Where Have All the Fishes Gone?

by Carl Safina, PhD

Originally published in Issues in Science and Technology, vol. 10 no. 3 1994.

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Simple changes to existing federal law could save billions of dollars and thousands of jobs.

In the late 1960s and 1970s, fishing vessels from distant nations began arriving in force near the coast of North America. They came primarily from Eastern Europe, the U.S.S.R., and east Asia. And they came with fishing power beyond anything Americans had ever used. Equipped to fish for months at a time and with the finest electronic fish-finding gear available, cooperating fleets of catcher boats systematically scoured coastal waters, working with floating factories (affectionately referred to as "mother ships") capable of processing phenomenal quantities of wild fish into seafood products at the scene of capture. Not all of this occurred somewhere over the horizon. I once ran my own boat past a Polish vessel processing squid so close to shore that crewmembers could watch the Americans in their colorful swimsuits playing in the surf. Neither the fish populations, nor the relatively small-scale coastal American fishers of the day, could last long under the onslaught.

Reacting on behalf of American fishers to the rapid devastation of many fish populations on the continental shelves of North America, Congress in 1976 passed the Magnuson Fisheries Management and Conservation Act. The Magnuson Act, as it is often called, created federal authority to manage fisheries, and claimed the area between 3 and 200 miles from shore-- two million square miles of ocean-- as the Fishery Conservation Zone (later changed to the Exclusive Economic Zone, or EEZ) of the United States.

Congress' major purpose in enacting the Magnuson Fisheries Act was twofold: 1) re-Americanize the fisheries by controlling or eliminating foreign fishing along our coasts, and 2) conserve and restore the fish. The first goal was accomplished with Yankee efficiency. But with a few exceptions, effective work toward the second goal has never really kicked in. This is largely because deficiencies in the Act remain significant. The Act is up for reauthorization this year, and the time is ripe for some changes in order to end overfishing in U.S. federal waters. Foremost, the Act must be amended to a) compel fishery managers to end overfishing and restore depleted living resources, b) empower fishery managers to conserve and restore habitat, c) erect a national policy for the minimization of incidentally killed bycatch.

The Magnuson Act's two major purposes have in practice proven incompatible. To aid re-Americanization and domestic fishery development, the federal government extended to American fishermen a protective umbrella of loan guarantees and investment incentives that allowed them to rapidly expand their fishing capability, which soon matched that of the recently-eliminated foreigners. In retrospect, these well-meaning incentive programs were disastrous to both fish and fishers, especially independent fishers, because they encouraged investment in fishing by people with no prior history or stake in fisheries. This increased investment resulted in tremendous overcapitalization; far more fishing power than needed to capture the available fish in sustainable quantities, too much fishing power to allow all the players to remain reasonably profitable, and too many boats chasing too few fish. Overfishing and fish habitat loss have continued to be chronic and widespread, and attempts to grapple with them have been too little or too late in many instances.

Economic, Social, and Ecological Failure Under the Magnuson Fisheries Act

A spectacular array of fishery management failures in U.S. federal waters provides many examples from which to illustrate the issue of overfishing within the context of the Magnuson Act. Overfishing can be very roughly defined as taking more fish than the fish population can naturally replace (this working definition is very narrow, because sustainably catching the entire "surplus" production of one species may have the effect of starving another important species that relies on the first for food, or other ecological effects, and it assumes the population has not been previously depleted to a low but stable level). Fishes whose populations are at their historic lows because of overfishing include some very familiar table fare: swordfish, several species of tunas, red snapper, cod, several types of flounders and groupers, and others. Summer flounder, yellowtail flounder, red snapper, and swordfish populations are now capable of producing only 30 percent, 15 percent, 12 percent, and 40 percent, respectively, of their long-term potential yield. Combined landings of reef fishes like groupers and snappers fell more than 80 percent during the 1980s. While these species are still available in markets and restaurants, few consumers understand the shifting market or can see that their renewable resources are being mined. For example, the swordfish's Atlantic breeding population has been halved since the 1970s, and the average size of swordfish caught is now only about half the size at sexual maturity. In other words swordfish are now typically caught before they can breed. Few consumers have been brought such information, but it has implications for pricing, quality, consumer ethics, and future options in their marketplace.

