 Praised for Solving $40 Million Dilemma Action preserves best available science to set fishing opportunities November 5, 2003
Ron Clarke, Executive Director of the Marine Conservation Alliance, praised the Council's action in the face of a thorny dilemma."The law directs the Council to use the best available science, but a Court order based on another law prohibited them from doing so," Clarke said. "It seemed like an unsolvable puzzle." The previous TAC-setting cycle involved an annual review of fishery surveys conducted by the National Marine Fisheries Service (NMFS) and other scientists, but that scheme was rendered obsolete by a U.S. District Court Summary Judgment in a California case regarding fishery "bycatch of non-target species (Natural Resources Defense Council, Inc. v. Evans, 168 F. Supp.2d 1149 (N.D. Cal. 2001)). The Court decision required expansion of public notice and comment periods in order to satisfy the Administrative Procedures Act, not only in California, but also in all coastal regions of the U.S. Unfortunately, the new, longer lead times for public notice meant the public couldn,t be adequately informed of the existence of new scientific information, making it impossible to use the most up-to-date fishery surveys. According to information provided by MCA, if fishery managers were forced to rely on the previous year's scientific surveys, even though more recent data were available, they would violate the Sustainable Fisheries Act and its parent, the Magnuson-Stevens Fishery Management and Conservation Act. Those laws require managers to use the "best available science. On top of that conflict, the Council felt forced to consider pre-emptive reductions in future TACs. Managers believed it only prudent to set more conservative limits if they had to set those limits based on outdated information. Economists estimated imposing such reductions would cost the fishing industry $40 million annually in lost opportunity costs. "The MCA saw the entire situation as an unfortunate step backward for science-based, sustainable fishery management," Clarke said, "but nobody seemed to have a better idea." The MCA's Board of Directors sought legal assistance, and hired the Washington, D.C. law firm of Brand & Frulla to develop new alternatives. In October 2002, the MCA presented two new options to the Council as they prepared to take final action on the slate of proposals before them. The Council concluded the new options warranted further analysis, and postponed their selection of a TAC-setting scheme. A year later, they adopted a modified version of the MCA's proposal. The Council's new process will establish harvest specifications for 18 months (Year 1 and first half of Year 2) for Bering Sea, Aleutian Islands, and Gulf of Alaska groundfish species. At the beginning of that cycle, the public will be notified of the possibility new data will be used as they become available. "We're pleased to have been able to offer a means for fishery managers to continue to manage Alaska groundfish fisheries as required by the Magnuson-Stevens Act -- based on the best available scientific information while providing meaningful opportunity for useful public comment," Clarke said. "This new system is a victory for everyone involved, and we remain dedicated to finding innovative, non-litigious solutions to fishery management problems. The unforeseen consequences of NRDC v. Evans show how litigation can have unintended, unanticipated, potentially enormous negative effects on resource management." The Marine Conservation Alliance
was established in 2001 by fishing associations, communities,
Community Development Quota groups, harvesters, processors, and
support sector businesses to promote the sustainable use of North
Pacific marine resources by present and future generations.
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