Council Fires

Is our system of regional fisheries management councils perfect? Nope. Is it unconstitutional? You better hope not.

Idon’t usually write follow-ons to previous columns. But when the subject is of great importance to recreational anglers, extra attention is warranted.

In my last column, we discussed a case in front of the U.S. Supreme Court, Lorper Bright v. Raimondo, which anti-government groups see as a tool to help them to overturn the “Chevron Deference.” This deference is a precedent that allows government agencies to impose regulations needed to implement legislation passed by Congress, even when those regulations are not specified in that legislation. Opponents term this “government overreach.” If they are successful, our fisheries agencies and management councils would have to wait for Congress itself to define the rules that govern the resource.

Now two commercial fishermen have sued the Gulf of Mexico Fishery Management Council and the federal government, saying that by

“delegating fisheries regulation to those councils, the federal government is violating the Constitution’s structural protections, removing democratic control, and placing commercial fishermen at the mercy of unaccountable bureaucrats.”

Well, maybe these folks are card-carrying members of the Federalist Society. (Or maybe their lawyers are.) They are clearly unhappy with some of the regulations promulgated by the GMFMC. But is attempting to totally dismantle the regional fishery management council (RFMC) system the way to go? This definitely enters the “be careful what you wish for” realm. Here’s why.

public input

There are any number of ways to try to change council decisions through public participation. That is one of the parts of the RFMC process that works. Not only can the decisions being made have different outcomes through consistent public input, but council members also have to go through a public appointment process, and pushing for members who are at least sympathetic to one’s cause is part of that process. (My own appointment to the New England council in 2004 took a number of attempts.)

The key here is that RFMC decisions are public, which sometimes makes them painfully slow. For example, when the New England council made a major change to the Multispecies Plan, we held 64 public meetings, mostly to get input. We were still criticized for rushing the process.

If this new litigation is successful, what are the likely outcomes? If the council system is deemed unconstitutional, regulatory authority would revert to Congress. But the reason

that the RFMC system was created in the first place was that Congress did not think it could efficiently handle day-today management issues.

UNACCOUNTABLE BUREAUCRATS

Perhaps the plaintiffs think that if you eliminate the RFMC system, the fishery management process would simply be handed over to NOAA Fisheries. NOAA Fisheries ultimately implements the current regulations crafted by the RFMCS anyway. So, couldn’t NOAA just make regulations that would do the job without all the complicated and contradictory input from resource users? Sure it could, but wouldn’t that make those “unaccountable bureaucrats” even more unaccountable?

I negotiated with the Canadian Department of Fisheries and Oceans as a council member and learned a little bit about how decisions were made there. Unless you happened to be a favored resource user, you had very little chance to be heard. I saw firsthand that public input was largely ignored (or accepted with knowing nods and then tossed aside). They were the scientists, and they knew best.

Maybe that is a system that folks think they want. It would certainly be more efficient. NOAA Fisheries would not have to spend countless hours listening to public input and incorporate that into the regulations. If both this case and Lorper Bright v. Raimondo are found in favor of the plaintiffs, there will be little for the fishing public to do but vote for elected officials.

I support science-based fisheries management, but public-user input is part of that process. Fisheries councils are our best way to capture that input. Is this the most efficient model? No, it is not. But neither is our form of government. It should also be noted that council members are appointed for three-year terms, with term limits, and can be replaced.

The debate surrounding the role of RFMCS and public input in fisheries management raises critical questions. While there are inefficiencies in the current system, the prospect of dismantling the RFMCS could lead to unintended consequences. Finding a balance between efficiency and democratic control remains essential. Ultimately, preserving public-user input through RFMCS, imperfect as they may be, ensures a more inclusive and informed approach to fisheries management, one that aligns with the principles of science-based decision-making and democratic representation.

Let’s face it; the current system is not perfect, but eliminating the public from the process is not the answer.

The key here is that RFMC decisions are public, which sometimes makes them painfully slow.