Membership of the Eight Regional Fishery Management Councils in the United States: Are Special Interests Over-Represented? Thomas A

Marine Policy 27 (2003) 193–206

Membership of the eight Regional Fishery Management Councils in the United States: are special interests over-represented? Thomas A. Okey* Fisheries Centre, University of British Columbia, 2204 Main Mall, Vancouver, BC, Canada V6T 1Z4 Received 27 October 2002; accepted 1 December 2002

Abstract

The failure of modern fisheries management is blamed on myriad socio-economic and technical problems, but the most fundamental reason for failure might be the overwhelming dominance of extractive interests in participatory decision-making venues. In the United States, commercial fishing interests made up 49% of appointed voting members of the eight Regional Fishery Management Councils between 1990 and 2001; recreational fishing interests made up 33%, and all other interests combined made up 17%. Dominance of commercial fishing representation over the ‘other’ group was statistically significant, and this unequal apportionment of interests remained statistically stable throughout the 12 years of reporting. Contemporary economic sensibilities within this ‘industry-captured’ regulatory process generate perverse incentives for management decisions that conflict with, and can undermine, national sustainability goals and standards, even when those standards are logically sound and agreed to by consensus. Positive feedbacks in the system reinforce the unequal representation of interests. The relative dominance of these interests can be adjusted through an experiment that legally mandates an apportionment formula designed to optimize the welfare and interests of the general public, thus testing the notion that increasing the relative representation of general public interests would improve the lacklustre performance of US federal fisheries management. r 2003 Elsevier Science Ltd. All rights reserved.

Keywords: Alternate states; Democracy; Conﬂict of interest; Fishery management councils

The cause of ineffective management often lies with fisheries and marine ecosystems are stimulating notable institutional deficiencies expressed both in terms of and ongoing reforms to fisheries management systems functions and assemblage. and practices. United Nations Food and Agriculture Organiza- These reforms include re-examination of technical tion [1] approaches to assessment and management by re- ywhenever any Form of Government becomes thinking the erroneous assumptions that underpin destructive y, it is the Right of the People to alter or contemporary fisheries biology. Dubious assumptions abolish it, and to institute a new governmenty include independence of stocks, populations, and life Jefferson et al. [2] stages from each other and from habitat characteristics; regularity (spatial and temporal homogeneity) of environmental forces; universality of ‘recruitment com- 1. Introduction pensation’ at lowered stock sizes (i.e., disproportio- nately high recruitment); and the ecologically narrow There is widespread agreement that fisheries and notion of ‘surplus production’ (unutilized biological marine ecosystems are in a state of crisis throughout the production). Fisheries management problems also stem world [3–14]. Strong warnings from scientists and the from failures to account for inherent uncertainties emergence of common knowledge about the plight of throughout the fisheries assessment and management process [15]. Reform initiatives also reflect the recogni- *Tel.: +1-604-822-1639; fax: +1-604-822-8934. tion that a variety of socio-economic factors, E-mail address: t.okey@fisheries.ubc.ca (T.A. Okey). i.e., overcapacity and ‘over-dependence on fisheries’

