To Come Back from Carlos Rafael, New England Fisheries Need an Attitude Change

Photo credit: Joachim S. Mueller.

When Rob Gronkowski took that horrific head slam during the Pats vs. Jaguars AFC Championship game, one question on everyone’s minds was: is he going to get up? The same question applies in equal measure to New England’s proud fishing tradition after the head butt that was, or is, Carlos Rafael.

A better understanding of the potential enormity of Rafael’s illegal activities – even beyond the groundfish fishery – came to light in NOAA Fisheries’ January 10th civil notice letter, identifying new violations with his scallop fleet. The persistence of his illegal activities, however, remains undetermined. This was blatantly demonstrated when, just recently, one of his captains, still fishing under Rafael’s permits, was caught lying to enforcement agents about illegal scallops hidden under the ice in his holds.

Apparently, it is just Rafael’s nature and those around him to despise limits and the law, especially if breaking the rules means additional profits. Of course, there are fishermen who believe in the current system and comply with most of the regulations. But New England’s docks are notoriously leaky, and it’s fair to wonder how many in the port of New Bedford simply looked the other way, minding their own businesses.

Nothing New Under the Sun

New England fishermen have a long history of doing battle with government regulations, dating back to the colonial era when King George’s revenue enforcers found them to be “stubberne fellowes.” Fast forward a couple hundred years to the passage of the Fishery Conservation and Management Act of 1976 (predecessor to the Magnuson-Stevens Act) and find a decade of management chaos and illegal reporting fueled by the fishermen’s distrust of the stock assessments, rapidly changing regulations, and inadequate enforcement. Ultimately, quotas became so widely disregarded that they had to finally be abandoned as a management tool, leading to accelerated overfishing and the recollapse of groundfish stocks in the 1990’s.

Then, as now, New England’s fishermen found support in elected officials ready to criticize NOAA’s management efforts in blind loyalty to their fishing constituents—even when the fisherman-dominated New England Fishery Management Council was the author of those efforts. Congress also poured US dollars into the fishery in the form of new vessel subsidies and disaster relief. The region is still trying to recover from the fleet over-capitalization that those subsidies encouraged.

Rafael, who until recently was deemed by some to be the head of the most successful groundfish operation in New England, personifies that management-resistant mindset that so many fishermen in New England still manifest today. Remarkably, after all that has come to light about Rafael and his affiliated enterprises, some in the industry still seem to blame government for all that is bad in their fisheries. This time, looking for yet another scapegoat, the catch share management system is apparently what created Rafael.

Not a Perfect System

The catch share program, in my opinion, was poorly designed and implemented. The Council and NOAA Fisheries rewarded the fishermen who were most responsible for groundfish declines in the early 2000’s with the largest catch allocations in the new system. The Council and NOAA Fisheries failed to adopt the consolidation controls that most commenters, including the Council’s own consultants, pushed for then and later in Amendment 18. And the over-zealous enforcement system was still reeling from the damage it had suffered due to the investigations into its methods with some fishermen and dealers.

But to say Rafael was a product of these management lapses and challenges is avoiding the obvious question: where was the fishing industry in all of this and what responsibility does the industry share for enabling Rafael’s behavior? Rafael was cheating his way through the fishery for decades, way before the catch share program came into existence. The historic animosity toward federal management and science combined with the absence of any meaningful industry-wide ethical standards that fishermen are prepared to enforce on their own is what, at least in part, built Rafael’s criminal empire.

Mutual Coercion, Mutually Agreed On

The collapsed state of New England’s groundfish fishery is often used as a prime example of “tragedy of the commons” in action – and rightly so. But as extensive academic literature examining this tragedy points out, the outcome of “ruin for all” is not inevitable. There are many ways around it, including community-based solutions. Participants can break the cycle if they agree to adopt and live by enforced limit setting strategies. Garrett Hardin, the author of the original “tragedy of the commons” thought experiment, called it “mutual coercion, mutually agreed on.”

Those strategies can come from the top-down or from the bottom-up. They can be based on catch share programs or other tools. Nobel laureate Elinor Ostrun made the case that “groups are capable of avoiding the tragedy of the commons without requiring top-down regulation” – i.e. without the government regulation that so many fishermen despise. But not if they are passive or indifferent. Fishermen cannot sit by and watch colleagues break the rules, thinking that it doesn’t involve them – because it does.

New England’s groundfish fishery operates largely on an honor system. An honor system only works if there is a shared belief that everyone else is more or less behaving the same, that the rules are fair and equitable, and that complying with the law is the right thing to do. Without the community fabric and discipline necessary for developing and maintaining such a system, the law-abiding fishing operations are inevitably driven out of the fishery and public fish resources overexploited by the Carlos Rafael’s of the world. There is a critical need for improved and effective government regulation and enforcement, but fishermen in New England also need to start holding each other accountable.

Despite NOAA Fisheries’ January 10th enforcement letter to Rafael, there’s still a chance that Rafael will negotiate a deal with the agency regarding his forfeited quota and assets to settle the civil proceedings. That means there is still time – and a necessity – for other fishermen who want to break the pattern in New England to step up to the plate and make their voices heard. Wouldn’t it be a great outcome from this mess if the agency refused to settle and, instead, used those assets to help the best of New England’s fishermen bring a new ethic of responsible fishing and the next generation of law-abiding fishermen into the fleet?


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