Reauthorization of the Magnuson-Stevens Fishery Act: In Pursuit of Tight Lines and Full Nets

By John Powell

Florida Bar Journal, Vol. 93, No. 6   November/December 2019   Pg 47

The ocean is one of Earth’s most treasured assets. From the deep and frigid waters of the Arctic to the warmth of the Florida Keys, it is awe-inspiring, capable of both sustaining and taking life. The Magnuson-Stevens Fishery Conservation and Management Act (MSA)^[1] was enacted to protect this natural resource and prevent it from exploitation. Signed into law in 1976, the MSA is the primary law governing marine fisheries management in federal waters, and by all accounts a tremendous success. However, with significant growth in recreational fishing, adverse changes in our environment, and improvements in technology, many believe the MSA is long overdue for its next major reauthorization. This article briefly explores the history of the MSA and recent efforts to amend the law, the tension between competing stakeholder interests, and the challenge of scientific uncertainty, an issue that plagues not just the MSA, but law and policy as a whole.

History of Exploitation

Mankind is connected to the sea. We build communities around it, vacation near it, and tell stories about it.^[2] It surrounds us, yet in many ways we know less about it than our solar system. While thousands have scaled Mount Everest, the tallest mountain on Earth, no human has ever set foot on the deepest part of the ocean, not even close.^[3] The water column above the Mariana Trench, for example, is about seven miles deep and exerts a crushing eight tons per square inch of pressure.^[4]

More than two-thirds of the earth’s surface is covered with oceans holding almost 97 percent of it.^[5] According to the National Oceanic and Atmospheric Administration, an astounding 91% of ocean species have yet to be classified,^[6] with 95% of the ocean remaining unexplored.^[7] It is almost inconceivable that mankind could noticeably impact such a large and seemingly inexhaustible supply of fish and the marine ecosystem.^[8] Through pollution, greenhouse gas emissions, and overfishing, nature, although relentlessly adaptive, is now under threat.

Prior to the 1970s, U.S. federal oversight of marine fisheries was almost nonexistent with states assuming primary responsibility within their jurisdiction, generally only out to three miles from shore.^[9] This management approach resulted in the over exploitation of marine resources by foreign fleets that were becoming more adept at fishing, employing advanced techniques to land high volumes of fish often within sight of U.S. land, and without regard to sustainability or the consequences of unintended bycatch. With few restrictions and a lack of enforcement, by 1975, there were thousands of foreign vessels fishing off U.S. shores essentially catching any species and in any quantity possible.^[10] In response, Congress passed the Fishery Conservation and Management Act of 1976.^[11]

MSA Passage

Signed into law by President Ford on April 13, 1976, and later renamed to honor Senators Warren Magnuson and Ted Stevens who helped draft the landmark law,^[12] the MSA ushered in monumental changes regarding the scope and jurisdiction over fisheries management.^[13] The MSA was passed during a decade responsible for creating the very foundation of environmental law and policy as we know it today. From the Clean Air Act to the Comprehensive Environmental Response, Compensation and Liability Act, the MSA is surrounded by titans, but no doubt holds its own as far as impact and importance.

The MSA extended U.S. jurisdiction to 200 nautical miles, later referred to as the Exclusive Economic Zone (EEZ), requiring foreign vessels to comply with strict conservation and management regulations, including monitoring and enforcement.^[14] Management of continental shelf stocks and the recovery of depleted stocks were also now within U.S. control.^[15] The beneficial impact of the MSA was almost immediate. In 1976, just prior to its effective date, the catch by domestic fishermen in the fishery conservation zone was around 289,000 metric tons while foreign catch was estimated to be almost 10 times greater.^[16] However, by the end of 1977, 40 new fishing vessels were under construction in New England, 400 in the South Atlantic and Gulf States, and more than 20 on the West Coast, and by 1992, in a dramatic reversal, the entire catch was being harvested by U.S. vessels.^[17]

Regional Councils

The MSA created an entirely new way of managing fisheries. Like nature, wildlife is wholly unconcerned with the imaginary lines drawn by governments and politicians. Salmon migrate between fresh and saltwater, swimming upstream, dodging predators, and racing against time to spawn. Tuna, swordfish, and other highly migratory species travel thousands of miles each year between states, countries, and even continents. Katharine, the great white shark, for example, who seems to enjoy swimming off the Florida Coast and has enough followers to warrant her own Twitter and Facebook pages, was originally tagged in Cape Cod, Massachusetts, and has traveled more than 30,000 miles since 2013, all the way to Newfoundland, Canada, and as far south as the Bahamas.^[18]

If the heart of its effectiveness lies in the extension of federal jurisdiction out to 200 miles, the soul of the MSA may be found in the formation of regional councils. Effective fisheries management requires both a uniform system of federal laws as well as international cooperation. Yet fisheries management decisions can have a dramatic and immediate local impact. The fishermen, charter boat captains, food processors, bed and breakfast proprietors, and restaurateurs are part and parcel of these coastal towns, and both their identity and economic success are inextricably intertwined with the sustainability of sea. The challenge of fisheries management is not surprisingly a complex and complicated one, and not amenable to a one-size-fits-all approach. Furthermore, the idea that bureaucrats located thousands of miles away might be making decisions on fisheries management issues is not one that resonates well with locals.

