New England Fisheries

Blowing Up the New England Fishery Management Council

Judge Laplante finds "each argument meritless" in Captain David Goethel and Sector 13's lawsuit against the federal government. Image via NOAA.

Captain David Goethel of New Hampshire, an accomplished fisherman and a former longtime member of the New England Fishery Management Council (whose wife now sits on the Council), recently sued the federal government regarding the imminent requirement that New England groundfishermen cover the costs of at-sea observers on their boats.

Until now, U.S. taxpayers have been picking up the tab for these at-sea monitors, which are part of an overall monitoring program that government scientists believe is necessary to accurately assess how many fish and what kinds of fish are actually being caught at sea, including those fish that get caught, thrown overboard, and are never brought back to port.

Some fish are thrown overboard because there isn’t a market for them; others are thrown overboard because of regulatory possession limits. Some fish, like Atlantic cod, get thrown overboard by some fishermen on unobserved trips even if they are dead or dying because the quotas for those fish are so low that landing more of them than the quota allows would close fishing for all groundfish species in that area.

The new requirement shifts the costs of having roughly 20 percent of the groundfishing trips monitored from the U.S. taxpayer to the sector itself. (By way of comparison, in the very successful and prosperous Alaskan northern pollock fishery, 100 percent of the vessels are monitored, primarily through industry self-funding.)

If the suit to block this shift is successful and limits observer coverage to only what the government can fund, the observer coverage would drop to roughly 4 percent of the sector’s fishing trips. It is ludicrous to think that such coverage would be enough to ensure accurate scientific catch data for management purposes. Since 4 percent coverage, which is all the federal government has available, would not meet minimum legal monitoring requirements for this fishery, winning the observer issue could close all fisheries that use gear that catches groundfish.

In any event, more unobserved groundfish trips would lead inexorably to even greater unreported discarding of fish like the struggling Atlantic cod by fishermen desperate to avoid a closed fishing season, even though, endangered status certainly lurks in the not-too-distant future if cod populations collapse much more. That would also disrupt all New England fisheries that use gear that could catch codfish.

Apart from the question of who pays for observers – which presumably could be resolved one way or the other – Captain Goethel’s suit also claims that the observer requirement itself is unconstitutional. Fishermen, he argues, are being “searched” by these observers without approval of a court, violating the Fourth Amendment’s prohibition on unreasonable searches. And the observer program also forces fishermen to give “quarter to ‘Soldiers’ ” on their boats against their will, violating the Third Amendment to the U.S. Constitution.

These claims seem rather silly, frankly, given the fact that there is no constitutional right to go commercial fishing in U.S. waters in the first place and no one, after all, is forcing Captain Goethel or others to go fishing in the first place. The government can place whatever reasonable limits and conditions it chooses on the commercial fishing privileges it grants to these public marine resources.

But Captain Goethel’s lawsuit goes well beyond his attack on the at-sea observer requirement. It also claims that the very structure of the federal fishery management council system violates the U.S. Constitution. The potential consequences of these legal claims are potentially much darker and merit a closer look.

The regional fishery management council system is unconstitutional, he claims, for two reasons. First, because the private members of the councils – mostly fishermen and fishing industry representatives­ – are appointed from candidate lists submitted by state governors, the statutory process violates the Appointments Clause of the U.S. Constitution that vests the appointment power of people exercising significant federal authority solely with the federal government, not state governors.

Second, he argues that the Magnuson-Stevens Act’s council system is constitutionally invalid because the law essentially “conscripts” state fishery officials onto the management councils. The Magnuson-Stevens Act makes a region’s top state fishery officials de facto members of the regional council where they develop the regional fishing rules. This, the lawsuit claims, is contrary to the Tenth Amendment, which prohibits Congress from issuing “directives requiring the States to address particular problems” and from “command[ing] the State officers . . . to administer . . . a federal program.”