0308-597X/03/$ - see front matter r 2003 Elsevier Science Ltd. All rights reserved. doi:10.1016/S0308-597X(03)00002-2 194 T.A. Okey / Marine Policy 27 (2003) 193–206 resulting from taxpayer subsidies is the most challenging study was to examine the central components of the US and fundamental cause of fisheries degradation and fishery management system to determine whether it has associated ecosystem degradation [11,15–17]. been fair and effective relative to American ideals and Direct participation of fishing people and organiza- fisheries policy objectives, and whether institutional tions in management decisions (‘co-management’) is reforms would improve US fishery management perfor- recognized as crucial because of the knowledge and mance. preferences that fishing people bring to the process, and US fisheries management decisions are currently the tendency for them to cooperate in resulting manage- deliberated by eight Regional Fishery Management ment regimes [18,19]. However, scrutiny of the composi- Councils, each comprised of a federal representative, tions and organizational structures of decision-making state representatives, and appointed members that bodies is increasing because of the recognition that have ‘knowledge’ of fisheries management and conser- inherent conflicts of interest and the institutional vation. The councils are constituted based on the exclusion of broader public interests might be a more premise that participation of fishing industries in fish- fundamental cause of management and government eries management decisions is crucial for successful system failures, particularly in fisheries [20,21]. The issue allocation and conservation of living marine resources, of representation of (general) public interests in fisheries and for increasing the likelihood of compliance with management has remained largely taboo within the fishery regulations. Fishing industries have a collective subculture of United States (US) fisheries management, interest in sustaining fisheries, and they sometimes in spite of perceptive early warnings by Pontecorvo [22] support conservative and responsible fishing strategies and other emerging criticisms e.g., [20]. This issue [23]. However, a natural tendency of capital-minded can no longer be ignored since conflicts of interest, fisheries sectors is to maximize short-term profit at the big money lobbying, disproportionate representation, expense of sustainability (and social and ecological and vote trading have come to the forefront of public considerations) thereby degrading the public value of debate in the US and around the world due to several the exploited resources [15,19,22]. This has been highly visible manifestations. These include domestic identified as ‘‘the fundamental cause of over-exploita- and global protests of the World Trade Organization, tion’’ in fisheries [11]. voting irregularities in the 2000 US presidential election, Almost two decades ago, the Director of the Office of the far-reaching Enron scandal, campaign finance Fisheries Management of the National Marine Fisheries reform debates in the US, and even the recent judging Service (NMFS) conceded that US fisheries are mana- scandal at the 2002 Winter Olympics in Salt Lake City, ged through industry lobbying, but he made it sound Utah. The pervasive corruption illuminated by these like this is a functional aspect of fishery management issues, or at least the perception of institutional [27]. It is now recognized that too much influence by the contempt for the public interest, has compelled citizens regulated industry in policy and management decisions to begin scrutinizing a variety of governmental and can lead to unsustainable fishing, degraded marine civic decision-making systems. Similarly, the tragedy ecosystems, and impoverished fishing communities of September 11th, and the rise of global terrorism simply because management systems tend to favor big have arguably increased public awareness and scrutiny money interests when they are structured (designed) to of domestic and global policymaking systems in be influenced by those interests [3,11,20,28]. This occurs egards to issues of fairness, equity, and justice—even because public agencies depend on the support of while mainstream public discourse has focused on legislators who, in turn, depend on the support of retribution. constituents, whose interests are often strongly distorted Nations and states around the world are attempting because industry lobbyists are usually the most influen- to institute equitable, effective, and sometimes adaptive tial of all constituents [29]. The direct and indirect forms of fisheries management or co-management influence industry has on agencies charged with regulat- [23–25]. Democratic and participatory management ing them leads to adverse impacts not only on marine structures that represent the interests of ‘‘all legitimate ecosystems and industry sectors, but also on the interest groups’’ and ‘‘the majority of stakeholders or opportunities and well being of a nation’s general the country’’ [11] are thought to be the best models for public, which is effectively not represented in fisheries successfully achieving stated fisheries objectives. The decision making [22,30]. The general pattern in the US is federal fisheries management model in the US is touted that councils dominated by industry (user group) as an attempt to implement a fair and effective system representatives make the decisions about exploitation [26]. Democratic ideals have always been a source of of public (marine fishery) resources. This has been pride in the US, including the notion that individual referred to as ‘capture’ of the regulatory or management rights and interests are protected, and that the interests process by industry [19,29]. Representatives of broader of the general public are represented in decisions public interests continue to have only token representa- regarding public resources. The purpose of the present tion, though some industry representatives subdue T.A. Okey / Marine