The Magnuson Act's failure to conserve the fish for the fishers is perhaps most symbolically tragic in New England, where much of the impetus for enacting the Magnuson Act originally occurred. The cost of overfishing to New England was estimated by a Massachusetts task force in 1991 at $350 million annually from lost potential catches, and 14,000 lost jobs. The worst fishery management debacle in New England has involved a group of fish known collectively as groundfish, which include such species as cod, pollock, haddock, redfish, and flounders. They are called groundfish because they are found deep, hugging the ground. Their name might equally apply to the manner in which they have been ground down by overfishing. These fish were once so prolific that their abundance helped spur European exploration and settlement of northeastern North America. Explorer John Cabot described the Grand Banks around the year 1500 as so "swarming with fish [that they] could be taken not only with a net but in baskets let down with a stone." About a hundred years later, a colonist who had come to partake wrote reverentially of the "Cod, which alone draweth many nations thither and is become the most famous fishing of the world." This swarming bonanza of riches has been reverse-siphoned into a welfare drain by managerial negligence.

The Magnuson Act's inability to provide an effective framework for preventing the problems it was ostensibly created to prevent is highlighted by comparing New England's groundfish situation with that of neighboring Newfoundland. Canada lacks a law similar to the Magnuson Act, yet Canadian and New England fisheries suffered a remarkably similar pattern of ills brought first by the foreign fleets and then by domestic mismanagement derived from denial, over-optimism, and failure to apply a margin for error. In Newfoundland, the Atlantic cod is now commercially extinct. Canadian federal fishery officials who for years were in a state of denial, finally closed the failing fishery in 1993-- an action unimaginable only a few years ago. The situation is costing Canada an estimated 42,000 jobs and an estimated 1.8 billion dollars in unemployment payments. Payments or not, a way of life and the seafaring knowledge that went with it-- a culture-- is being destroyed. One fisherman was quoted lamenting, "The cod to us was like the buffalo to the plains Indians."

In adjacent U.S. waters, the Magnuson Act failed to prevent a parallel groundfish catastrophe. New England cod are at their lowest levels ever, and drastic economic dislocation is well underway. Atlantic halibut are commercially extinct. Though fishing for them is allowed, no one tries. There are so few Atlantic halibut left that they do not even appear in the table of landings in the National Marine Fisheries Service' (NMFS) report on the Status of Fishery Resources of the Northeastern United States. Haddock are now also commercially extinct in New England. They are too rare in the Gulf of Maine to support directed fishing. On Georges Bank, NMFS suspended haddock fishing by emergency action in January 1994 after New England landings of the long beleaguered fish plunged 66 percent in one year. The Northeast regional director for the National Marine Fisheries Service told the mid-Atlantic Fishery Management Council (one of eight regional councils that develop fishing policies and regulations) that in his opinion the Gulf of Maine should also be closed to haddock catches. In the Gulf of Maine, no haddock appear in the net in 60 percent of the fishing trips. An allowance of five hundred pounds of haddock per trip has been imposed, not so much to protect haddock as to prevent any protection of the few remaining haddock from interfering with fishing activities aimed at other depleted species like cod and flounder (the New England Council wanted the haddock trip limit to be 5,000 pounds, but the Secretary of Commerce disapproved this measure. NMFS requested the council to consider "a meaningful trip limit for haddock" and to consider whether any haddock at all should be landed). NMFS' regional director believes that the five hundred pound haddock allowance may help to suppress recovery of the species in the Gulf of Maine. The Georges Bank haddock population is now one tenth that which is required to produce the "maximum sustainable yield."

Similarly, the situation with yellowtail flounder, which was once the backbone of fishing ports in southern New England, has been termed "a disaster" in that region by Dr. Vaughan Anthony, chief scientist in the National Marine Fisheries Service's Northeast center. In a January 1994 advisory report on the status of New England fish populations, the Service stated that for southern New England yellowtail flounder, "The fishing mortality rate has been extremely high... currently for every 100 fish alive at the beginning of the year, only 8 survive to the beginning of the next year. Spawning stock biomass [the aggregate weight of the live breeding population] in 1992 was at a record low level." Unsurprisingly, breeding success is "the poorest on record." With the highly unusual use of an exclamation point in a parched scientific report, the Service states, "The stock has collapsed! Fishing mortality on this stock should be reduced to levels approaching zero. This includes discard mortality." Discards of flounders caught too small are at a record high. The last big year class of juvenile yellowtail flounders was in 1987, and 60% of the catch of fish from this year class was discarded dead, because they were too small to sell when they were caught. The report also notes that "Spawning stock biomass declined 94% between 1989-1992." In January of 1994, Dr. Anthony told the Mid-Atlantic Fishery Management Council that the allowable catch should now be zero. Yet the professionals and scientists in the Fisheries Service must defer to the political appointees on the fishery management councils who actually set fishing policy.

