"We do sometimes hope the fish appreciate what we are doing for them. "
Commerce Department lawyer
Economists call it the problem of the commons, or how to control the exploitation of a resource no one owns.
In the case of one such resource-the fish in the ocean-Congress three years ago came up with the inevitable answer: have government do it.
The result of this is that on several recent mornings the Federal Register-usually driest of all dry publications-has been converted into a kind of regulatory aquarium.
Three weeks ago there were 51 pages given over to the stone crab. Other portions have been dedicated to the northern anchovy, the surf clam and ocean quahog, Pacific salmon.
The federal government has become a kind of waterborne resource referee, allocator of food, protector of protein, making in nature's place such exquisite judgments as how many anchovies to keep back from commercial fishermen off the California coast as food for the brown pelican, an endangered species.
By drawing a "line of separation" off the western coast of Florida in the Gulf of Mexico, the government has successfully shut down a shooting war between stone crab and shrimp fishermen there. ("Tempers flared . . . one boat was riddled by bullets from an automatic weapon," the normally staid Federal Register reported.)
The Commerce Department, supposedly the voice of business in the government, has intervened in behalf of fish to stop construction of an oil refinery in Maine. A semi-independant fishery council set up by the department has spoken out-also in the name of fish-to keep Philadelphia from dumping sewage in the ocean.
The government now sets catch quotas for many kinds of fish; it directly controls what in other economic sectors would be called production and supply. For conservation reasons, it has told New England fishermen they cannot catch as many cod and haddock as they want.
Off the mid-Atlantic states, however, it has made an opposite decision on butterfish. There it is insisting on a catch quota higher than the fishermen want. The fishermen want to keep it low to keep out the Japanese.
All these finny regulations are the small fry of an act of Congress, the Fishery Conservation and Management Acts of 1976. That was the legislation in which Congress proclaimed the 200-mile limit, in effect enlarging the national boundaries and restricting entry of foreign fishermen into waters up to that distance off U.S. shores.
That exclusionary aspect of the act was the one that got all the attention. It obscured the act's more basic aim, which was conservation and management. As the foreigners who had been depleting the stocks inside the 200-mile zone moved out, the Feds were to move in, promulgating fishery management plans.
The fishery act is one of a surprising number that Congress has passed piecemeal in recent years to regulate use of the ocean. The others involve such varied subjects as offshore oil drilling, ocean dumping, deep-sea mining, coastal zone management, marine sanctuaries, oil spills. The ocean out to the 200-mile line is like one of the old federal territories in the West, only more regulated. "You, as a U.S. citizen, can't really do much of anything out there anymore without getting federal permission," Dail Brown, one federal expert, observed recently.
Congress was, as it often is, artfully vague in writing the fishery act.It instructed the Fisheries Service to deal benevolently with fishermen as well as fish, to promote conservation at sea but not to the point of ignoring economic and social considerations on land. In an inventive effort to decentralize the regulatory process, the act established eight regional councils to be appointed by the secretary of commerce and to do the actual drafting of the required fishery management plans subject to the secretary's final approval.
Eight of these plans have been adopted so far; about 70 are contemplated.
Of the eight adopted plans, perhaps the most fought-over is the one for Atlantic groundfish-the cod, haddock and yellowtail flounder caught mainly off New England, and called groundfish because they are found mainly along the ocean bottom. This was one of the earliest plans to take effect, and also one of the most depleted fisheries.
The groundfish conservators have spent most of their time retreating. The cod and haddock quotas set when the plan was drawn up in 1977 have been repeatedly relaxed as the fishermen have bumped up against them. On several occasions instead of giving further ground the New England regional council has tried to close the cod and haddock fisheries, but the resulting uproar has always been greater than it could withstand.
Yet even as amended, the groundfish plan may be having part of its intended effect. There are some preliminary signs that the cod and haddock stocks are recovering.
Part of the problem in New England land was that, even as Congress drove the heavy-fishing foreign vessels out of the fisheries, many new U.S. vessels eagerly came in. Passage of the fishery act produced a fair boom in bank loans, boat-building and new entrants into New England fishing waters. This new-entrant problem has been so great that the council has seriously considered limiting future entry through a permit system, creating a kind of taxi medallion for the high seas. The mid-Atlantic council has already done this in the surf clam fishery, for the same reasons.
The inventive mid-Atlantic council also has proposed-unsuccessfully so far-one other twist to the system. For butterfish, instead of trying to raise the catch quota, as in New England, the mid-Atlantic fishermen are fighting to keep it down. They are trying to do for this one kind of fish something a little like what farmers do with acreage set-asides: improve their position not by increasing but by restricting production.
The way the fishery management system works, the council first are supposed to set so-called optimum yields for each species mainly on biological grounds: how many fish are out there, how many can be safely caught, and how many must be left in the water for reproduction of the species or as food for other fish or predators like that brown pelican.
The next step is for the council to decide how much of the optimum yield U.S. fishermen can be expected to catch and sell. Then foreign fishermen are given permits to take what is left.
On a purely biological basis, it is pretty well agreed that it would be safe to catch 16,000 metric tons of butterfish a year off the mid-Atlantic and other East Coast states. It is also pretty well agreed that the most that U.S. fishermen can now catch and sell is about 7,000 metric tons. That would leave 9,000 tons for interested foreign fishermen, mainly the Japanese.
But the U.S. fishermen say they could sell many more than 7,000 tons-perhaps eventually all 16,000 tons, in fact-if only the Japanese would buy from them instead of from Japanese boats.
To force the reluctant Japanese to do this, the mid-Atlantic council last November proposed setting this year's optimum yield or maximum catchable amount at 11,000 instead of 16,000 tons, leaving only 4,000 for foreigners. Buy American or the butterfish stay in the sea, it proposed saying.
The Japanese protested through the State Department. The Commerce Department recently disapproved the butterfish plan, the first such formal disapproval in the program's history (though other plans have been approved only after much negotiation and amendment). What will happen next is unclear.
The government is making other kinds of allocations, including rights to use the ocean.
The crab-shrimp war off Florida is one example. For various reasons, including the 200-mile limit that Mexico asserted several years ago in response to ours. U.S. shrimp fishermen who used to fish in the western Gulf of Mexico have moved to the east. They began to trawl in waters off the west coast of Florida where stone crab fishermen had their traps. Trawls damaged traps; trappers retaliated against trawlers, in a few cases violently. The government responded by zoning the ocean.
The most basic zoning issue off-shore, however, involves oil-and in this, too, the fishery management act has become involved.
Last year environmental groups and others brought suit to keep the Interior Department from leasing oil-drilling rights off the New England coast, and particularly on the Georges Bank, and important fishing area. One argument thrown at the leasing plan was that it could damage the fishing ground the Commerce Department was seeking to restore through the fishery act.
The proposed Georges Bank lease sale was stopped.
In part, says Sarah Bates, an attorney with the Conservation Law Foundation of New England, which was one of the plaintiffs in the suit, "this was a case of two competing industries.
"You didn't have peope saying simply that they wanted to watch the birds. It was hydrocarbons versus food. And the world is at least as desperate for protein as oil and gas."
But the government's own lawyers are not so sure how far the fishery act can be invoked to block nonfishing uses of the ocean. "We can keep fishermen out of fishing grounds," one noted wryly, but whether oil companies, no one knows yet.