No Free Lunches

Commercial fishing interests want taxpayers to take on the cost of observers on their boats.

The commercial herring industry along the East Coast has complained for years about a requirement to carry federal fisheries observers whose job is to try to record the bycatch of nontarget species. Observers allow fisheries managers to try to calculate the overall impact of the fishing method being observed. The commercial fishing industry has pushed back against this requirement. It doesn’t like the intrusion and the fact the government is looking over its shoulders. The industry is sure that observers are there to catch the fishermen doing something wrong. Certainly, smaller boats don’t like carrying an extra person who might “get in the way.” And they have always complained about having to pay the day rate for the observer.

Let’s be clear: There are a number of ways that managing fisheries require fishingindustry participation. Most allow managers to assess the status of the resource being sought. These observers are not there to tattle on the boats they’re observing; they’re there to measure bycatch so that we can protect nontarget species, including species targeted by other parts of the commercial fishing industry. In the midwater trawl herring fishery, there is bycatch of river herring, shad and haddock. For most of these species, there are catch caps that, when reached, shut down the fishery in areas where the catch occurred. Those need to be monitored to enforce the regulation.

Now some commercial users want to have the government (feel free to read that as the taxpayers) pay for these observers and have filed a lawsuit against the Secretary of Commerce to this end. But this industry already pays next to nothing to use and profit from our common property, the resource. In general terms, it is likely that the average recreational angler pays more in fees per pound of fish landed than a commercial user does. Why should the commercial guys get a free lunch?

Loper Bright Enterprises, the plaintiff, has been able to successfully petition the US Supreme Court to hear this case. What’s most concerning is that it now has the Cause

of Action Institute behind its legal efforts.

The Cause of Action Institute calls itself an “oversight group advocating for economic freedom and individual opportunity advanced by honest, accountable and limited government.” This group sees the issue of observers as an example of government overreach.

It also sees this lawsuit as a vehicle to try to overturn a number of other federal government actions allowed under a previous case heard by the Supreme Court, Chevron v. NRDC. The court’s decision on that case gave the government the authority to take actions unspecified in a regulation when it is deemed that such actions are needed to fulfill the requirements of the regulation. This “deference” afforded to government agencies in the interpretation of statutes is now recognized as the “Chevron deference.” In the case of fishing, the Chevron deference ensures that NOAA Fisheries has the data to properly assess the stocks being managed.

So, this lawsuit is no longer about the herring fishery. It is about making it harder for government to enforce regulations when statutes are not specific in how those regulations can be implemented. This case will have implications and impacts way beyond fish and natural resources.

Unless specific details are spelled out in an action passed by Congress, then any action deemed government overreach would be subject to challenge. If this case is found for the plaintiff, it will make a lot of lawyers very happy, but it will be a step backward in

This lawsuit is no longer about the herring fishery. It is about making it harder for government to enforce regulations.

the effort to sustainably manage our common fisheries resources.

I get it that people don’t like the government telling them what to do. There are a lot of us who don’t like the government telling us that we have to pay to monitor commercial fisheries. There are a number of ways to make this work better. For some quota-managed fisheries, a small percentage fee of landed value is assessed to help cover management costs. Maybe this needs to be more universally applied.

My sense has always been that the courtroom is not the place to manage natural resources. No disparagement intended toward the judicial process, but good resource management has to be science-based. The commercial use of common property resources should not be based solely on a free lunch.