Despite all this bad news and trouble, the New England Fishery Management Council's recently adopted New England groundfish plan merely aims to halt-- but not to reverse-- these declines by reducing fishing mortality of some species over the next five to ten years (depending on species) by fifty percent. If it works, the fishes will no longer be overfished, but neither will they be rebuilding to more productive levels of abundance. In addition to fish, shellfish have also been hammered. Lobsters in the Gulf of Maine are officially deemed "overexploited," and NMFS says New England sea scallops are "at or near all-time lows." The scallop management plan also will take years to end overfishing and does not address rebuilding. As it stands, we can look forward to intentional maintenance of the lowest-ever levels of these "renewable" resources. The Commerce Department has recently proposed $2.5 million in assistance to Northeastern communities hard hit by fishing industry problems. This first drop in the fish relief bucket-- unprecedented in the U. S.-- signals the beginning of an ominous siphon-like reversal in the economic contribution that fishing can and should be-- but is not-- making to the economy of the northeast states.

The problems are by no means confined to the northeast. The North Pacific fleet of factory trawlers (sea-going factories that both catch the fish and process them on board) is another severe example of fishery management failure under the Magnuson Act. Encouraged and invited by the North Pacific Fisheries Management Council's open-to-all-at-no-fee policy, the number of factory trawlers mining the waters off Alaska grew from 12 in 1986 to 65 in 1992. These ships often catch 350,000 pounds of fish in a single haul (one of the trawlers reportedly can catch over a million pounds of fish in one tow of its net). The target fish is walleye pollock, and landings of 3 billion pounds (valued at $324 million in 1992) make this the largest single-species fishery in the world. This "American" fleet has been largely funded by Japanese and Norwegian investments. Free and wide-open access into this fishery is still allowed by the regional fisheries management council. The pollock are already showing signs of exhaustion, and concurrent with the development of the fishery has been a decline in animals that rely on pollock for food. Sea lions, and several seabirds have undergone population declines of 50 to 90 percent in the last twenty years. The ultimate predator is now starving itself as well. Two of the trawlers and their parent company went bankrupt in 1993. One Seattle-based trawler company owner recently stated "I fear that more than half of the boats might teeter on the edge of bankruptcy... taking with them 4,000 jobs. These boats were mortgaged on the assumption that they would fish 10 months a year. They now fish barely five." Some observers speculate that a third of the fleet would have to leave the fishery before it can become economically productive again. The Council's laissez-fair policy now appears to have been a "losers take all" proposition; destroy the resource and put yourself out of business simultaneously. The Council's open-access mentality has also resulted in a vastly overcapitalized fishery for halibut. This time, in order to protect the fish as the fleet swelled without control to 5,500 boats, the season was reduced to just two days per year; one in spring and one in fall. During these 24-hour marathons, the quickest, most hazardous, and most wasteful methods are employed to catch the fish. The result: every 24-hour opening sees fatalities, sinkings, and enormous amounts of spoiled fish, and consumers virtually never see fresh halibut. Now that the problem has gotten out of hand, the Council plans to institute quotas, beginning next year, that would allow boats to fish any time they want until they fill their individual limit for the year. But in order to reach the point at which all halibut boats could fish throughout the year for a profitable amount of fish, some observers estimate that roughly 95 percent of the boats may have to leave the fishery.

The ongoing inability of the Magnuson Fisheries Act to provide a reliable framework for preventing systematic depletion is also illustrated by Atlantic sharks. Between 1976 (when Magnuson was enacted) and 1990, the authorized regional fisheries management council never got around to producing a shark management plan. It was not compelled by the law or by custom to do so. Nor was any federal data collection program on shark landings or shark population sizes or trends begun until the late 1980s, when overfishing for sharks was already in full swing. By then, unsustainably large numbers of fins and tails were being exported to China for soup, and the live animals (minus their fins and tails) dumped overboard to sink to the bottom and die. In 1989 the National Marine Fisheries Service scrambled to tack together a draft "emergency" management plan to deal with the problem. But the paucity of baseline data exposed the draft emergency plan to a feeding frenzy of attack from all directions. It was delayed for two years and then shelved. When a management plan was finally implemented in 1993, the first six-month catch quota (which conservation groups argue is much higher than existing scientific information could justify) was caught in under a month, suggesting that the fishing power of the fleet is more than six times that necessary to take the quota. The plan was too little and too late to prevent severe depletion. A twenty-year monitoring study by the Virginia Institute of Marine Sciences indicates several important shark species have declined 85 to 90 percent since the early 1980s, as fishing continues under the new quota. It is significant that shark overfishing began after the Magnuson Act was in place for nearly a decade and that the Act failed to prevent the problems that subsequently occurred. (No management plan currently exists for Pacific sharks, eighteen years after the Magnuson Fishery Conservation and Management Act first became law.) When a group of animals that has dominated the seas for sixty million years begins to falter and disappear within a decade, despite the existence of a law that contains both the words "conservation" and "management" in its title, something is horribly wrong.

