation, and EFP provisions of the pending MSA bills have not gotten as much attention, they also threaten effective conservation with our providing any real benefit to fishermen or seafood consumers. Rather than fixing challenges under the current system, these provisions would make the system slower and more cumbersome.  We look forward to working with members and stakeholders to ensure MSA’s policies and provisions result in more innovation and efficiency.

Attachment:  Publications concerning catch share issues raised in S. 1520

Abbott, J.K. and J.E. Wilen (2008). “Rent Dissipation in Chartered Recreational Fishing: Inside the Black Box”, American Agricultural Economics Association 2008 Annual Meeting, Orlando, Florida.

Copes, P. and A. Charles (2004). “Socioeconomics of Individual Transferable Quotas and Community-Based Fishery Management”, Agricultural and Resource Economics Review, 33(2):171-181.

G S Gislason and Associates, LTD (2008). Employment impacts of ITQ fisheries in Pacific Canada. Canada Department of Fisheries and Oceans.

Grainger, C. and C. Costello (2012). “Distributional Effects of the Transition to Property Rights for a Common Pool Resource”, Working Paper.

Guyader, O. and O. Thebaud (2001). “Distributional issues in the operation of rights-based fisheries management systems”, Marine Policy, 25(2): 103–112.

Hanna, S. (2009). Managing the Transition: Distributional Issues of Stock Rebuilding. Pp. 141-162 in A. Cox, ed., The Economics of Rebuilding Fisheries, Paris: OECD.

McCay, B. (1995). “Social and Ecological Implications of ITQs: An Overview”, Ocean and Coastal Management, 28(1-3):3-22.

Sanchirico, J.N. (2008). “An Overview of the Economic Benefits of Cooperatives and Individual Fishing Quota Systems”, Subcommittee for Oceans, Atmosphere, Fisheries and Coast Guard of the Senate Committee on Commerce, Science and Transportation.

(Update: In a previous version of this blog the section regarding referendum requirements in H.R. 200 made an incorrect reference to the king mackerel fishery which does not operate under a multi-species permit. This section has been updated to include a more appropriate example.)

[1] See Coastal Conservation Ass'n v. Blank, No. 2:09-CV-641-FTM-29, 2011 WL 4530544, at *10 (M.D. Fla. Sept. 29, 2011) (upholding Council’s selected eligibility criteria to vote in a referendum; “While the[Council’s] definition of ‘substantially fished’ could have been different, it is clearly not arbitrary or capricious.”).

[2] See Coastal Conservation Ass'n v. Locke, No. 2:09-CV-641-FTM-29, 2011 WL 4530631, at *5 (M.D. Fla. Aug. 16, 2011), report and recommendation adopted sub nom. Coastal Conservation Ass'n v. Blank, No. 2:09-CV-641-FTM-29, 2011 WL 4530544 (M.D. Fla. Sept. 29, 2011) (stating that the Gulf Council formally requested a referendum on August 18, 2008, and the IFQ program was not finalized and published in the Federal Register until August 31, 2009).

[3] See Lovgren v. Locke, 701 F.3d 5, 23 (1st Cir. 2012) (“In developing [the sector program], the N.E. Council was cognizant of the Reauthorization Act's LAPP provisions. During the scoping process, the Council declined to pursue certain proposals which might raise questions about the applicability of section 1853a's protections.”); id. at n. 17 (“For example, one of the proposals received by the Council, and not adopted, advocated for a “points system” of management; that in turn raised the question, as the Council recognized, of whether the “points system” would be subject to section 1853a’s referendum requirement.”).

[4] See Alliance Against IFQs v. Brown, 84 F.3d 343, 347-48 (9th Cir. 1996) (NMFS had “good reason” for disregarding fishing activity after the control date while the Council developed the IFQ program at issue, “because the alternative would encourage the speculative over-investment and overfishing which the regulatory scheme was meant to restrain.”); see also Pac. Dawn, 831 F.3d at 1175 (affirming and applying same rationale).

[5] See Pacific Dawn, LLC v. Pritzker, 831 F.3d 1166 (9th Cir. 2016).

[6] See Guindon v. Pritzker, 240 F. Supp. 3d 181 (D.D.C. 2017).

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