Policy 27 (2003) 193–206 195 criticism by arguing that the general welfare is the same interests of the more general ‘owners,’ whose main as their personal business interests [Wilson in 20, and vested interests are restoration and sustainability. This is author’s personal observations]. consistent with the notion that participation of those Given the notion that institutionalized favoritism in with more immediate interests in the fishery resource decision making is the fundamental cause of fisheries (immediate user groups) is also crucial for success. This overexploitation (and related degradation of marine second pair of suggestions relies on the assertion that the ecosystems), rigorous independent audits of the compo- immediate user groups are more knowledgeable about sition and organizational structures of federal fishery key aspects of the fisheries, but less capable of making management systems in the US are warranted, especially sustainable decisions than the more general ‘owners.’ in light of the current fisheries crisis. The first such Management by ‘immediate’ stakeholders is bound to analysis was conducted by Pontecorvo [22] at the time of fail because they have vested interests that maximize the original enactment of the Fishery Conservation and short-term returns for themselves at the expense of long- Management Act. He concluded that ‘‘ythe act does term sustainability for the general public [15,22]. This not favor the general welfare’’ because the legislation seems to occur even when broad spectrums of technical and the resulting council organizational structure was and legal safeguards are in place, as in the complex designed to focus on the needs and interests of the regulatory matrix of US Fisheries Management [48]. domestic producers [industry], who thereby naturally Of course, all stakeholders are legitimate ‘owners,’ dominated the council system and the management but the ‘immediate’ stakeholder decision-makers are decisions relative to broader [consumer or conservation] either a small subset of the total pool of ‘owners,’ or interests. At that time, he found that commercial they are altogether different than the true and rightful interests made up 57% of appointed council member- ‘owners’ (in cases of traditional rights). Ultimately, ship, while recreational fishing interests and ‘general’ it is the responsibility of the trustees of such resources to interests made up 22% and 21% respectively. Congres- achieve the goals of the true resource ‘owners.’ It is sional hearings and investigations into allegations of only logical then that the trustees should primarily conflicts of interest leading to performance failure of US represent the interests of the general public (or local fisheries management exposed some fundamental pro- indigenous people). Furthermore, it is reasonable to blems with the system—serious abuses of the public argue that, since the main goals of the general public are interest were uncovered and the effective immunity of restoration and sustainability, industry interests would council members from federal conflict of interest laws fare better in the long run if decisions were primarily were revealed [20]. Since 1992, the NMFS has reported made by trustees of the general public interest, especially the apportionment of interests on these councils to the considering the modern failure of user-dominated fish- US Congress [31–40]. The limited analysis presented eries management. here was designed to stimulate a more rigorous review With these general issues in mind, the goal of this and external auditing process for this failing manage- study was to evaluate the structure and representation of ment system 25 years after its implementation, and to interests in the current system of US fisheries manage- suggest new institutional structures to test in the grand ment relative to the stated objectives and performance experiment of US fisheries management. of US fisheries management. The main pragmatic Any analysis and discussion of representation needs questions of the study were: (1) are the categories of to address the following general questions: Who are the interest groups equally (or equitably) represented on true ‘owners’ of natural ‘resources’? Are the stake- Regional Fishery Management Councils? and (2) is holders and the trustees the same as the ‘owners’? Who the fishery management system structured in a way that can best represent the interests of the true owners? What should reasonably achieve equal or fair representation is the best system for representing those interests? These of the various interests? A deeper question that emerged questions have been posed by Jentoft and McCay [19] during this investigation is, ‘can human-created systems, and others, and they deserve lengthy dissertations (see in this case a government system for resource manage- [41–43]), which I will avoid except to make two ment, persist at a sub-optimal ‘stable’ state with regards suggestions related to wild marine organisms: First, no to achieving identified objectives?’ If so, what types of person or group of people can own wild marine characteristics would indicate such a sub-optimal organisms, but if these organisms could be owned, the stable state? A related question posed by Ponticorvo true owners can only be the general populace of a nation [22] is, ‘‘Will the Act tend to favor one type of structure or state (or the world) [44,45] including future genera- over another? Or will the Act be neutral towards tions [46]. Fisheries are a ‘common property’ natural structure?’’ Finally, three examples of other fishery resource [47], though ownership or access often arguably management systems around the world are also belongs to ‘first nations.’ Second, ‘fisheries management’ examined with respect to their progress in re-inventing can achieve conservation objectives only if its organiza- their systems of interest group representation and tional structure adequately ensures representation of the participation. 196 T.A. Okey / Marine Policy 27 (2003) 193–206

