Wise Use Below the High Tide Line; Threats and Opportunities

by Carl Safina, PhD and Suzanne Iudicello

Originally published in Let the People Judge: Wise Use and the Private Property Rights Movement, 1995, Island Press.

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In 1991, hundreds of people from forty co-sponsoring organizations staged a "Fly-in for Freedom" in Washington D.C. Concerned Shrimpers of America, an organization of southern shrimpers, figured significantly in the demonstrations and lobbying that comprised the event. Concerned Shrimpers had become members of the steering committee of Alliance for America, a group working to weaken the Endangered Species Act. The shrimpers wanted conservationists off their back.

The shrimpers' beef, to coin a surf-and-turf mixed metaphor, had been their adamant resistance to turtle excluder devices, or TEDs. TEDs allow sea turtles to escape from shrimp trawl nets. A trawl net is a bag shaped net pulled behind a boat, scooping up sea life in its path. After being towed for a while, sometimes several hours, the trawl is winched back aboard the boat and contents in the terminal end of the net bag is dumped on deck. In the southern U. S., the contents include about ten percent shrimp and ninety percent unwanted marine life, mostly juvenile fish which are shoveled overboard, dead. Occasionally a turtle is pulled aboard. Occasionally, the turtle has drowned by the time the net surfaces.

All sea turtles are listed under the Endangered Species Act, and in 1990 the National Research Council estimated that up to fifty five thousand sea turtles were killed annually in the course of shrimp trawling in the southern U.S., and that this was their primary cause of human-induced mortality (natural mortality remains unquantified). The Council noted that "Declines of Kemp's ridleys... and of loggerheads... are especially clear" and that "Trawl-related mortality must be reduced to conserve sea turtle populations, especially loggerheads and Kemp's ridleys." But the Council noted that "Shrimping can be compatible with conservation of sea turtles if adequate controls are placed on trawling activities, especially the mandatory use of turtle excluder devices at most places at most times of year."

Although the wise use movement has termed the Endangered Species Act "a law out of control," TEDs seemed to conservationists and fishery managers to be a solution to the shrimp/turtle problem that would not interrupt shrimp fishing. In other words, it seemed the kind of win-win solution that people who worry about endangered species dream about. A TED is a shunt, often consisting of a slanted metal grate and a hinged exit door, sewn into the trawl just ahead of the terminal net bag. There are a variety of TED designs, but the idea is that turtles hit the grate and slide out the door to freedom, while shrimp pass through the grate and are caught.

Problem was, shrimpers hated TEDs for a variety of reasons, ranging from the fact that some TED designs lost part of the shrimp catch under certain conditions (e.g. if the grate clogged up with seaweeds), to simple resentment for conservationist meddling and federal bureaucratic mandates. When it began to look like use of TEDs would be mandated in southern shrimp fisheries by the National Marine Fisheries Service (this did occur in 1992), shrimpers backlashed with a variety of actions and joined the movement whose avowed purpose is to break environmental regulation that interferes with natural resource based private business activities. Concerned Shrimpers had more to be concerned about than just turtles and TEDs. Incidental bycatch of millions of juvenile fish in shrimp nets has devastated several species of fish and incurs very high costs to other fishers because these same juveniles would be worth a considerable amount as adults if they were protected until they reached adulthood. It seemed a matter of time before shrimpers' juvenile fish bycatch would come under increasing fire, increasing scrutiny from enviro-meddlers and increasing regulation from bureaucrats.

The hook-up of shrimpers with wise use people from the Northwest was widely perceived (and alternately applauded and dreaded in the wise use and marine conservation communities, respectively) as the beginning of a grand marriage between terrestrial and aquatic enviro-bashing natural resource users, spanning the length, and breadth of the United States of America, from sea to depleted sea.

Many people in both the terrestrial and fishing groups feel overburdened by federal regulations. Further, certain fishing practices have recently come under attack by conservation groups who have begun to perceive that marine fish are among our most mismanaged and severely depleted wildlife. This has caused some organized fishing groups to see environmentalists as part of their problems, and thus to see terrestrial wise-users as people with whom they share something in common.

But if the honeymoon between shrimpers and their landward kindred spirits has matured into a surviving marriage, it has not spawned thriving offspring or resulted in an all-out rush to the altar by commercial fishing groups. The reasons are several, and they vary around the coastal perimeter of the country. In many areas there is an inherent tension between the wise use movement's agenda and the problems of commercial fishers. One prime reason is that habitat loss is responsible for a major share of the declines in fish abundance that are hurting fishers, and fishers are smart enough to see the direct link between falling catches, lost and degraded rivers and coastal wetlands, and the private landowners who are destroying wetlands, logging, grazing, and spraying pesticides in watersheds under the wise use banner.

