, Gloucester, MA

June 28, 2013

Letter: Congress must get serious on Magnuson

Gloucester Daily Times

---- — To the editor:

The passing of Richard Gaines, investigative reporter for the Gloucester Daily Times, silenced a voice that illuminated governmental excess in regulating the fishing industry.

Thinking about Richard’s untimely death, I wrote the following memorial on the future of the Magnuson-Stevens Act, the law that governs fisheries management in the U.S.

The Magnuson-Stevens Act is scheduled to be reauthorized this fall. Rumor has it that a material reauthorization is unlikely because anticipated changes are anticipated to be controversial.

Failing to materially reauthorize the act is a serious lapse in public policy. The present version of the act does not protect the fishing industry and the public from governmental excess, because, as a practical matter, the current form of the act does not ensure the operation of the checks and balances among the legislative, judicial, and executive branches.

Contrary to constitutional intent, the fisheries are regulated by the bureaucracy with little real input from the legislative and judicial branches of government.

This dysfunction among the branches of government is bad for the fishing industry and the public. Right now, of 20 stocks of groundfish, 11 stocks are claimed to be overfished while 10 stocks are claimed to be subject to overfishing.

At the same time, however, roughly 50,000 tons of fish that could be caught without overfishing are not caught. The underfishing of 50,000 tons of fish is a waste of $150 million at the dock, or $600 million by the time the fish leave the economy.

In September 2012 the acting Secretary of Commerce formally declared the fishery a disaster. Despite this declaration, there has been no governmental reaction or policy to mitigate the disaster. And the beat goes on. The Attorney General of the Commonwealth of Massachusetts has just filed a complaint arguing that NOAA is managing fisheries with little cognizance of the National Standards of the Magnuson Stevens Act.

It would be misguided to place the blame for all of this on NOAA. We need to look at the root causes of the problem which involve the dynamics of the interactions among the three branches of government.

Key parts of the Magnuson-Stevens legislation are equivocal or ambiguous. Ambiguous and equivocal language enables the bureaucracy to construct its own interpretation of the law. These interpretations are issued as “guidelines.”

The guidelines are specified as not having the force and effect of law, yet as a practical matter, the courts seem to think that the guidelines do have that force and effect. The guidelines often change what seems to be the original intent of Congress.

One would think that this vicious cycle where the intent of Congress is modified by the bureaucracy could by resolved by the third branch, the judiciary. But again, as a practical matter, this is not the case.

Under our legal doctrine, the courts grant considerable deference to the bureaucracy, and the bureaucracy interprets the legislation in ways that may not be consistent with the intent of congress. Even though the guidelines may be contrary to the intent of congress, the system is structured so that congress has little practical opportunity to intercede.

The courts do not intercede because of the deference that the courts grant to the bureaucracy. So in effect our governmental system of checks and balances that often works well, is not available to the fishing industry or the affected public.

Congress must treat the reauthorization of the Magnuson Act in a serious way.


Charter Professor of Marine Science and Technology

School for Marine Science and Technology, University of Massachusetts-Dartmouth