2. Methods Normality was evaluated using histograms, even though ANOVA is robust to departures from normality The present analysis consisted of five components: [53]. (1) a review of the stated objectives of the Magnuson– The review of alternate fishery management systems Stevens Fisheries Conservation and Management Act of was limited mostly to the published literature. Discus- 1996 (MSA), the National Marine Fisheries Service sion of the California Marine Life Management and (NMFS), and the US Department of Commerce (DOC); Protection Acts are based on the texts of the respective (2) a brief review of the status of US Fisheries; (3) an laws and partly on the author’s experiences during early examination of the apportionment of interests on stages of designing those systems. Regional Fishery Management Councils in the US; (4) Combinations of approaches were used to evaluate a general examination of the organizational structure of whether the present system of representation persists at US federal fisheries management; and (5) a review of the a sub-optimal stable state. First, ‘stability’ was evaluated structure, composition, and reported success of three using the statistical approaches described above. Sec- alternative fishery management systems. ond, in the present context, ‘sub-optimal’ was evaluated The stated objectives of the MSA and the NMFS were only with respect to the status of US fisheries relative to taken directly from the Act [49] and the National US fisheries objectives, though it would also be reason- Oceanic and Atmospheric Administration (NOAA) able to apply value-based approaches to this question Fisheries web site (www.nmfs.noaa.gov). The US federal relating to group equity. Third, I examined criteria fisheries management system was described using a including the existence of positive feedback mechanisms combination of legal, regulatory, and descriptive docu- that would maintain ‘stable regimes,’ and the existence mentation including the MSA [49, 16 USC1852] , of repeated shifts to ‘stable regimes.’ Such positive its associated US regulations (50 CFR 600.215), feedbacks are a central criterion for determining the other interpretive descriptions [26,44] and direct experi- presence of sub-optimal stable states [54]. ences with the Regional Fishery Management Council process. The NMFS categorizes the appointed voting members 3. Results of the eight Regional Fishery Management Councils in the US into three ‘interest’ groups: (1) commercial 3.1. US fisheries goals fishing, (2) recreational fishing, and (3) ‘other.’ The ‘other’ category includes members with expertise in The NMFS is the agency responsible for managing ‘‘biological, economic, or social sciences; environmental the fisheries under US jurisdiction. The NMFS is an or ecological matters; consumer affairs; and associated agency of NOAA, which is an administration within the fields’’ as well as one tribal member [31–40]. US Department of Commerce (DOC). The Secretary of Two types of analysis of variance (ANOVA) provided the DOCis appointed by the President of the United more rigorous comparison of the representation of these States of America. The mission of NMFS is expressed as three ‘interest’ categories on the eight Regional Fishery the three goals of the NOAA Fisheries Strategic Plan Management Councils. Two-factor ANOVA (with (www.nmfs.noaa.gov): (1) rebuild and maintain sustain- repeated measures on one factor) was performed using able fisheries, (2) promote the recovery of protected StatView version 5 [50] to test the (null) hypothesis that species, and (3) protect and maintain the health of each of the three interest categories (factor 1) were coastal marine habitats. equally represented during the 12 years (factor 2) for The mission of the DOCis to ‘‘ y[improve] living which apportionment of interests has been reported standards for all Americans by working in partnership (1990–2001). One-factor ANOVA was performed using with business, universities, communities and workers to WINKS version 4.62 [51] to test the (null) hypothesis (1) build for the future and promote US competitiveness that the three interest categories were equally repre- in the global marketplace by strengthening and safe- sented in the year 2001. Student-Newman-Keuls multi- guarding the Nation’s economic infrastructure, (2) keep ple comparison tests were preformed in both cases using America competitive with cutting-edge science and SuperANOVA [52] and WINKS [51] respectively. The technology and an unrivaled information base, and (3) two-factor repeated measures ANOVA was preformed provide effective management and stewardship of the on raw data because homogeneity of variances was nation’s resources and assets to ensure sustainable indicated by an Fmax ratio (largest to smallest variance) economic opportunities.’’ of 1.9. The one-factor ANOVA (on 2001 data only) was The goals of the National Fishery Management performed after homogeneity of variances was achieved Program in the US, as listed in the MSA Section using log (x+0.1) transformations resulting in an Fmax 2(a)(6), are to (1) prevent overfishing, (2) rebuild ratio (largest to smallest variance) of 4.3, which was overfished stocks, (3) ensure conservation, (4) facilitate within the critical Fmax value of 6.94 (df=3,7; a ¼ 0:05). long-term protection of essential fish habitats; and T.A. Okey / Marine Policy 27 (2003) 193–206 197