To combat these challenges, eight Regional Fishery Management Councils were established, which include New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, North Pacific, and Western Pacific.^[19] The eastern coast of Florida, located in the South Atlantic Council, is characterized by species such as grouper, dolphin fish (mahi mahi), and spiny lobster, including what is thought to be the largest contiguous distribution of deep-water coral ecosystems in the world.^[20] The western side is within the Gulf of Mexico Council and includes well-known game fish, including red snapper, amberjack, and red drum.^[21] Under the MSA, the councils are responsible for developing management plans to prevent overfishing and rebuild fish stocks, and to protect, restore, and promote the long-term health and stability of the fishery.^[22] While states typically manage fisheries from their shores to three nautical miles, the councils regulate the next 197, out to the edge of the EEZ. The total U.S. EEZ represents more than 3 million nautical miles squared of area, with about half under the jurisdiction of the Western Pacific Council.^[23]

While each council is unique, their plans must conform to 10 national standards relating to issues such as overfishing, optimum yields, economic, social and conservation impacts, and safety at sea, with the federal government reviewing and approving each plan and serving in an oversight role.^[24] To many, the makeup of the councils is as important as their authority, intended to fairly reflect the expertise and interest of local stakeholders. There are both voting and non-voting members, with the number of voting members varying from just seven in the Caribbean Council to as many as 21 in the Mid-Atlantic Council. Voting members, which serve a three-year term, include the principal official with marine fishery management responsibility in each constituent state as appointed by the governor as well as the area’s regional director of the National Marine Fisheries Service.^[25] Other voting members are appointed by the secretary, from a list provided by each governor, who by reason of their experience, expertise, or training are knowledgeable in conservation and management, the commercial or recreational harvest, or the fishery resources of the subject geographical area.^[26] Nonvoting members generally include the regional or area director of U.S. Fish and Wildlife Service, commander of the Coast Guard District, executive director of the Marine Fisheries Commission for the area, and a representative of the U.S. Department of State.^[27]

With the goal of ensuring a collaborative, representative, and well-informed process, the councils establish various committees and advisory panels to assist in making important decisions. At the core of the council process is the Scientific and Statistical Committee (SSC), comprised of government employees, scholars, and independent experts with scientific or technical credentials and experience.^[28] The SSC provides advice regarding a wide range of fishery management issues, such as acceptable biological catch, maximum sustainable yield, and rebuilding targets. The SSC also has a socioeconomic panel comprised of social scientists and economists who advise regarding the social and economic impacts of fishery management measures.^[29] In addition, advisory panels may also be established as necessary and appropriate, with the overall goal of balanced representation of commercial, recreational, and other stakeholder interests.^[30]

Recent Amendments

While there have been many amendments, the MSA has undergone only two major reauthorizations since its original enactment in 1976. The first was in 1996 with the passage of the Sustainable Fisheries Act (SFA).^[31] Among other important amendments, the SFA strengthened requirements to prevent overfishing and rebuild overfished stocks, established standards for management plans to include objective and measurable criteria for determining stock status, added three national standards to address vessel safety, fishing communities and bycatch, and introduced habitat as a key component in fisheries management.^[32] The second time Congress reauthorized the MSA was in 2006 with the MSA Reauthorization Act.^[33] This reauthorization established annual catch limits and accountability measures, promoted market-based management strategies, including limited access privilege programs such as catch shares, strengthened the role of science through peer review, the SSC and the Marine Recreational Information Program, and enhanced international cooperation by addressing illegal, unregulated, and unreported fishing and bycatch.^[34]

For the last several years, a major reauthorization of the MSA has been debated and pursued, most recently through a Republican-controlled Congress, with the stated goal of increasing flexibility and strengthening the science underlying its rules. Timely, comprehensive, and accurate data, coupled with greater flexibility in interpreting it, was intended to lead to more effective management of federal waters by the eight councils assigned this vital responsibility. At their core, the amendments were intended to result in longer fishing seasons and increased catch limits, for recreational and commercial fisherman alike, and all while preserving a healthy and sustainable population of marine life. However, with commercial fisherman, recreational fisherman, the boating industry, conservationists, and other passionate and highly participatory stakeholders having different perspectives on the potential impacts of the proposed amendments versus what was needed, and with just weeks until the newly elected Congress was to be sworn in, the meat and bones of the proposed amendments were abandoned, leaving just a few minor ones remaining. These amendments, signed into law by President Trump on December 31, 2018, were far from the major reauthorization being called for. Now, with a divided 116th Congress, the MSA is back on the table and stakeholders are already making their voices heard.^[35]