Ironically, some species are overfished by people who are not even trying to catch them. The capture of unwanted sea life is called bycatch, incidental take, or bykill. Bycatch comes in many forms: unwanted or prohibited species (including seabirds, sea turtles, marine mammals, etc.), unmarketable or undersized fish, and creatures killed in lost nets or abandoned traps. For some animals, such as sea turtles and albatrosses, bykill has been the main source of adult mortality. The problems of bykill are twofold: it can overfish non-target species and it can produce extraordinary waste. Estimates of discarded bycatch in Alaskan fisheries in 1990 range to well over half a million metric tons annually. Currently, incidental kill of unwanted animals, especially fish, is a legal and nearly universal aspect of fishing. Yet bycatch has been almost entirely overlooked by the Magnuson Act. In some fisheries, bykill vastly exceeds catch. For example, ten pounds of unwanted fish are killed for every pound of shrimp caught in the southern U.S. The Gulf of Mexico shrimp fishery kills and wastes enough juvenile snappers and groupers to ruin those fisheries through severe depletion and economic dislocation. Total discard in our shrimp fishery is estimated at 175,000 tons of juvenile fish a year; fish that would otherwise grow to support other important fisheries. This bycatch, according to the President's Council on Environmental Quality, has contributed to an 85 percent decline in the Gulf population of bottom fish like snappers and groupers over the last 20 years, making the real cost of a shrimp dinner expensive indeed.

The Gulf of Mexico Fishery Management Council warned in 1990 that "Red snapper are severely overfished in the Gulf of Mexico and the spawning stock is so reduced that the population may either be in a state of collapse or dangerously close to collapse," and that "Rebuilding the red snapper population cannot be effected without protecting juvenile snapper from harvest as bycatch in the [shrimp] trawl fishery. An estimated 12 million small red snapper are killed annually by trawls." NMFS predicted that reducing shrimp boat bycatch could almost double the red snapper fishery's productivity. Congress, which has grown adept at interfering destructively in fisheries issues and circumventing due process in fisheries management, reacted with absurd irresponsibility. Language inserted by Louisiana Senator John Breaux in the last reauthorization prohibited "any measures... to reduce incidental mortality of nontarget fishery resources in the course of shrimp trawl fishing" for three years. Unfairly favoring shrimpers at the expense of other fishermen (which, ironically, appears to violate the Magnuson Act's National Standards), this temporary exemption was recently extended. This is the Act's only policy on bycatch. Meanwhile, billions of juvenile fish-- the potential future paychecks of snapper and grouper fishers-- are shoveled overboard dead annually.

Though severe and systematic overfishing is emptying our oceans and destroying fishing communities, unless we stem the ongoing loss and degradation of habitats we can abandon hope for the future restoration of our fisheries. Rivers, wetlands, estuaries, reefs, seagrass meadows and mangroves are not external to the nation's economy. They provide (free of charge) the breeding, feeding, and nursery grounds for the resources that fisheries rely on. For example, roughly seventy percent of the U.S. fish catch is made up of species that are dependent on estuaries for at least part of their life cycle. In parts of the Gulf of Mexico, 98 percent of the fish caught are estuary-dependent. The effect of the loss of coastal wetlands can be immediate and permanent. There is a direct relationship between the pounds of shrimp landed and the area of estuary vegetation in locales along our Gulf coast; Where wetland area is large, shrimp landings are high. Where wetland area is small, shrimp landings are low. Over the last 15 years, landings of fish that depend on estuaries have fallen nearly 30 percent on the Gulf coast as habitat has declined, though fishing effort increased. In addition to problems of outright destruction are the more subtle (to us, though perhaps not to marine life) problems of degraded water quality from sediment and excessive nutrient runoff, and from pesticides and other toxics that affect marine life.

Particularly for those species that ascend rivers to spawn, such as salmon, striped bass, sturgeon, shad, and many others, loss and degradation of habitat-- not overfishing-- is the leading cause of depletion. For example, the inspiring salmon that once found their way by their millions from mid ocean to the rivers of their birth are now finding their way onto the endangered species list. Irresponsible logging practices and dams are among the salmon's main habitat problems. Several Pacific salmon have already been listed, and other endangered species petitions are in the works for both Pacific and Atlantic salmons. The days when salmon were so abundant that farmers caught them with pitchforks for use as fertilizer are long gone. Over a hundred major runs of salmon and steelhead on the West Coast south of Canada have already been lost, primarily due to habitat problems. Thousands of salmon fishermen in both oceans have been idled. Efforts to conserve and restore fish will ultimately fail unless the habitats that produce them are conserved or, in many cases, restored.

