It's the Elected Officicals

By Sean McKeon, President of the North Carolina Fisheries Association

Monday, February 25, 2008

The commercial fishing industry continues to suffer at the hands of a management regime which refuses to apply regulatory burdens in a fair and equitable manner as required by law. The reason the Agency, in particular, and the various councils under its foot are uninterested in addressing clear inequities, aside from a decidedly pro-recreational and radical environmental bent of many of their hierarchy, is they realize the court system of this nation will, in almost every instance, side with the Agency where Congress has neglected to clearly define its instructions regarding fisheries management. Without deep pockets to challenge the Agency’s decisions, the industry is far down the list of priorities of this overblown and top heavy bureaucracy, which is, sadly, mostly focused on ecosystems and plankton to the neglect of the human element of our nation’s fisheries.



The Agency knows all too well that federal courts will bend over backwards to accommodate them in most instances involving mariners and fishermen. The ALJ courts, in particular, are inherently corrupt and mock justice by design; an executive branch Agency leases judges both of which are ultimately paid from the same trough, while appeals are heard by the Agency itself. Alexander Hamilton wrote in Federalist 78 “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers. And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments…” Today we witness that union as a matter of fact and it has become the rule and not the exception.



At the end of the day, however, the elected officials of this nation are ultimately responsible for the deleterious effects of a court system and a management regime they have the constitutional authority to rein in and for whatever reason refuse to do so. Again Hamilton, “The legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” The fundamental principle undergirding Hamilton’s remarks is clear, the people, through their elected representatives, have every constitutional right and duty to reign-in out of control courts and agencies that view the courts as allies in a war on one sector of the public. When elected officials fail to do so, the duty remands to the citizen who needs to exercise it at the ballot box.



In NCFA’s snapper/grouper lawsuit, for example, a federal judge ruled that science need not be the best possible, merely best available. As if waving some glorious flag of victory employees of the Agency and certain Council members proudly recite the judge’s admonition allowing them (the so-called professional managers) to produce scientific garbage, call it best available, and use it to regulate fishing businesses into oblivion. It is pitiful to imagine those charged with managing our marine resources holding themselves to such a low standard, but in instance after instance that is precisely what they do. Of course they would not admit to that, but rather insist they are doing what the law requires them to do. One might think that there would be more of an outcry, however, from those who are ultimately blamed for the slipshod science they are forced to use.



The data, we are told, tells us there are no sharks while the industry catches hundreds of thousands of pounds over the quota in a matter of days, dogfish continue to devour whatever is in their path but stock assessments prohibit a substantive fishery from developing, red drum and striped bass are plentiful but data (and Presidential politics) make their commercial utilization a thing of the past, on and on ad nausea. Congress should determine if this is what they had in mind when they wrote Magnuson/Stevens.



Re-writing and amending Magnuson is paramount and our industry will not survive without elected officials dedicating themselves to that task. >From its arbitrary rebuilding schedules, to the scientific malpractice justifying harsher regulatory burdens on our industry, the MSA is in serious need of an overhaul. Tinkering with one fishery or another will not fix what is inherently wrong with this law, which is an unconstitutional delegation of authority to an agency of the executive branch. It is Congress’ responsibility to be accountable to the people of this nation. If and when they delegate authority (especially authority to regulate public trust resources) it should never be an open-ended delegation.



The National Marine Fisheries Service ought to be disabused of the notion that its authority over the American public’s resources is sacrosanct. Only those who have the power to rewrite large sections of the act can erase the ink on what is in fact an arbitrary and capricious piece of legislation, and only those who pull levers in voting booths can see that they do.



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TAC’ation without Justification

By William (Bill) Foster,

Monday, February 25, 2008

TAC is an acronym for Total Allowable Catch. The three regional fishery management councils on the Atlantic coast annually recommend a TAC for each fishery management plan (FMP) requiring one. This is the case for most fisheries which have both a commercial and a recreational component.



Each council routinely makes two assertions to justify setting the TAC. These are that the TAC is:

--necessary to protect the fish (prevent over-fishing)

--based upon the best scientific information.

Each council further asserts that its actions are mandated under the Magnuson-Stevens Act. None of these assertions is true.



Total Allowable Catch implies that any amount of fish up to the TAC may be caught but none over the TAC. In truth, there is no limit on the amount of fish which may be caught under this TAC. There is only a limit on the amount of fish the commercial sector may catch.



Each TAC is calculated as the amount of landings which if not exceeded would prevent the stock from being over-fished. The TAC is then split between the commercial sector and the recreational (recreational + charter) sectors. The commercial fishery is managed under a quota through vessel permits, logbooks, trip tickets, and weekly dealer reports. When the quota is reached the fishery is closed for that year. Any landings over the quota are deducted from the next year’s quota. The recreational fishery is under a TAL (Total Allowable Landings) which is monitored by surveys but not on a real-time basis. The fishery is not shut down if the TAL is reached and any overage for the year is not subtracted from the next year’s TAL. In other words, the recreational landings may exceed the Total Allowable Landings by an unlimited amount. Because of this, the total landings may exceed the TAC by an unlimited amount.



Because the Total Allowable Catch is not the total catch allowable, The TAC does not limit the catch in such a way that it can prevent overfishing. The total catch is in fact unlimited. Because the TAC is a false label for something undefined it can not be based upon science.



In another case of blatant misrepresentation, the SAFMC and the NMFS have allowed and continues to allow the “sale of recreational fish” under several FMPs. By definition under the M-S Act, any fish which is sold or is intended for sale is commercial fish. Furthermore, the act of fishing which takes it is commercial fishing. The Council has chosen to have a permitted commercial fishery and a non-permitted commercial fishery. No records have been kept on this non-permitted fishery. Consequently all landings and all effort data collected since the implementation of these plans is cross contaminated to an unknown degree.



For a plan such as snapper grouper, mislabeled data has been subjected to statistically invalid analysis to produce a TAC which is not what it says it is. The TAC can not prevent over-fishing which is the mandate used by the council as an excuse not to address other mandates.



Federal mandates, the prevention of over-fishing, and best available scientific information are not reasons for using a TAC in these plans. They are poor excuses for placing a disproportionate share of the regulatory burden on one sector while ignoring the welfare of the fish stocks.

Bill Foster
Cape Hatteras NC






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