Lack of Consensus

Although many diverse interests are involved, there is some consensus, including that overall the MSA has been a great success and that healthy and sustainable fisheries are in everyone’s best interest. There is also agreement that environmental stressors that have nothing to do with overfishing are changing marine ecosystems more quickly and in ways not contemplated by the original or current MSA. Ocean acidification, warming temperatures, invasive species,^[36] and shifting fish distributions, just to name a few, have further complicated the fisheries assessment process.^[37] Moreover, technology has vastly improved since its original passage in 1976 and even since the last reauthorization in 2006. Global positioning systems, cellular telephones, and sonar are standard equipment these days allowing even the casual weekend warrior to catch more fish and report back to regional councils on details such as marine conditions, species type, size, and location. While increased real-time data is desirable, this “citizen science” must be held to the same reliability requirements as all other scientifically collected data in order for it to be considered.^[38]

There is also general agreement that the regional council framework is preferred. Local stakeholders are perceived to be better positioned to make area-specific decisions regarding their fisheries than government officials in Washington, D.C. However, there has been some apprehension that council authority has increased over time to the point that it may be raising constitutional issues regarding the manner of appointment and removal.^[39]

Most also agree that use of the best-available, objective, timely, and peer-reviewed scientific information is necessary to make educated decisions on acceptable biological catch, optimal yields, season opening dates, rebuilding timelines, and other critical fisheries management factors.^[40] While more data often yields better results, if there is one defining theme of environmental and natural resources law, it may be that of scientific uncertainty. Science can rarely be 100% certain or proven. Kyrptonite to lawmakers, scientific uncertainty can lead to paralysis-by-analysis or, worse, total shutdown of an effort to pass or amend a much-needed law or rule. The poster child for unnecessary delay in the pollution context may be climate change, with time and space separation between cause and effect simply too great to result in bipartisan action. In the wildlife context, it could be our marine fisheries. Assessing the health of an ecosystem submerged two miles underwater is difficult and accurately quantifying the number of moving and migrating fish is nearly impossible. No matter how much the MSA scientific standards are strengthened, uncertainty will always be present. However, as stated in Principle 15 of The Rio Declaration on Environment and Development, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation where the threats of damage are serious or potentially irreversible.^[41] However, even the Rio Declaration’s precautionary principle recognizes the critical role of economics in decisionmaking.

Finally, there is consensus that commercial and recreational fishing are very different. Ironically, it is this agreement that is at the very core of stakeholder disagreement. For the most part, the MSA seems to be working better for commercial fishermen than it is for recreational fishermen who believe the law does not adequately distinguish between the two distinct industries.^[42] Recreational fishermen want the MSA to recognize the importance of recreational fishing as a separate industry and adopt more equitable regulations that reflect its rapidly increasing size and importance.^[43] The recreational fishing lobby, which includes not just fisherman but also boating, fishing gear manufacturers, and others, believe the current system for establishing limits may be skewed in favor of commercial fisheries leading to unfairly shortened seasons and catch limits for recreational anglers.^[44] Other stakeholders, such as charter fishing, may fall somewhere in between, with conservation groups generally opposing any increase in overall catch allocations or perceived weakening of management plan criteria without clear and convincing data to support it.

The economic impact of the two industries can be very different and is often region specific. In the North Pacific, for example, the proportion of value added to the economy by commercial fishing in shared fisheries is approximately 91% compared to 9% by recreational fishing.^[45] In the Gulf of Mexico, it is quite the opposite, with the proportion of value added to the economy by commercial fishing just 3% to 97% by recreational fishing.^[46] Therefore, whether the makeup of the councils, and more importantly the season lengths and catch allocations, should and do proportionally reflect this area-specific economic reality is at the heart of the current conflict.

Conclusion

The MSA is unquestionably one of the most successful conservation laws in the world, balancing economic, social, and ecologic interests with bottom-up input from stakeholders and top-down oversight from regulators and scientists to ensure the sustainability of our fisheries and marine ecosystems. Since its last major reauthorization almost 13 years ago, the tension between commercial and recreational fishing has only increased, with rising concerns over the fair allocation of catch limits. Changes in our environment are also occurring with increasing temperatures, ocean acidification, and shifting fish habitats. Florida, known as the “fishing capital of the world” because of the diversity of sport fish, warm weather, unparalleled tourism, and year-round fishing is regulated by two regional councils under the MSA and will be directly affected by any future amendments. However, the time is now to reauthorize the MSA to reflect the changing reality of the fishing industry and our world. The process will be anything but simple though, not unlike the oceans themselves, with the pursuit of tight lines and full nets as enticing as it is complex.

This column is submitted on behalf of the Animal Law Section, Matthew Dietz, chair, and Ralph A. DeMeo, editor.