Further, many commercial fishers are simply not well networked. The free, independent, iconoclastic, and often misanthropic personalities that are drawn to the open sea are not traditionally "joiners" and hob-nobbers. And they spend much of their time away from home and away from phones. Even the heads of several of the most prominent fishermen's organizations whom we polled have never heard of the wise use movement or were only dimly aware of it.

Still, the courtship continues. At the moment it is relatively one-sided, with wise users doing the calling and fishers listening politely but generally not getting into bed. In February, 1993, the National Fisheries Institute, the major U.S. lobbying and advocacy firm for seafood distributors, sponsored a forum on the Endangered Species Act, Marine Mammal Protection Act, Magnuson Fisheries Conservation and Management Act, and Clean Water Act. Wise Users came a-courting, saying that NFI needed to join them to make the case against ESA.

But NFI demurred, partly because of the habitat destruction problem that is part and parcel of the wise use agenda and partly because a number of big commercial fishing organizations that were involved in the forum had already recognized the wise users as habitat destructionists. At a meeting in April 1993 in Portland, sponsored by the Pacific States Marine Fisheries Commission, fishermen said openly that they had more in common with the environmental movement than with the wise use people, because problems caused by logging, ranching, agriculture, and mining were significant threats to the salmon that they relied on for a living. Certain west coast salmon fishers' organizations have noted in their literature that the Endangered Species Act holds some promise for restoration of salmon populations and the salmon fishery, which is currently on the ropes due primarily to just those activities that wise use holds high and defends. Tensions between fishers and landowners has occasionally erupted into the open, as in a civil rights suit in Louisiana where fishers are suing private landowners for charging fishermen fees to use waterways.

This is not cause for complacency, however. Fishers are beset by an array of serious problems and are being squeezed as never before. Some fishers are attracted to the wise use, anti-regulation perspective. In June of 1992, Fishermen of the Eastern Tropical Pacific, representing the fishery which catches dolphins while catching tuna, attended the Wise Use Leadership Conference in Reno, Nevada. There the fishermen's group complained at length that environmental regulations were forcing many ships out of the fleet. Some fishers see wise use as the next place to turn if the conservationists' marine fish agenda becomes too demanding or strident. The American High Seas Fisheries Association, in a letter objecting to language in a Marine Fish Conservation Network pamphlet, complained that the sentence "Conservation and management measures to prevent overfishing and rebuild depleted fish populations must be given priority over any other considerations" suggests ignoring human needs, "and this is the genesis of the 'wise use' movement."

In certain areas, fishers' access to severely depleted fish and shellfish populations is increasingly restricted by federal regulations, and conservation groups have in the last two years become prominent on the fishery scene. Wise use literature is continuing to try to establish the link between rights of access to private lands and rights of access to fishing grounds. The Lands Rights Letter, a sharp-tongued wise use newsletter, has denounced the fishery activities of the New England based Conservation Law Foundation, which sued the National Marine Fisheries Service for failing to develop a plan to rebuild several severely overfished depleted fish populations off New England. The Land Rights Letter said that "the resulting plan would have put Maine lobstermen out of business in droves and led to a storm of protest," and that "ongoing CLF legal activism continues to incite the wrath of Maine fishermen. Political leverage based on the failure of the government to recognize private property rights-- in these cases... fishing rights-- is a common theme in environmentalist strategy nationwide." While CLF's suit and the rebuilding plan it attempted to force did in fact ignite a storm of protest from the fishers who had been mining the fish to their lowest levels ever, the affected fishery did not include lobsters and had nothing particular to do with Maine. And despite the fact that fish and fishing grounds are publicly owned and access is a privilege, Land Rights Letter referred to fishing rights as private property rights.

That a system of open access to public resources is being referred to as private property rights bodes ominously for future interpretations of a new way to manage fisheries based on privatizing access to federally set fishing quotas through the use of saleable shares known as "individual transferable quotas" or ITQs.

Property Rights in Marine Fisheries; Wave of the Future?

Protection of property rights is, if not the heart and soul of the wise use movement, certainly its lungs and larynx. Indeed, the Land Rights Letter's slogan is "For Americans dedicated to preserving our heritage of private property rights."

Currently, there is little to indicate that the Wise Use movement has made much progress in most marine fisheries despite its efforts. But the potential for private property rights becoming important in the ocean context is on the near horizon in the form of government giveaways of fishing rights which can then be sold.

The government argues that ITQs are not property rights, but rather access rights. However, most conservationists, economists, and some courts are not so sure. If you can buy and sell an ITQ, it can be, and has been, construed to be a private property right.

Using Wise Use Tactics For Conservation of Coastal Habitat

Capture is by no means the only problem facing living marine creatures. A serious long-term threat facing many marine creatures is degradation and loss of marine habitats. Along the coast, where many marine creatures spawn or spend the early part of their lives, habitat loss and degradation has begun to limit the productivity and recovery potential of marine areas, especially estuaries. An estuary is a mixing zone between freshwater and seawater. Typical estuaries are the vast coastal bays of the east coast and the tidal portions of rivers.