Fish as Renewable Resources

America's ultimate source of economic power is our natural resources. Marine fishes, in addition to their enormous biological value, represent a significant part of the resource endowment of the United States, and the world. One fifth of the world's catch comes from our State and Federal waters. The National Marine Fisheries Service calculated the 1991 value of the commercial catch at roughly $4 billion and the total economic impact of commercial fisheries at $50 billion. An additional $69 billion in total economic impact from recreational fisheries was calculated by the Sport Fishing Institute in a report released in 1994, based on statistics from the U. S. Census Bureau and Fish and Wildlife Service. By depleting fishes and allowing ruination of their habitats, we have significantly undermined the social and economic power of American fisheries and other water-dependent industries. The National Marine Fisheries Service estimates that U.S. fisheries are now producing only 60% of the value they could, if the breeding populations of so many species had not been mined down and so many of the fish had not been taken while they were very small. Continued declines are predicted for many fish populations. And while the public treasury receives no compensation for the use and abuse of America's fishery resources, taxpayers pay for fishing in the form of vessel loan guarantees, fuel tax exemptions, gear loss compensation, and other subsidies. Often, this goes into already-overcapitalized fisheries.

A 1989 statement by more than forty "concerned scientists" (mostly university professors) on the subject of the Magnuson Act stated "Virtually all of the important finfish stocks managed under the MFCMA [Magnuson Fisheries Conservation and Management Act]... are either overfished or on their way to that condition... [F]ishing effort and capital investments in vessels and gear are just too high." They also said "the exploitation ethic, where decisions favor the short term, virtually guarantees... severe economic and social dislocations." (The lead author of this statement was appointed head of the National Marine Fisheries Service a year later, but lost the post in two years, largely because he was viewed as anathema by the fishing industry, particularly by New England fishers-- and their congressional representatives.) The National Marine Fisheries Service noted in its 1991 strategic plan: "In the face of uncertainty and pressure from the fishing industry, fishery managers have often tended to base their decisions on an optimistic view of the condition of fishery resources. These 'risk-prone' decisions eventually result in overfishing." Improved data collection and scientific programs are critically needed to enhance the credibility, accuracy, and forecasting power of fisheries information. But a measure of uncertainty will always exist. Managers must learn to react conservatively and with a margin of error, in contrast to their customary optimism of acting on the best-case scenario and the upper bound of the calculated error range. Their optimism has often proven tragically unfounded. The problem is a global one. The United Nations Food and Agriculture Organization has recently determined that all the world's major fisheries are either fully exploited, over exploited, or depleted; there are no untapped riches left. The myth of limitless marine resources is now recognized to be just that-- a myth.

The oceans are the last theater in which industrialized peoples still hunt wild animals on a large scale. It is always smarter to live off the interest rather than the capital, but in a system where we can freely reap that which we have neither sown nor nurtured, mining the capital-- and that is exactly what we are doing to the coastal systems and the oceans-- is inexcusably short sighted. We are becoming as children born to wealthy circumstances who, failing to perceive their privilege, have squandered their advantage, lost their station, and bankrupted themselves and their sons and daughters.

Overfishing and habitat degradation can lead to a four-step process of extinction, where we suffer the major effects long before the last animals vanish. From an economic standpoint, extinction can most pragmatically be viewed (and most effectively and inexpensively dealt with) as a process rather than an event. Indeed, whether the last animals vanish or not is almost academic from a fishing perspective, because fishing economies go extinct long before the last fish dies. The first stage of the extinction process is depletion. At this stage, the fish population is reduced below the level at which it would be most productive; fish are smaller and fewer than they could be, and chances for obtaining a strong year class of newly spawned fish are reduced. Consequently, the population's ability to support fishing is reduced, profit margins decline, and some businesses become inviable. Other members of the ecosystem may experience food shortages or an unnatural relaxation of predation pressure. The next stage is ecological extinction, where the animal's population density is depressed to such low levels that the species no longer fulfills is role as prey, predator, or competitor in the ecosystem. As a result entire marine communities may undergo a profound shift in numerical and functional relationships. Ironically, less valuable (to fishers) species often increase when this happens, and their proliferation may suppress recovery of more valuable species. Another stage, commercial extinction, occurs when the animal is so rare that it is no longer profitable for anyone to fish for. Compensatory price increases may delay commercial extinction. For example, in the bluefin tuna fishery, American fishers may spend weeks trying to catch a single bluefin. But demand by Japanese sushi connoisseurs makes each individual fish worth between six and thirty thousand dollars to the fisher; enough to compensate the time that must now be invested in each capture. If commercial and ecological extinction are not reversed, total extinction may become a possibility. But by the time total extinction becomes an issue, all the other practical effects of the animal's disappearance from commerce and from the ecosystem have already been suffered by the fishing industry. To date, total extinctions are rare in the oceans, but this may not always remain so. Several fish species have been listed as endangered or threatened under the Endangered Species Act. The western Atlantic bluefin tuna population, whose breeding population is estimated to have declined over 90% since 1975, from a quarter million to 20,000 animals, has been proposed for listing under the Convention on International Trade in Endangered Species (CITES). Several conservation groups around the world are now seeking CITES listing for other bluefin tuna populations. Additionally, the Fish and Wildlife Service is considering whether to propose CITES listing of several shark species that have been seriously depleted (their fins are in demand for soup in China, which imports them from many countries). We may unfortunately see more fish on endangered species lists in the future. If we do, it may not be too late to save them. But it will likely be too late to save the fishing jobs and coastal communities that once depended on them.

