This latest indictment of fisheries management could indicate that the current regulatory plan and structure are effectively unable to deal with the issues, and potentially opens the door to alternative management directions.

On Dec. 28 the U.S. District Court for the District of Columbia ruled that the National Marine Fisheries Service (NMFS) had failed to meet the fish stock rebuilding requirements outlined in federal law. In a stinging opinion, Judge Gladys Kessler ruled against the Department of Commerce (the parent agency for the Fisheries Service), citing that the government had shown “a record of inaction and delay,” and noted that the record indicated that even after Congressional mandate on the issue, “[NMFS] adopted no new measures to minimize bycatch and bycatch mortality in the fishery.”

Lawsuit: catch levels too high

The lawsuit had been filed by the marine advocacy group Oceana, on behalf of four other environmental organizations, namely the Conservation Law Foundation, the Natural Resources Defense Council, the Ocean Conservancy, and the National Audubon Society. The suit charges that groundfish catch levels, as proposed by the New England Fishery Management Council (NEFMC) and approved by NMFS, are too high and violate federal law by risking further depletion of New England groundfish populations. In what the five environmental organizations involved have called a major litigation victory, the court ruled in favor of the groups on all counts, upholding their claim that NMFS is jeopardizing the long-term ecological and economic health of the fishery by not taking action to stop overfishing and minimize bycatch as required by law.
Specifically the environmental groups allege that NMFS has failed in regulating the New England multi-species groundfish fishery to uphold the Sustainable Fisheries Act (SFA) of 1996, which provides direction for the harvest of cod, haddock, flounder and nine other species of bottom dwelling fish. New England’s catch of these fish dropped from 375 million pounds in 1980 to an all-time low of 97 million pounds in 1996. In response to this, the SFA required all stocks to be rebuilt by 1998, a goal which has seen some stocks turn around. But others (including Gulf of Maine cod) have failed to make the improvement grade.

The effects of the ruling are yet to be seen, but many fishermen feel that it will almost certainly lead to more restrictions. The fishery is regulated with a combination of regulations, including a limited number of permits, closed seasons, closed areas, gear specifications, and trip and daily limits on catch. Roger Libby, lifetime small-boat draggerman from Port Clyde, said, “I just can’t stand it, any more cuts in our fishing will put me out of business.”

This sentiment has been echoed by many fishermen and groups across Maine and New England, including trawler owners in Portland, the Associated Fisheries of Maine, the Massachusetts Fishermen’s Partnership and even the city of Portland.
Environmental groups, on the other hand, feel that this ruling may help lead to long overdue regulatory action to rebuild depleted stocks, and called it “a strong victory for the environmental protection principles of the Sustainable Fisheries Act and for all New England fish populations,” according to Priscilla Brooks, Conservation Law Foundation Marine Project Director.

While the eventual outcome of this judicial decision remains uncertain, it does appear certain that this action will jolt the fisheries regulators out the path of status quo management. “It would appear to me that no action is really not an option,” said Teri Frady of NMFS.

Other fisheries nationwide have also gone to the courts to resolve management disputes, and the results have often had a significant effect on fishing. In Hawaii over two million square miles were closed to tuna longlining by a district court judge’s decision in 2000. That action was brought by the Earthjustice Legal Defense Fund to protect sea turtles, and affected 115 boats. Alaskan trawlers were also recently banned from a large swath of North Pacific grounds following a court decision that halted fishing until the Fisheries Service could come up with a plan to better protect populations of the endangered Steller’s sea lion. This was one of the toughest judicial actions under the Endangered Species Act, affecting America’s largest single fishery, restricting boats fishing for pollock, pacific cod, and other groundfish from about 80 percent of the usual grounds. In March of 2001, a Florida suit filed by the Ocean Conservancy to prevent the bycatch of juvenile swordfish, marlin, and other species resulted in a commercial longline fishing ban along the southeastern U.S. coast. A coalition of commercial fishermen then filed a counter suit, also against the Fisheries Service, claiming that they violated the law by not taking economic effects into consideration. Yet another pending suit charges that the Service is damaging crucial habitat in New England waters by allowing access to potentially damaging scallop drags.

Bogging Down

In fact, the Fisheries Service currently has dozens of lawsuits pending, a situation that obliges the agency’s staff to spend their time in court, rather than putting resources into monitoring and regulating.

Further evidence that the management system may be bogging down can be seen in other recent actions taken by the New England Fisheries Management Council (NEFMC). This group, which is changed with coming up with specific regulations for the area, was recently unable to decide on groundfish management measures for 2002, and abandoned its latest proposal (known as Adjustment 36 to the Northeast Multispecies Fishery Management Plan) – in effect leaving the planning up to federal overseers.
NEFMC members from Maine supported the action, stating that the measures were essentially flawed, and would have a significant economic impact while not doing much for conservation. Fisheries managers at the council are required by law to both manage for conservation, through utilizing the best scientific information as well as avoiding undue economic impact on harvesters, and staying on the line between the two has proved to be difficult.

“It was a mishmash of approaches that put a big penalty on fishermen without getting at the real problem,” said Council member John Williamson of Kennebunkport, who cast his vote along with the rest of the Maine delegation for abandoning the draft regulations. This action leaves the forging of regulations up to the National Marine Fisheries Service, but no one, including those inside the agency, can say exactly how the Service will proceed from here. Regional Administrator Patricia Kurkul estimates that it will be “at least two years” before a comprehensive management plan can be formulated, but said “it is clear that we cannot wait any longer, and we are going to have to take some interim action by May first.”

Old Ways

There may be room in this current uncertain regulatory environment to institute new, innovative management ideas – although, as fishermen Ted Ames of the Stonington Fishermen’s Alliance points out, “perhaps some of these ideas are not new, but rather a return to earlier, more sustainable fishing practices.”

One possible new management plan, Ames suggests, would recognize “the regional nature of the stocks, and divide the region into smaller units with limited, community-based access.” Inshore regions, for example, could perhaps be hook-and-line fishing only, which would reduce the amount of discarded bycatch. But from his point of view as a fisherman, “it is far from being a black-and-white issue, and I have some reservations about the direction this has taken [i.e. driven by environmental groups], but it is true that solutions have just not come out of the council, and many coastal fishermen have been denied a voice in the process.”

Ames concluded that “our coastal stocks have been stripped, and something other than business-as-usual must be done to rebuild them.”

In her Dec. 28 decision, Judge Kessler ordered the parties – environmental groups and federal regulators – to develop a plan to meet groundfish stock rebuilding goals. It is likely that increased observer coverage to monitor discards and reduced total catch allowances will be part of the package. Further measures could include reduced days at sea, permanently closed marine protected areas, and gear restrictions. It is clear that the fishery that helped build New England is in a time of critical change, and both future generations of fish and fishermen are at stake. It is equally clear that for the foreseeable future, a federal judge will be reviewing any decisions that are made.

Ben Neal is Program Officer for Marine Resources at the Island Institute.