Who Says That Fish Filet Is Sustainable? Advocacy Options and the Lessons of Federal Fisheries Management

• Author: Keith W. Rizzardi
• Pages: 189-210

189

Chapter 8:

Who Says That Fish

Filet Is Sustainable?

Advocacy Options and the Lessons

of Federal Fisher y Management

Keith W. R izza rdi

I. Participation: Working With Government in a Public Decision

Process ................................................................................................190

II. Litigation: Resisting the Government in the Federal Courts ................196

III. Certication: Replacing the Government in the Marketplace ..............202

Conclusion ...................................................................................................209

How much shing is too much? Is it susta inable to eat that sh  let,

or are there not enough sh left in the sea? And, most importa ntly

for purposes of this chapter, who decides? Seeking answers to these

questions, environmental and animal welfare advocates can serve important

roles as social engineers who help to avoid the overexploitation of the oceans

and the tragedy of the commons. But with a complex system of public laws in

place, implemented by a capable governmental entity that serves a wide range

of sta keholders, advocates are just one voice in the great debates over how

humans interact with other species and ecosystems.

is chapter discusses three important tools that policy advocates use

in the management of federal sheries.1 e primary law governing shery

management in federal waters is the Magnuson-Stevens Fishery Conservation

1. Nearshore waters may be managed by state and local governmental entities, too. Many states have

agencies dedicated to the implementation of state laws related to shery management. See, e.g.,

Association of Fish & Wildlife Agencies, State Fish & Wildlife Agencies, available at http://www.

shwildlife.org/index.php?section=social-media (last visited May 3, 2015). In addition, the states

engage in regional coordination of their shery management eorts with each other through state

commissions. See, e.g., Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §5101;

Gulf States Marine Fisheries Commission, Programs, available at http://www.gsmfc.org/default.

php?p=programs.htm#:content@5:links@6 (last visited May 3, 2015), and P S M

F C C D (2010), available at http://www.psmfc.org/wp-content/

uploads/2012/02/Publications_PSMFC_Compact_2010_compact1.pdf.

190 What Can Animal Law Learn From Environmental Law?

and Mana gement Act.2 e law creates numerous opportunities for notice,

comment, and oral or written participation in public meetings, councils and

advisory committees, and the rulemaking process. Alternatively, some sh-

ery advocates choose to litigate the public laws in the courts, whereas others

create new private systems of shery management in t he marketplace. Each

eort has benets, but has economic and political consequences, too. us,

while the Magnuson-Stevens Act reects a federa l process governing sh in

the oceans, its implementation oers lessons and insights that readily apply

to other areas of animal law. Part I of this chapter explains the reg ulatory

framework for sheries management a nd how sta keholders participate in

the decisionmaking process to determine an appropriate level of sustainable

shing. But as Part II notes, some dissenters may second guess the govern-

ment’s decisions, choosing to litigate the outcome of the public process in the

courts. Part III further explains how private alternatives have emerged, with

nongovernmental entities creating their own market-driven programs and

standards to certify a shery as sustainable, or not. E ach of these options of

participation, litigation, and cert ication revea ls risk s, benets, and lessons

that animal advocates can learn from the shery management experience.

I. Participation: Working With Government in a Public

Decision Process

e U.S. sheries are often considered among the best managed in the

world, t hanks to the comprehensive framework of the Magnuson-Stevens

Act (MSA).3 In its ndings, the MSA rec ognizes that sheries are renewable

resources: “Fishery resources a re nite but renewable. If placed under sound

management before overshing ha s caused irreversible eects, the sheries

can be conserved and maintained so as to provide optimum yields on a con-

tinuing basis.”4

2. Magnuson Stevens Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331

(1976) (amended by the Sustainable Fisheries Act of 1996, Pub. L. No. 104-297, 110 Stat. 3559 and

further amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization

Act, Pub. L. No. 109-479, 120 Stat. 3575 (2007) (codied at 16 U.S.C. §§1801-1891)).

3. e MSA has been praised by conservative congressmen and progressive charities alike. See, e.g., Press

Release, House Committee on Natural Resources, Chairman Hastings Discusses Magnuson-Stevens

Act Reauthorization at Fisheries Conference (May 7, 2013), available at http://naturalresources.

house.gov/news/documentsingle.aspx?DocumentID=332834 (“Because of this framework the United

States has arguably the best managed sheries in the world.”); Making Progress in Ending Oversh-

ing, P C T, May 22, 2014, http://www.pewtrusts.org/en/research-and-analysis/

fact-sheets/2014/05/22/making-progress-in-ending-overshing (“anks to the Magnuson-Stevens

Act, a cornerstone in one of the world’s best shery management systems, our nation’s ocean sh are

recovering from a history of overshing.”).

4. 16 U.S.C. §1801(a)(1).