Could we farm our seafood the way we farm other animals? Some of it, yes. But overall, fish farming will not produce more seafood than can catching wild fish in well-managed fisheries, because we could bring under control only a very small fraction of the oceans' naturally productive regions. Fish farming or mariculture can be economically profitable, though it often entails real costs that are currently external to the market. These include additions of hormones and pharmaceuticals into aquatic environments, introduction of diseases, introduction of non-native animals, inbreeding and release of genetically inferior animals, and destruction of naturally productive habitats or natural coastal barrier systems to make ponds. There is as well the issue of privatizing public waterways. Also, we would lose the rich array of seafoods now available, in favor of a few easily raised varieties. Further, we would be laboring through farming to replace some of the wild fish that could-- if we managed fishing responsibly-- be free for the taking in abundance. It might be as though we were expelled from the Ocean of Eden.

With catches plunging and more operations becoming marginalized, the value of fishing boats has plummeted, trapping many who would like to leave the business but who are stuck with mortgage payments on unsellable boats. These people are effectively forced to continue fishing. They have no apparent options, no prospects, and a future that is at best uncertain. For those who want to stay in fishing for the way of life it offers, the menacing specter of declining profits is a constant strain. For young people who want to get into fishing, the outlook is even bleaker. So the crews and boats age in a once-proud and independent free-enterprise venture that now offers little sense of future in many areas. This was not the expectation of men and women who have invested their time, money, and lives. On the other hand, fishers themselves have often worked to prevent the management councils from enacting the ounces of prevention that would have been to their own longer-term advantage. Fishery management councils have allowed much damage to occur because the Magnuson Act is vague or lax on key directives. The law should provide fishery managers with both the framework and the legal imperative to accomplish Congress' original intent. And right now, the law provides neither effectively.

What Went Wrong

When Congress adopted the Magnuson Act it created a unique form of participatory government by establishing eight regional Fishery Management Councils. The Act directs that the councils be composed of "individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding the conservation and management of the commercial or recreational harvest" of marine organisms. This is both a major strength and a major weakness, because, while the voting body of a Council possesses broad practical knowledge about catching and marketing fish, the Councils are largely comprised of individuals with little knowledge or training in resource stewardship or the biological characteristics of marine animal populations. Council composition has also been heavily tilted toward individuals representing fishing groups, resulting in biases so pronounced as to largely account for the failure of the Councils to conserve the fish. (By comparison, we do not allow electric companies to sit on utility commissions.) But the biases of council members are not necessarily self serving or malevolent. Council members are often well meaning, seeking to shelter fishers in the community they represent from short-term economic pain. Unfortunately, an ounce of pain deferred one year, and an ounce deferred the next, have added up to a pound of trouble. The irony is that the cumulative result of many attempts to assure that fishers stay in business is that in many fisheries the financial returns are now the lowest they have ever been, more fishers are going out of business than ever, and fishing holds little promise as a way of life for the children of many fishing families. Overfishing hurts economic and social interests in the long term. And now, eighteen years after the Act came into force, is the long term. The piper is demanding payment, and the fishing communities (not the managers who made or avoided the decisions) are paying.

