|Machiavellian Fisheries Management|
Note-the term "political" as used in this letter is intended in the Machiavellian sense (the ruthless domination of one will or interest over another), rather than in the traditional American Interpretation (democracy, political parties, compromise, accommodation, etc.) .
The Fisheries Management and Conservation Act (FMCA) as administered by the National Marine Fisheries Service (NMFS), gives absolutely no REAL consideration to small owner/operated boats in the industry. The obvious intention of NMFS is to drive out all small operators to economic extinction and end up with a relatively few large fleets.
The Surf Clam Plan of 1977 as implemented by the Mid-Atlantic Council is a good example. The Plan calls for a limited work week limited to specific hours (currently six hours per week) on specific days chosen three months in advance - from strict options available from NMFS. The days and hours available were only those that suited processor or enforcement convenience. Additionally a limited entry scheme was put into effect. Supposedly no new boats were to be allowed in (there were exceptions - all to large interests).
Despite the strong objections of many small operators in the industry the Plan was implemented. Following are some of the objections:
The plan obviously had as one goal to reconcentrate the economic control of the industry to the large processors by driving the small interests either out of the industry altogether or subjecting (actually returning) them to the control of the large processors and fleet owners. To that extent the Plan has been admirably successful.
While there were MANY more objections, these suffice to demonstrate our disgust for the Surf Clam Plan. All of what was said, and more, has come to pass. Additionally, since implementation of the Plan, the violation rate has been estimated to exceed 75% of the participants, indicating a widespread genuinely perceived gross unfairness of the plan and/or immature, excessively zealous enforcement.
[[The limited work week scheme was changed several years after this written, to a "quota" type system. As one might surmise, it was a system clearly designed once again to benefit the largest interests and again concentrate power to the largest processors. (So what else is new?) ]]
The New England Fishery Council, under strong pressure from large interests in Rhode Island and NMFS, proposed a Lobster Management Plan. When NJ lobstermen and New Jersey Farm Bureau (NJFB) became aware of the implications of the proposed plan, they objected strongly. The Plan, as proposed, would virtually devastate, if not destroy altogether, the inshore industry in NJ. The NJ lobstermen believe, with good reason, they work on a different lobster population than New England.
Historically the inshore lobster fishery in NJ has consisted of smaller lobsters, particularly in Monmouth County, than are landed in New England. The plan, based on "scientific evidence", would eliminate nearly all NJ fishermen from the fishery. When it became obvious the plan would be birthed, the NJ Legislature enacted a state law that would allow the NJ lobstermen three years, each year increasing the minimum size until it matched the minimum federal size, allowing the lobstermen a reasonable time to adjust to the plan. A delegation of NJ lobstermen went to Washington and met with Wm. Gordon and John Bryne of NMFS and asked for a reasonable accommodation in the plan. After all, the NJ fishery accounts for less than 2% of the total landings on the East Coast. The result has been incredibly harsh enforcement.
Only a sample. Helicopters, infrared cameras, videotape, undercover agents, the US Coast Guard vessels, and more have been employed to stamp out the lobster menace in New Jersey. If any "violator" is so presumptuous as to ask for a court hearing, he is told the minimum fine the Administrative Law Judge will consider is $7,500 per offense and a man is unquestionably judged guilty before he even goes in.
The Scallop Management Plan does not allow landings of more than 35 meats to the pound, based on "Scientific Evidence". Any vessels landing smaller scallop meats would be subject to seizure of the trip and liable for fines.
Boats would come in, and if any small meats were found, the entire trip would be seized. The catch would be sold and NMFS would take the money. There would be occasions when the trop was landed, packed, put in the cooler, and the crew of the boat all gone, AND THEN NMFS would then go in the cooler, confiscate the trip and collect the check. All without any representative of the boat (captain, crew, owner, agent, etc.) present.
One boat, about to be sold(as many before her have been forced to do, causing an inordinate number of questionable sinkings when sales weren't possible) because the size limit made it possible for her to continue, had her trip seized ($6,800) and was additionally fined $1,500.
Consider the absurdity of permitting 3.5" shell size scallops to be landed in the shell that will yield 50-90 meats per/lb. Further shell-size scallops that will yield 30 meats/lb. in April will yield 50+ meats in October (part if the natural cycle, ambient conditions, food, etc.)
Virtually all the Management Plans are purported to be rooted in "scientific evidence" and "optimum sustainable yield" (OSY). A closer look will reveal most, if not all, to be based on fallacy and/or political motivations or simply untrue. Scientific facts are proven by experiments where ALL conditions affecting the experiment are known, then carefully observing the interaction of those conditions and studying the results carefully. In a wildlife-type (fisheries, deer, bears, ducks, etc.) situation, a "statistical model" is built, with ALL conditions known to affect the model known from the beginning. The results are studied and remedial actions, if necessary, are recommended.
