When Congress adopted the Magnuson Fishery Conservation and Management Act (FCMA) in 1976, it completely reshaped the way in which the U.S. managed its fisheries. The act (now known as the Magnuson-Stevens Act) extended the limit of national jurisdiction over fisheries from 12 miles to 200, and established eight regional councils—representing New England, the Mid-Atlantic, the South Atlantic, the Caribbean, the Gulf of Mexico, the Pacific, the North Pacific and the West Pacific—to oversee, develop and implement regional fishery management plans.
In the years since, fisheries management in the U.S. has not been a complete failure. More than half of the known, managed, major fish species in U.S. waters are not overfished. But critics might argue that to declare that a success would be to set a very low bar; and there is also no avoiding the occasional and spectacular disasters that have occurred on the councils" watch, most notably the collapse of the groundfish stocks off New England in 1992.
A 2003 report funded by the Pew Charitable Trusts argued that the regional councils contained a number of fundamental flaws.
For one thing, said the report, the councils have two mandates that are fundamentally in conflict: They decide both how many fish can be caught and who can catch them. Because larger catches are easier to divide up among competing interests, the councils" responsibility to allocate catches, the report continued, "encourages them to set lax fishery limits, undermining conservation."
Perhaps the most contentious element of the council system, and the one with which environmentalists take greatest issue, is the councils" composition. According to the Stanford report: "More than 80 percent of the citizens who are appointed to the councils represent the fishing industry." Citizen members are selected by the Secretary of Commerce of each constituent state from a list submitted by that state’s governor. The FCMA stipulates that, when submitting the list, the governor must, "to the extent practicable," consult with "representatives of the commercial and recreational fishing interests of the State"; and, when selecting voting members from the list, the Secretary of Commerce must, "to the extent practicable, ensure a fair and balanced apportionment, on a rotating or other basis, of the active participants (or their representatives) in the commercial and recreational fisheries." But the act says nothing about requiring the appointment of anyone representing conservation interests or the public at large.
"It all dates back to when the councils were set up," says Lee Crockett, executive director of the Marine Fish Conservation Network (MFCN). "The philosophy at the time was to phase out foreign fleets and develop the U.S. fishery. In that context, it makes sense to have fishermen on your councils, because who is better placed to develop a fishery than fishermen? The question, however, is whether those same people should be solely responsible for managing those fisheries today."
Phil Kline, senior fisheries policy analyst for Oceana, thinks not. "For many, many years since 1976, we have had the equivalent of the fox guarding the henhouse. It is very difficult for someone who makes a living from catching and selling fish to take advice on the need to slow down and reduce the catch." The 1992 groundfish disaster, he says, was a classic example: The New England council’s scientific committee repeatedly warned of disaster ahead, but the council itself took no action until too late.
However, Kline argues, "To just say "Management councils have failed" is unfair. We are seeing progress nationwide. We have seen some precedent-setting changes in philosophy. For example, the North Pacific council has closed off 400,000 square miles around the Aleutian Islands to bottom trawling."Almost without exception,however, councils have focused on extracting the maximum sustainable yield to the exclusion of all other considerations.
Draft legislation introduced by Rep. Nick J. Rahall (D-WV) would go some way toward addressing that. The bill, the Fisheries Science and Management Enhancement Act, follows the path established by the North Pacific council; a scientific committee would establish an allowable biological catch—the total amount of a given species that could be extracted in a year, directly or through by-catch—and the council would be obliged to abide by that figure and to allocate quotas solely within its constraints. And those allocation decisions would be made by a much broader cross-section of the public, representing more than commercial and recreational fishing interests.
Whereas the independent Pew Oceans Commissions advocated morphing the regional fishery management councils into more ecosystem-based "ocean ecosystem councils," the subsequent U.S. Commission on Ocean Policy recommended leaving the system largely as is but accentuating the role of science over politics. And while the sympathies of many in the environmental community may be with the former, there is widespread acknowledgment that the latter is likely to be closer to the end result.
"There are definitely some activists who would like a completely different system," says Crockett. "But there is a recognition that, politically, that is very hard to do. The councils are here to stay. We need to make them work."