Among all these problems weaves the National Marine Fisheries Service. Ostensibly, NMFS is "responsible" for managing the living marine resources of the United States' Exclusive Economic Zone, under the authority of over 100 federal statutes. In reality, NMFS has been shoved into the back seat and taken for a ride like a kidnapping victim. "The National Marine Fisheries Service is an agency with severe problems and challenges that require immediate attention," says the National Fish and Wildlife Foundation, an unusual non-profit organization established by an act of Congress in 1984, which disburses federal monies in support of the programs of the U. S. Fish and Wildlife Service and the National Marine Fisheries Service. Foremost among NMFS' severe problems is that it is buried in the Department of Commerce. Other agencies that deal with our nations living renewable resources (the Forest Service, Fish and Wildlife Service, etc.) and are housed in the Department of Interior, among peer groups that understand sustainable resource stewardship and its role in the economy. NMFS exists in solitary confinement in a department that deals with manufactured factory commodities. It is virtually inconceivable that any Secretary of Commerce would have a background attuned to natural resource stewardship. Consequently, it is virtually inconceivable that NMFS will ever rise above unwanted-stepchild status in the Commerce Department.

For years NMFS suffered from very poor leadership. It continues to suffer from chronic underfunding. Compounding its budgetary inadequacy is that much of its budget is a series of line items for Congress members' pet projects. This has made it exceedingly difficult for NMFS to implement a vision, during the relatively brief part of its history when it has had one.

NMFS' current role is primarily: 1) monitoring, 2) enforcement, and 3) consultation on habitat. Though monitoring is critical to management, inadequate information is collected to determine the status of a third of our commercially important marine fish. Regarding law enforcement, NMFS has never had the monies necessary to ensure compliance. This gap will likely widen as more and more regulations-- such as the area closures, mesh size restrictions, and turtle excluder requirements, are implemented in troubled fisheries. Habitat should be treasured as the no overhead, free lunch factory for America's multi-billion dollar fishing industries and coastal culture, as well as the stage for much of our recreation and tourism. Yet the Fisheries Service has only a consultative role in determining whether federal permits will be granted for activities that destroy or degrade habitat; NMFS should have full authority, including veto power, to determine the fate of permit applications that would hurt habitat. Regarding actual fishery management, NMFS must generally defer to the judgment and schedule of appointees of the fishery management councils. This has had disastrous results. But where NMFS does have direct authority to write management plans-- for the Atlantic tunas, sharks, and billfishes-- their budget is terribly inadequate. This is a key reason, for instance, why there are no management plans for any Atlantic tunas. The National Marine Fisheries Service, ostensibly the nation's marine steward, has been marginalized, by inadequate funding, inadequate legal authority, and a fishery management council system that puts more authority in the hands of political appointees-- many of whom have no training in natural resource management-- than in the Service' resource management professionals, economists, and social scientists.

Fixing The Magnuson Fishery Conservation and Management Act

A basic flaw of the Magnuson Act is its failure to define and prohibit overfishing. The Act says that "Conservation and management measures shall prevent overfishing while achieving the optimum yield from each fishery on a continuing basis." Surprisingly, there are serious problems with this. Whereas overfishing is undefined, "optimum yield," is defined as maximum sustainable yield "modified by any relevant economic, social or ecological factor." Though this sounds eminently reasonable, this definition can be used to justify virtually any catch level, including one that exceeds the reproductive abilities of the fish (constitutes overfishing). In practice, fishery managers have often subordinated biological considerations to short term economic considerations. Thus the Act's current wording allows, rather than prevents, the overfishing that is bankrupting much of the fishing industry.

The regional Fisheries Management Councils exert their effect primarily through the development of so-called Fishery Management Plans. Nothing in the law compels a council to do a management plan for any species, ever. During the development of each fishery management plan, the councils are directed by the Act's guidelines to quantitatively identify a level of fishing mortality that constitutes overfishing, and to prepare a recovery plan when a condition of overfishing exists. This sounds good. The problem here is that the guidelines, which were added to the Act in the late 1980s, explicitly do not have the "force and effect of law." Many fisheries remain without adequate recovery schemes or even management plans. Neither the law nor the guidelines expressly bind the Councils or the National Marine Fisheries Service to halt overfishing. Other critical omissions in the Act regarding the development of fishery management plans are that: 1) the guidelines fail to specify a time in which a council must address overfishing once identified; 2) the Act contains no provision for action if a Council does not respond to overfishing; 3) managers are not required to consider predator-prey or other important ecological relationships among fishery resources when determining allowable catches for any single species; 4) the guidelines fail to direct the councils to establish a specific rebuilding goal or rebuilding timetable for depleted but stable populations. The Act should require the Secretary to intervene when a council fails to develop an adequate recovery plan within a specified period for an overfished species. Some observers have suggested creation of an independent scientific review panel to assure that overall catch quotas are sustainable. This would be a good way to ensure that management measures recognize the boundaries of natural capacity. And some believe that management plans for overfished species should include a moratorium on new entrants into the fishery until the fish populations are rebuilt to target levels, a modest but important proposal. The Act should clearly require that Fishery Management Plans favor long-term benefits to the nation over short-term profit making. This is the best way to help fishers and coastal communities.

