A Less Tragic Commons?: Using Harvester and Processor Quotas to Address Crab Overfishing

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 4SPRING 2003

COMMENTS

A Less Tragic Commons?: Using Harvester and Processor Quotas to Address Crab Overfishing

Avi Brisman(fn*)

I. Introduction

Many of the Bering Sea/Aleutian Islands (BSAI) crab fisheries are in serious decline or have collapsed. In order to prevent a tragedy of the commons,(fn1) the North Pacific Fishery Management Council ("NPFMC" or the "Council"),(fn2) which is responsible for fishery management in the Gulf of Alaska under the Magnuson-Stevens Fishery Conservation and Management Act(fn3) (the "Magnuson Act" or the "Act"), has recently adopted a preferred alternative(fn4) for rationalization that would replace the existing License Limitation Program (LLP) for several BSAI crab fisheries.(fn5) (fn6)

The preferred alternative is a "three-pie voluntary cooperative program," which attempts to protect the interests of harvesters (crab fishermen), processors (corporations who collect the crabs from the harvesters and prepare them for market), and designated regions that have a historic interest in the crab fisheries.(fn7) Under the three-pie voluntary cooperative program, harvesters would be allocated a certain percentage of the total allowable catch (TAC) of a specific crab fishery. In other words, each harvester would be allowed to catch up to a certain amount, measured in pounds, of the total number of crabs that could be caught in any given year. This allocation would come in the form of an individual fishing quota (IFQ).(fn8)

Processors, in turn, would be guaranteed that they would receive a certain percentage of the total crabs caught.(fn9) These processing privileges-known as individual processing quotas (IPQs)-would mean that harvesters possessing IFQs would be required to sell their crabs to certain processors (those holding IPQs), but could not sell to any processor who had already met its quota limit.(fn10) Finally, the Council included a regionalization program as part of its preferred alternative in order to "protect communities from the disruption of the current pattern of landings and processing that might be caused by changing the management of the BSAI crab fisheries . . . ."(fn11) Under the regionalization program, certain regions would be guaranteed that processors "would be required to accept delivery of and process crab in the designated region."(fn12)

Up until October 1, 2002, there was a moratorium on all new IFQ programs.(fn13) Although the moratorium expired on October 1, 2002, no new IFQ program can be put into place without approval from the Secretary of Commerce.(fn14) At the time of this Comment, there is still debate over whether the moratorium should be extended.(fn15) The most controversial aspect surrounding the reauthorization of the Act concerns the inclusion of processors' shares as part of an individual quota system.(fn16)

Since IPQs are unprecedented in the United States,(fn17) this Comment will first discuss some of the legal issues concerning IPQs and will then consider the benefits and costs of crab rationalization. This Comment argues that although NPFMC's three-pie voluntary cooperative program will likely benefit processors at the expense of harvesters, this trade-off is necessary to protect the economic stability of coastal fishing communities. This Comment concludes, however, that NPFMC's three-pie voluntary cooperative program should be regarded as only one of the steps necessary to protect the crab fisheries from depletion.

Part II of this Comment provides a brief overview of the history of the Magnuson Act. Part III describes the current status of the BSAI crab fisheries and the need for crab rationalization. In Part IV, this Comment examines NPFMC's preferred alternative-the three-pie voluntary cooperative program-as set forth in its Bering Sea Crab Rationalization Program Alternatives: Public Review Draft (May, 2002) and Summary of the North Pacific Fishery Management Council's Bering Sea and Aleutian Islands Crab Rationalization Program Submitted to the United States Congress, August, 2002. Part V looks at the legal issues surrounding processor quotas, focusing specifically on the possible equal protection, takings, and antitrust concerns that a processor quota system raises. After concluding that NPFMC's IPQ program should withstand any legal challenges, this Comment, in Part VI, examines the benefits and costs of rationalization to harvesters, processors, consumers, and the environment. Although NPFMC's three-pie voluntary cooperative program will likely benefit processors at the expense of harvesters, this Comment, in Part VII, argues that this trade-off is necessary in order to protect the economic stability of coastal fishing communities. Finally, this Comment concludes that as an environmental mechanism for ensuring the sustainability of the crab fisheries, NPFMC's three-pie voluntary cooperative program should be regarded as a step, but not the final step, towards that goal.