Constitution considerations aside, for argument’s sake, perhaps state fishery management directors’ time would be better spent fixing the many problems facing fisheries in state waters, rather than being “conscripted” to do the federal government’s work in federal fisheries.

In any event, the regional council system and the gubernatorial appointment mechanism associated with it are so fundamental to the very concept underlying the Magnuson-Stevens Act that the consequences of success on this part of his lawsuit could actually be to force the closure most U.S. fisheries, at least until Congress could get its act together to make major amendments to the law. This would be dramatically ironic given the stated purpose of the litigation is to assist fishermen and fishing communities.

While legally blowing up the regional fishery council system in some parts of the country would set back decades of solid and sustainable fisheries management, I could unfortunately not say the same for this region – where the New England Council has been a big part of the persistent fisheries mismanagement problem, not the solution: for example, authorizing decades-long overfishing of cod and making management decisions that show bias toward the larger fishing entities and more profitable fisheries.

Perhaps, if the Goethel litigation forces Congress to fundamentally rewrite the Magnuson-Stevens Act, then it would be timely to seriously consider getting rid of the quaint but irrational notion embedded in the current law’s fishery management council system: that it is a good idea having fishermen – the people who directly financially benefit from their own resource management decisions – on the fishery management council making those decisions.

Loggers don’t make decisions on how much of the national forests need to be logged or protected. Ranchers don’t make decisions on how much federal range land should be grazed or protected. Why are fishermen placed in such a patently conflicted position of voting on their own economic interests in the guise of advancing the nation’s best long-term fisheries interests? The New England Council structure does often seem to put the interests of the larger fishing interests ahead of the small day boat fleet.

I guess at the end of the day, all I can say to Captain Goethel is: “be careful what you wish for.”


10 Responses to Blowing Up the New England Fishery Management Council

  • Mark Phillips says:

    Mr. Shelly and CLF make a living from suing NOAA and fishing for dollars. For that they get nonprofit tax status. So the taxpayers pay twice 1) for nonprofit status and 2) because they file so many lawsuits they win by default (a scam all NGOs have perfected). Unlike fishermen who do pay taxes and support local economies.
    Contrary to Mr. Shelly’s claim the majority of people on the councils are not fishermen, and one of the so called fishermen that is on the council is a paid spokesman for the NGOs (John Pappalardo).
    This lawsuit is about fishermen having to pay 2-10percent of their gross income to pay for monitors. What other industry pays to be monitored and at these percentages, the farmers don’t, the beef industry doesn’t, the pharmaceutical companies don’t, the oil companies don’t. Imagine the outcry if Exxon Mobil had to pay 2 percent of their gross income on top of other taxes.
    Why is it wrong for the fishermen to bring a lawsuit but is alright for Mr. Shelly’s CLF to profit from lawsuits?
    Maybe it is time that we look at the NONPROFIT status of all these groups.

    • Joel Hovanesian says:

      And lets not forget who owns one of the companies who provide the observers. A former regional director. This is the very definition of crony capitalism.

      Absolutely sickening how this food producing industry is being destroyed piece by piece.

      These sort of issues brought to us by the tyrants who control these federal agencies are why people like Ammon Bundy are having to do what they are doing.

      • Peter Shelley says:

        No one is being forced to contract with one monitoring company. I believe there are five monitoring companies from which fishing groups can competitively choose. If one of them is a problem for any reason, fishermen can go elsewhere. Since fishery interests essentially write the fishing rules that they profit from through the council system, “crony capitalism” is pretty much descriptive of the whole system.

  • Pingback: Why is it wrong for the fishermen to bring a lawsuit but is alright for Mr. Shelly’s CLF to profit from lawsuits? |

  • Mark Phillips says:

    Maybe Mr. Shelly could explain why he compares the cost of observers on a 300 foot factory trawler in Alaska to a 45 foot trawler in New England. A vessel that makes more money in 1 tow then Mr.Goethel does in a year. Per day observer cost of 1/3 to 1/2 what Mr.Goethel would be paying.
    Mr.Shelly is an expert at suing NOAA, if my memory is correct he brought one of the first or first lawsuit against NOAA with the Groundfish Amendment 13, so i guess it is OK for Mr. Shelly to sue and all the other ENGOs but not a fisherman. At least with a fisherman you know exactly what he is, with Mr. Shelly you get a lawyer who has perfected suing NOAA.