A peculiar series of additional problems and inconsistencies in the Act arise in the case of Atlantic tunas and billfishes (swordfish and marlins). Off our Atlantic coast the international Atlantic tuna commission (ICCAT) is involved in management of tunas and billfishes, some of which cross international and high seas boundaries during their annual migrations. The commission can recommend management measures for implementation by its member countries. But its recommendations are very few, and characteristically lax (often contrary to its scientists' recommendations), resulting in documented population declines of 50 to 90 percent for bluefin tuna, swordfish, and marlins (according to the commission's own data). Amendments added to the Magnuson Act in 1990 at the behest of tuna and swordfishing interests forbid U.S. catch quotas from being more restrictive than those quotas agreed to by the commission. In effect this allows a country, such as Japan, to participate in setting catch quotas in U.S. waters for fish that are imported to that country from the U.S. Through these amendments, American fishermen protecting short term personal gain have succeeded in handcuffing the National Marine Fisheries Service to the commission's mismanagement. Such deformity of U.S management authority is wholly inconsistent with other U.S. law, is unique among the twenty nations that are party to the tuna commission, and undermines U.S. authority to properly and conscientiously manage our own fish in our own waters. This language must be struck from the Magnuson Act, allowing the U.S. full power and discretion in managing our fisheries in our Exclusive Economic Zone. More importantly, if the U.S. was empowered to enact conscientious and effective management measures for these fisheries, the U.S. fishing industry would suddenly have incentive to stop using the commission as a refuge for inaction, and seek through the international commission effective conservation by other countries sharing these highly migratory fish populations.

The Magnuson Act should state that it is national policy to reduce and work toward the elimination of excessive bycatch. The Act also needs to be amended to provide broader authority and clear directives to manage bycatch problems through fishery management plans. It should provide mechanisms for improved data collection on bycatch and create incentives for bycatch-reduction practices and engineering. We also need penalties to discourage excessive bycatch and provide incentive for cleaner and less destructive fishing.

Currently, the Magnuson Act is set up to try to manage fish in isolation from their habitats. The Act only authorizes fishery managers to comment on activities potentially damaging to habitat, and any recommendations are merely advisory. The National Marine Fisheries Service, in particular, has no direct authority over decisions on proposed federal projects, policies, or programs that would damage habitat and thus reduce fish population size. The Act should be amended to increase the consultative role of the regional Fishery Management Councils and to provide the Secretary of Commerce (through the NMFS Office of Habitat Protection) with the authority to restrict, modify, or prohibit actions that would damage essential fish habitats. Finally, Congress should recapture some of the costs spent for managing public marine resources, perhaps by creation of a trust fund for marine taxes similar to the Highway Trust Fund, and then use these fees to help protect habitat and regulate fisheries.

Congress has the opportunity address our fishery problems this year. If it does not, fewer fishers will be arguing over fewer fish during the next reauthorization. Congress (House Merchant Marine and Fisheries Committee and the Senate Commerce Committee) is currently holding hearings on possible changes to the Act. The Marine Fish Conservation Network, a new coalition of conservation groups with over 50 endorsing fishing, environmental, and scientific organizations, has developed a draft bill to take the loopholes and vagaries out of the Magnuson Act, and is currently seeking Congressional sponsors. The Network's draft bill offers a comprehensive 24-page set of amendments addressing overfishing, recovery of depleted fish, bycatch policy and bycatch reduction engineering, habitat safeguarding, management councils, and user fees. Among other things, these amendments would define and prohibit overfishing and, for overfished populations, require recovery plans with defined goals and a timetable. Importantly, the prohibition on overfishing would not penalize people who fish. Rather, it would merely authorize and require the Fisheries Service to intervene when councils failed to develop adequate management and recovery plans for overfished populations. It would also allow councils to impose interim conservation steps, such as setting a minimum size that corresponds with size a breeding maturity, without having to construct an entire fishery management plan. The other amendments are similarly designed to compel implementation of the Act in a way that is more reflective of the Act's original intent of restoring the nation's fish and fishing activities.

In Conclusion

The point of the foregoing discourse is not that the Magnuson Act does not provide the legal potential to conserve and restore living marine resources. It does. But it does not provide the legal imperative to do so. It could. In order for that to happen, it must be amended to bring to fruition Congress' intended purpose of restoring and sustaining the economic and biological power of living marine resources so they can support a productive ocean, a robust American fishing fleet, and healthy food for our tables.