II. History of the Magnuson Act

In 1976, Congress passed the Fishery Conservation and Management Act,(fn18) in order "to assert U.S. federal authority over non-U.S.-flagged vessels operating within a zone extending 200 nautical miles from the U.S. coastline, coincident with ongoing negotiations of the UN Convention on the Law of the Sea for the same extension of jurisdiction for all coastal nations."(fn19) In essence, the Act reflected Congress's belief that "coastal fish stocks would suffer from the tragedy of the commons unless the tragedy was averted through the declaration of national sovereignty, an assertion of exclusive property rights at the national level."(fn20) The Act also established eight Regional Fishery Management Councils(fn21) ("Regional Councils" or "Councils") to develop, administer, and revise fishery management plans ("FMPs")-plans which regulate fishing for the species in the Councils' respective geographical jurisdictions in order to prevent overfishing and achieve "optimum yield."(fn22)

Initially, the Councils attempted to control fishing pressure using traditional forms of fishery management authorized under the Act, such as closed areas, closed seasons, size limits, trip limits, crew limits, and gear limits.(fn23) During the 1990-96 period, however, in response to the international trend in fisheries management, the policy regarding the protection of fish stocks shifted from an emphasis on open access to fisheries to a focus on limited access fishing licenses, such as individual transferable quotas (ITQs). By late 1996, the Regional Councils had adopted ITQs for three fisheries: the Atlantic surf clam and ocean quahog fishery, the Alaska halibut and sablefish fixed gear fishery, and the South Atlantic wreckfish fishery.(fn24) Many Alaskan fishermen, however, "feared that the adoption of [new] ITQs would place them at a disadvantage with respect to a larger offshore trawler based in Washington,"(fn25) who would bid up the prices and purchase quota shares.(fn26) Thus, despite the success of ITQs in helping to deal with overcapitalization,(fn27) the 1996 Sustainable Fisheries Act, which reauthorized the Magnuson Act, imposed a moratorium on all new ITQs until October 1, 2000.(fn28) In December 2000, the Consolidated Appropriations Act of 2001 extended the moratorium until October 1, 2002.(fn29) The Consolidated Appropriations Act of 2001 also included an express directive to the North Pacific Fishery Management Council (NPFMC) to "examine fisheries under its jurisdiction to determine whether rationalization is needed and provide an analysis of several specific approaches to rationalization."(fn30) (This analysis is the Bering Sea Crab Rationalization Program Alternatives: Public Review Draft and the subsequent Summary of the North Pacific Fishery Management Council's Bering Sea and Aleutian Islands Crab Rationalization Program Submitted to the United States Congress, August 2002.)(fn31) On July 10, 2002, the U.S. House of Representatives Committee on Resources approved the Magnuson-Stevens Act (H.R. 4749) lifting the moratorium on individual quota systems.(fn32) Although an amendment by Congressman George Miller (D-CA) was added to the bill to prohibit IPQs, an amendment by Congressman Jay Inslee (D-WA) exempted the North Pacific from Congressman Miller's amendment.(fn33) On October 1, 2002, the moratorium on new individual fishing quota (IFQ) programs expired. Nothing has come of H.R. 4749 since July 10, 2002.

III. The Need for Crab Rationalization

A. Decline of the Crab Fisheries

According to the Alaska Marine Conservation Council, "[n]early every crab species [in Alaska] is at extreme low abundance."(fn34) This, however, is not a recent phenomenon. In the past twenty years, the following crab fisheries in Alaska have collapsed: the Kodiak red king fishery closed in 1984;(fn35) the Aleutian Islands red king(fn36) and Norton Sound red king fisheries were both considered "diminished" as of March 2000; the Gulf of Alaska tanner fishery closed in 1995; the Bering Sea tanner (bairdi) fishery closed in 1997; and the St. Matthew blue king fishery was declared "overfished"(fn37) in 1999 and closed the same year.(fn38) In addition, during the 1980s and 90s, a number of crab fisheries were closed for one or more years due to low abundance: the Bristol Bay red king crab fishery, which was closed from 1994-95; the Pribilof Islands red king crab...