When Congress created the Regional Fishery Management Councils under the Magnuson Act, it was felt that user groups with an interest in the resource would act in a manner which would protect that resource and ensure the future health of our fisheries.... Now, rightly or wrongly, many people feel the Councils and their members are acting unfairly. If this perception of unfairness is correct, then Congress definitely must take strong action to rectify this problem ... even if it comes down to only a matter of perception. Congress, in enacting the Magnuson Fishery Conservation and Management Act of 1976 (MFCMA), created a unique system for the regional management and conservation of U.S. fishery resources. Central to this system are eight Regional Fishery Management Councils. Comprised of those most knowledgeable about and interested in the fisheries, the Regional Councils promised to be an innovative solution to the conservation of common fishery resources, potentially incorporating the economies of cooperative management into the U.S. fisheries management scheme. However, upon implementation of the MFCMA, the problems facing U.S. fisheries changed. Competition among U.S. fishermen replaced concern over foreign fishing. The decisions of the Regional Councils increasingly involved economic allocation. In addition, as the MFCMA was amended over time, certain checks on Council power eroded. The original Congressional delegation of authority to manage fisheries, once carefully balanced between the Secretary of Commerce and the Councils, became heavily concentrated in the Councils. The Regional Councils, comprised of individuals making economic decisions about scarce resources which could benefit them personally, with few checks on their authority and little oversight, were viewed in a new light. The public and user groups not represented on the Councils quickly noted the conflicts of interest inherent in the system and denounced them as improper. Many now perceive the Councils as corrupt. The subject has been a matter of great debate, prompting numerous congressional hearings. Legislative solutions are now before Congress. Allegations that the interested Councils were making improper management decisions peaked during the battle between the Alaskan onshore processors and Washingtonian factory trawlers in the early 1990s. When the North Pacific Fishery Management Council decided to allocate a percentage of the catch in certain fisheries to vessels serving the onshore processors, the measure was decried as the "Shoreside Preference Amendment" by the factory trawlers. Allegations of improper and interested behavior by Council members were made and eventually resulted in an investigation by the Inspector General into Council behavior. In addition, a congressional hearing was held to look into this investigation and to explore solutions to the Council conflict dilemma. This Comment will explore the problem now facing Congress and will evaluate the proposed solutions now being debated in the two Houses. Initially, the concept of cooperative management, one possible theoretical justification for the existing Council system, will be discussed. Next, the original management system put in place by the MFCMA will be examined. This section will be followed by an explanation of how the power structure behind that system has evolved over time. The problems created by the present imbalance in the Council power structure will then be illustrated by a case study of the allegations made regarding the Council in the North Pacific. Finally, possible solutions to the problem, contained in two bills currently before Congress, will be evaluated in light of the potential of the MFCMA to create a system of cooperative management of the nation's fisheries.
Teresa M. Cloutier,
Conflicts Of Interest On Regional Fishery Management Councils: Corruption Or Cooperative Management?,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol2/iss1/4