On land it is relatively easy to document the all the conditions (weather, predators, food, cover, etc.) by observation. In the ocean it is virtually impossible. The ocean is so incalculably complex that the largest computers in the world tied together couldn't even begin to model it. An endless list of conditions (local and global weather, temperature, currents, the varying chemical composition of the water itself, plankton, food, predators, pollution, etc. aren't even a start) all interacting make the job of even identifying conditions insurmountable.
[[ Any time you hear a fisheries "expert"/scientist talk of the need to build a "model", you know he's lying. Well, technically he's not really Lying (there probably is a need for a model, but when he intentionally gives the impression a model can be built, that's a lie in my book. The bastards do that a lot too. Telling technical truths to convey a lie.]]
Consider the job of predicting the weather with all conditions known and observable, several magnitudes easier than even a small section of the ocean. Throughout the whole world satellites, massive amounts of manpower and computer time are assigned full time to the job of telling us what the weather will be like tomorrow. The Weather Service cannot guarantee any prediction even for a few days, much less a month from now. NMFS has FIVE-YEAR PLANS predicting production (which they control), stock sizes, etc.
[[Anyone who has read any history of communist governments in the USSR is familiar with the "Five Year Plan Concept"]]
A few typical examples or "scientific evidence":
[[ Today the fleet of then 180+ boats has been reduced to about 50, and a few large companies are back in the driver's seat. Value to the men on deck today is less than it was in 1977 (and that's before factoring in any currency depreciation (inflation)) . Anybody care to guess why Surf Clams were the first Plan?]]
Nearly all fisheries are cyclical in nature. When a set of naturally favorable environmental conditions prevail, a species population will occur followed by an even greater explosion of predators. The original population will be rapidly reduced followed by a predator reduction. A natural cycle. How long a cycle runs is anybody's guess, but generally in the 10-20 year range is my guess.
As an example, if a fishery is supporting 50 boats at the bottom end of a cycle and the cycle starts up. Then as those boats do better, more boats are attracted to the fishery each year. If, at the top of the cycle, the fishery is supporting 100 boats and the cycle begins to decline, then boats are financially forced to leave until there are only 50 boats left. Not the same 50 though. Only those best adapted to the fishery at that time. Therein laid the strength of our industry.Before NMFS that is.
To the extent any fishery has seasonally consistent landings is often more a function of the marketplace than of natural conditions. The problems come when the cycle is on its downside. Then those who have an investment insist on political measure to protect that investment. One can only speculate on how much NMFS is motivated by the outstanding direct loans, loan guarantees, etc. (rumored to be in excess of $200,000,000) they have made and are now threatened. Made for the most part, not to traditional fishermen but to outside interests (tax avoidance schemes, investors, high finance types, etc.) for boats that never had any real chance for financial survival on their own merits.
[[ This was before I knew of the $250,000,000 in dedicated tariffs (explained in List 1 Explanation on the main page of AOU) which is, I believe, the main NMFS impetus.]]
Commercial fishing is one place where "bigger is better" can quickly become worse.
A classic example of a good idea made bad. The Councils can roughly be divided into three sections:
If to smooth application of the Act, administrative penalties are considered necessary, the penalties should be on a first offense, second offense, etc. basis and not exceed $1,000or whatever gain would have been had the violation not been detected. If an offender so recalcitrant that more drastic action is necessary, then NMFS or the Council should have the option of taking the violator to federal court for further punishment limited to the loss of the right to fish for a specific length of time. The current practice of fining people tens of thousands of dollars for a first, or even second, offense is abhorrent to the American sense of justice. After all these people are not terrorists, murderers, drug dealers or large corporations. Outrageous financial and economic sanctions are such that no fisherman can go to sea in peace. In fact, they are severe enough to drive many out of the business altogether. [[ At this time, I was unaware a "suspect' had no right to a jury trial, or even a court hearing (other than a federal appeal on technical grounds). Only the kangaroo court of an "administrative hearing".]]
Further, three years without a violation should wipe the slate clean. To hold an infraction, which are often technical in nature, for a lifetime only adds to the fishery manager's absolute power.
The powers of NMFS, or any enforcement agency, must be clearly limited. The right of search without a warrant MUST BE EXPLICITLY limited to boats at sea or at the dock with fish aboard. As it stands now, they can interpret the law at their discretion to even go so far at to enter a home to search if they desire. The practice of entering coolers, without good reason, and dumping boxes of fish to look for "contraband" has got to stop. It flirts with totalitarianism to allow ANY agency the right to abridge our Constitution, no matter what the "justification", especially when law-abiding citizens are denied the rights granted under the Constitution that even common criminals receive.
NMFS should NOT have any seats on the Council and be clearly limited to the role of a support agency to the Councils.
The Council, and its subpanels, should be empowered to engage outside legal counsel and fishery consultants for advice. LIMITED ENTRY
The practice of limiting participants to ANY fishery must be banned altogether. The stocks themselves and the marketplace have, for literally hundreds of years, OBJECTIVELY decided who should fish for a living and who shouldn't. The system has always worked and done a damn good job. It is the foundation of the strength of commercial fishing and any scheme changing that is bound to introduce inefficiency [[and weakness]] through diminished competition.