At the coast, hurting habitat hurts business. Seventy five percent of U.S. commercial landings consist of species dependent on coastal estuaries for part of their life cycle. The annual economic value of estuarine habitats to U.S. fisheries is about $14 billion. Coastal wetlands are still being filled at a significant rate by private owners. Consequently, fish runs are declining and shellfish beds are being destroyed or polluted. Coastal habitat is disappearing in direct proportion to human population growth, and, because coastal areas are desirable places to live, human population growth in coastal areas is four times the national average. This greatly increases development pressures and adds additional urgency to the need for protecting remaining habitats before they are destroyed.

There exists an opportunity for the conservation community to do something novel: link arms with the people who make money taking a living resource, in this case commercial fishermen. Coastal fishers, many of whom are colorful people with long local traditions and long-established communities, are being pushed off the end of the earth by developers, polluters, and wetlands-wreckers.

This issue has a very large human and social component which has not yet been elevated to public view. Commercial fishers are the last hunter-gatherers on a continent that has not been accommodating to the needs of hunter-gatherers since Columbus landed. Fish are our only major food source whose supply still depends on natural production in a wild environment. This is why fishing is fundamentally unlike agriculture and livestock raising, and why fishing depends on productive, healthy, abundant habitat. Fish are wildlife, not commodities.

A demonstration that conservation groups can fight vigorously on behalf of people who use natural resource would help the image of conservationists. Who says conservationists are anti-people and anti-business? Demonstrating that wrecking nature bankrupts local economies, by having those who are being hurt financially do much of the speaking on their own behalf, would be a powerful message, if the message gets heard. The conservation community could help fishers get their own message across. Conservationists have the skills, fishers have the problems, and both camps have the common goal of preserving habitat and the quality and productivity of coastal waters into the future. Conservationists and fishers could work together to protect, enhance, and restore coastal habitats and their related fisheries and economic benefits to the nation and coastal culture. Enabling a financially-vested fishing constituency to work with environmentalists for common goals would not only be powerful for the task of habitat conservation, it would also help blunt the "wise use" movement in local areas by opposing wise-users with other local grassroots business interests that depend on healthy habitat. For example, because logging can destroy salmon spawning habitat, salmon fishers depend on healthy forests in the northwest, and by some estimates there are several times as many fishers as loggers in the northwest. At the very least, even if there are fewer fishers than wise-users, the appearance of fishers in the debate changes it from an environment versus jobs debate to a jobs versus jobs debate.

The wise use method has frequently been a grassroots approach. One view of this, ironically, is that it is an effort by vested interests to copy the grassroots strategies that have worked so well for public interest grassroots groups, exemplified by conservationists and environmentalists themselves. Wise-users usually portray the "little guy" as struggling to survive under continual attempts by well-funded adversaries who would ruin their ability to work the land, thus taking their rights to make a living. Usually, but not always, this involves activity on privately owned lands. At other times it involves rights of access to publicly owned land. Below the high tide line, because hurting habitat hurts business and hurts fishers' access to clean, productive waters to work, conservationists have an opportunity to co-opt this "wise use," little-guy-as-underdog approach. Untapped opportunities exist for the conservation community to begin building strong ties and active working relationships with fishers and coastal fishing communities, against common adversaries such as developers and polluters of coastal wetlands, estuaries, and rivers. Conservationists could work with fishers, act as a conduit for providing scientific data on the effects on fish and fishery economics of wetlands filling, coastal construction, pesticides, and other factors which degrade habitat and undermine fishing communities. Conservationists could help facilitate fishers' speaking on their own behalf and help mobilize a grassroots self defense effort of fishing people whose income and way of live are directly linked to healthy marine habitat.

This "inverse wise use" pro-conservation grassroots/business approach could be applied on local or regional scales, centered around particular estuary systems. This could take the form of estuary-based campaigns to secure habitat, stop development, stem pollution, clean the water, and restore biological productivity. It could also take the form of infrastructure development initiatives to build up sewage treatment capacity, and thus providing money and jobs ashore. Other pro-fishing-business initiatives on which conservationists and working fishers could collaborate are working to give the National Marine Fisheries Service veto power over Army Corps permits to alter coastal habitats, work to streamline the numbing array of overlapping jurisdictions that allow real coastal protection to fall through the cracks, work to guard against oil pollution caused by drilling and spills, watch-dogging of marine environmental impact analyses and construction permitting, strengthening pollution controls, clean-up of contaminated sediments, and elimination of construction subsidies and subsidized insurance in coastal areas, diversion of river water for agriculture, dams, and cattle and timber subsidies in watersheds.

Because fisheries are so varied and their problems and pressures so varied, the response of fishers to the wise use movement has varied from embrace to repulsion. There are issues to be wary of, but there are also intriguing opportunities to use the wise use approach to neutralize wise use efforts below the high tide line.