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.”


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