Senator Snowe's Bill on Fisheries Would Open a Wide Loophole

by Rebecca Bratspies

December 21, 2009

On December 9, Senator Olympia Snowe (R-ME) introduced S. 2856, a one paragraph bill that would quietly gut a key portion of the Magnuson-Stevens Act (MSA) by dramatically expanding a narrow exception to one of the Act’s central mandates. Were it to pass, the bill would mark a significant step in the wrong direction for United States fisheries policy. The bill, the "International Fisheries Agreement Clarification Act," is co-sponsored by interim Senator Paul Kirk (D-MA).

The MSA requires fisheries managers to impose scientifically defensible annual catch limits (ACLs). For fisheries identified as overfished, the Act immediately ends overfishing, and requires that the fish stocks be rebuilt as rapidly as possible (with 10 years as the outside limit.)

Section 304(e)(4)(A)(ii) of the MSA creates an exception for fisheries covered by international treaties from this “rebuild in 10 years” requirement. If enacted, Senator Snowe’s amendment would expand this exception to include Maine’s groundfisheries, which are covered by an informal understanding between Canada and the United States. Worse, the amendment would also exempt any other fishery for which there was a comparable international understanding.

There is a reason the MSA limits its exception to treaties. Under our Constitution, treaties are the supreme law of the land. They are negotiated at the presidential level, and are ratified by a two-thirds vote in the Senate. Memoranda of Understanding, (MOU) by contrast, are often used when the parties cannot or do not want to create legally binding commitments. That is exactly what happened in the Gulf of Maine. The “Understanding” Snowe is so concerned about grows out of a document titled Guidance on Options, which was produced by a bilateral government-industry committee.

If the MSA’s treaty exception is broadened to include this kind of “Understanding,” the exception will swallow the rule. Many of our most significant fisheries overlap with fisheries under Canadian or Mexican jurisdiction. Agencies charged with managing transboundary resources routinely enter into MOU in order to coordinate their activities. Indeed, the United States and Canada have a multitude of such “understandings. They make good management sense, and ensure that conservation efforts do not work at cross purposes.

If all it takes to get out of having a stricter ACL is an “understanding” between the United States and either Canada or Mexico, these MOUs would become a political tactic. We could expect such deals to proliferate. Senator Snowe’s expressed rationale for her amendment is that, as is, our fishermen face “potentially devastating consequences in both the groundfish and scallop industries.” Therein lies the rub.

Snowe’s explanation cuts to the heart of the problem—a lack of political and social will to deal with the consequences of the hard choices we face. Fisheries have been mismanaged for decades. There are too many boats and too few fish. There is no way to solve that problem painlessly, but the best choice -- and the one dictated by Congress's own law-- is to employ scientifically-based catch limits. Facing angry constituents, many politicians are too tempted to instead take the easy road and allow the overfishing to continue, regardless of the long-term consequences.

Indeed, other politicians are also backpedaling from the MSA’s firm commitment to sustainability. Congressman Frank Pallone and Senator Charles Schumer have introduced the “Flexibility in Rebuilding American Fisheries Act.” The Act would extend the “rebuild in 10 years requirement” based on a host of considerations. Again, the exceptions would swallow the rule.

Flexibility is certainly a desirable attribute in regulatory programs. Along with transparency, it is what keep government from morphing into Kafka’s nameless, faceless bureaucracy. But, flexibility about the wrong things will ensure that we keep repeating past mistakes. The MSA rebuilding requirement offers us a way out of this destructive cycle. Let’s just hope that Senator Snowe’s proposal is not a harbinger of things to come.

Update: Note, a companion bill in the House, H.R. 4369, was introduced last week by Representatives Barney Frank, Walter Jones, Chellie Pingree, and John Tierney.

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Rebecca M. Bratspies is Professor of Law at the CUNY School of Law, New York, New York.

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