    • Peter Shelley says:

      Captain Phillips, who is on the board of his own fishery NONPROFIT, casts some interesting, albeit misdirected, stones. First, Captain Goethel is entirely within his rights and his duty to go to court if he believes a law or the Constitution is being violated. I am not sure how my blog could be read otherwise. Second, fishing in federal waters is fundamentally different from the beef industry, the pharmaceutical industry, the oil industry or really most industries. Those industries all have extensive and expensive monitoring of their inventory; it is a fundamental, internal cost of running a solvent business. Private logging and grazing on public forest and public lands also have fees charges that are used in part to monitor those activities. Businesses that catch on public fish and shellfish do not pay similar fees for “inventory control” or other management costs associated with the wild fish they catch and profit from. While Congress is free to subsidize this “inventory control” or monitoring as a political matter, no one should imagine that it shouldn’t be done if the fishery is to succeed or that it is inherently unreasonable to expect fishermen to pay a share of those costs. Finally, I used the North Pacific mega-vessel, factory-trawler fleet as an example of a fishery that largely self-funds 100% observer coverage, but the Pacific groundfish fleet, which is comparable to New England, is required to have 100% observer coverage, largely through industry funding.

  • sandy says:

    When does government have the right to force a for profit business to pay another for profit business? This is not rational or reasonable.

  • The author of this piece is dead wrong on every legal and procedural issue he has commented on. Every person in America has a liberty right to catch fish in U.S. marine waters — but only state and federally licensed commercial fishermen can sell the fish they catch. This license is a Constitutional proprietary right. And there is no absolute duty for the management officials to close the fishery for any of the stated reasons. Even the federal fisheries managers agree that there assessment numbers are a flawed estimate and the purpose of federal fisheries law is to protect the business of harvesting wild seafood products — the Magnuson-Stevens Act is not an environmental law. It is U.S. business law. And which one of the above industries that he mentions would put up with having to quarter federal inspection agents in their homes at night after their inspection day is over, not only having to pay their salaries but also their travel time and profits for their managers. And let me remind Mr. Shelly of how then Vice President Cheney held a series of policy setting meetings with the heads of the America’s largest energy conglomerates in the beginning of the Bush Administration and despite the best efforts of the leaders of the environmental movement the Supreme Court ruled that they did not have the right not only to have been included in the discussions but didn’t even have a right to the transcripts of the meetings. So now your upset because some of your efforts to turn fishery management upside down are being challenged.
    Get used to it.

    • Peter Shelley says:

      A commercial fishing license is a Constitutionally-protected property interest, but that does not mean it cannot be regulated, even heavily, by the federal government. The fact that a recreational fisherman is not required to get a saltwater license does not mean that the federal government could not require a saltwater license in proper circumstances. The public’s common law “right to fish” in the ocean or in rivers, which goes back into the mists of early Roman law, should not be confused with the government’s right as the natural resource trustee to condition that right with respect to an individual’s right to fish, which is a privilege. While public rights and Native American rights have long been recognized, a Constitutionally-based individual right to fish has not been recognized by the courts, which is where Mr. Tekula should probably take his legal arguments. And the word play is ultimately meaningless because rights and privileges can be conditioned by government. He certainly hits the bulls-eye on one point: the Magnuson-Stevens Act is not an environmental law. It is fundamentally an economic development law and, excepting for corals in some circumstances, does not do anything to protect fish or marine life, except as food or sport for humans.

  • Peter Baker says:

    It’s disturbing and very telling to see the praise for, and comparison to, Amman Bundy from a New England commercial fisherman. the praising of domestic terrorism is unfortunate and inappropriate.

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