The fisheries of the ocean are a public resource and should be available to every citizen of the United States, not just a privileged few. Limited entry introduces artificial values that have no bearing on any man's or right to fish. It used to be that ANYONE could enter a fishery with literally nothing and work his way up. At the end of his time (day, week, month, year, lifetime), he got out of it exactly what he deserved (money, satisfaction, way-of-life, etc.). Sure anyone could have a (un)lucky shot at it but the rule held pretty much true. Today surf clam licenses are selling for more than $70,000 [[ Actually today (1996) they are well into six figures]] .
In the event that landings must be limited, then each participant should have the right to share in those landings equally by law. It is inherently unfair to penalize prudent owners (those who didn't expand catch capacity) and reward those who created the problem by increasing their catch capacity (larger boats, equipment, etc.). Further said shares must be NON-encumberable and NON-transferable.
Fishery managers salivate over limited entry for three reasons:
No proxy votes should be allowed. A stand-in cannot be expected to understand all the ramifications of a decision if he hasn't been a part of the process.
It is only natural bureaucracy (or any established constituency) is resistant to restriction to its authority. In this case , it is important to keep in mind that NMFS mastered the "art" of sophisticated semantics, rationalization and justification. After all, if a fishery isn't in "imminent danger", what need of fishery managers?
Fishing has THRIVED in this country for more than 400 years. Certainly there are ups and downs [cycles], but commercial fishing was, in reality, one of the most healthy industries in the country [Now quite literally the opposite after an additional 11 years of government management.]. We adapt[ed] quickly to market and environmental changes. "Under-utilized" or "over-harvested" species are clearly a function of the marketplace and always have been. If one listens to NMFS [and its fellow travelers - "environmentalists and university "prostitutes" (see List 1 Explanations)] one has to wonder how [in the hell] the industry survived before they came on the scene (the 1976 FCMA). It's easy to compare our "inshore" fleets (1-10 day trips) with the huge [subsidized] factory ships of other countries [now long since bankrupted] and come to the conclusion we are behind the times. In absolute fact, just the opposite is true. If there was money to be made, Americans would be there and we wouldn't need NMFS to tell us.
Personally, I was forced to leave the Surf Clam industry in 1979 after a year or so of the implementation of the Surf Clam Plan. As an outspoken critic of NMFS, I'm sure they were glad to see me leave. In the spring of 1983, a NMFS enforcement agent came on my dock and insisted on inspecting my coolers and packing facilities. I refused him admittance [in no uncertain terms and in language any fisherman would understand] as he didn't have a warrant. (If not my government, I do believe in the Constitution of the United States.). He had no reason whatsoever to believe I was doing anything against regulations. I believed it to be directed harassment (which he later admitted but denied in administrative hearing [Commerce Kangaroo Court].
Four days later, four obviously armed appeared at my home AT NIGHT to serve me with two civil violations of the FCMA. Two uniformed officers literally stood in the street "AT THE READY" with their hands on their guns while the other two served the papers. Their intention obviously to frighten my family, intimidate my neighbors and impress me with their power. They succeeded on two counts anyway.
One violation was for interfering with enforcement officer in his duties. The other was not being a pleasant person. The administrative penalties were $2,500 each. I requested an administrative hearing and was granted one [I was told by my attorney I was not allowed a jury trial which I've since found out was wrong) about six months later before Hugh Dolan, the sole Administrative Law Judge for NMFS.
My attorney, Marlene Ford, defended on Constitutional grounds of free speech (long ago decided in the US Supreme Court in similar cases) and of unreasonable search and seizure (long ago decided in the US Supreme Court in similar cases). Six months later, Mr. Dolan handed down his decision - The fine was increased for $5,000 to $50,000, the limit under the FCMA. [It's since been raised considerably] One can only speculate what the penalty would have been had I had any previous offenses. Naturally we appealed and the case is now pending in the US Court of Appeals. [[I eventually lost there and the next step was the Supreme Court. In the meantime I had a massive stroke (while finishing this paper ironically - but that's another whole story). I ended up settling for the original fine of $5,000 as I had neither the emotional nor physical strength to continue, plus my lawyer bailed out on me after the first hearing.]]
Accordingly, a formal investigation into the intimidating practice of the Administrative Law Process in the Department of Commerce is in order [[It's my understanding that in every case Mr. Dolan has heard, the outcome has been similar to mine]]. It is clear and practical denial of a citizen's rights and constitutes an abusive excess in our democracy.
Also it would be enlightening to have a cost/benefit analysis of NMFS done by an objective, outside party. The Office Budget and Management does this often in the Department of Defense.
[[One paragraph deleted here that is no longer relevant. I no longer believe anything can change. We have long gone past the point of no return]]
Thank you for your attention.
There's a lot more to add since then and I probably will in the coming months/years. If you view what you have read as a microcosm of our country and extrapolate it out a thousand fold, there's little hope for the future of our country. I do this just to "get it out".
I hope you'll check back every once in awhile.