(5) realize the full potential of the Nation’s ﬁshery New England groundﬁsh declined by 65% from 1977 resources [49]. to 1987.’’

3.4. The US participatory model 3.2. Directions for apportionment of interests on councils The marine fisheries under federal jurisdiction of the The MSA [49, 16 USC1852] mandated the following USA (generally those occurring between 3 and 200 directions for apportioning interests on Regional Fish- nautical miles offshore) are managed by Regional ery Management Councils: Fishery Management Councils consisting of voting and non-voting members including the regional director * Each council shall reflect the expertise and interest of of the National Marine Fisheries Service, representa- the several constituent States in the ocean area over tives of state fisheries agencies, representatives of which such Council is granted authority (MSA commercial and recreational fishing interests, and others Section 302(a)(2)). with expertise in ‘‘biological, economic, or social * The [appointed members of each council] must be sciences; environmental or ecological matters; consumer individuals who, by reason of their occupational or affairs; and associated fields’’ [40]. The Regional Fishery other experience, scientific expertise, or training, are Management Council process was designed as part of a knowledgeable regarding the conservation and man- National Fishery Management Program ‘‘to exercise agement, or the commercial or recreational harvest, sound judgment in the stewardship of fishery resources of the fishery resources of the geographical area [by enabling] the States, the fishing industry, consumer concerned (MSA Section 302(b)(2)(A)). and environmental organizations, and other interested * The Secretary, in making appointments under this persons to participate in, and advise on, the establish- section, shall, to the extent practicable, ensure a fair ment and administration of [fishery management] plans’’ and balanced apportionment, on a rotating or other [49]. To achieve this theoretically well-informed basis, of the active participants (or their representa- judgment, the MSA requires a ‘‘fair and balanced tives) in the commercial and recreational fisheries apportionment’’ of recreational and commercial fish- under the jurisdiction of the Council ((MSA Section eries interests on the councils, but no guidance or 302(b)(2)(B)). standards are provided to apportion or ensure the * The secretary shall appoint the members of each representation of ‘other’ interests or expertise on the council from a list of individuals submitted by the councils [40,49]. Despite the lack of a mechanism to Governor of each applicable constituent State (MSA ensure broader inclusion, McCay and Creed [26] Section 302(a)(2)(C)). interpreted the Magnuson–Stevens legislative guidelines * Each affected individual [(Council member)] must as encouraging ‘‘local level participation and represen- disclose any financial interesty[in any fishery activity tative democracy.’’ in the council jurisdiction] (MSA Section 302(j)(2)). The Secretary of the DOCselects the (appointed) * [These council members] shall not vote on a Council voting council members from a list of nominees decision that would have a significant and predictable submitted by the Governor of each State in the region effect on such financial interest (MSA Section (aside from agency representatives). If the list includes 302(j)(7)(A)). only commercial or recreational fishing interests, the secretary must choose Council members from that pool. 3.3. Status of US fisheries Fig. 1 shows the various interest groups, agencies, and individuals that influence the composition and decisions In 1999, 46% of the 158 federally managed ‘fish’ of the Regional Fishery Management Councils. These stocks in US waters (for which the status is ‘known’) eight regional councils make virtually all decisions were estimated to have stock levels below those that involving the management of US federal fisheries. would produce ‘Long Term Potential Yield’ (LTPY), and 36% were estimated to be over-utilized [55]. LYPY 3.5. Actual representation of interests on regional is the ‘‘maximum long-term average catch that can be councils achievedy’’ and ‘over-utilized’ means the existing fishing effort is too high to achieve LTPY. Of the Commercial fishing interests were the most numerous stocks for which the status was known in 2000, 38% of the three categories comprising the appointed voting were in an overfished condition (‘‘the stock size was membership on the regional councils for every year below a prescribed threshold’’), and 26% were being that apportionment of interests was reported (1990– overfished (‘‘the harvest rate was above a prescribed 2001). The ‘other’ category was consistently least threshold’’) [12]. In 1990, Anthony [56] pointed out represented (Fig. 2). The overall average number that ‘‘Under FMCmanagement, the abundance of of council members representing commercial fishing 198 T.A. Okey / Marine Policy 27 (2003) 193–206

Fishing industry lobbyists

U.S. President State governors

Federal legislature (U.S. Congress) State fisheries agencies Secretary of U.S. Dept. of Commerce Conservation groups

National Marine Fisheries Service Regional Fishery Management Councils

Council staff Advisory panels

Scientific advisory panel

Fig. 1. General (and simplified) diagram of the agencies and groups influencing the compositions (representation) and decisions made by Regional Fishery Management Councils in the USA. Arrows represent flows of influences on the councils’ compositions and decision-making.

Commercial Recreational 'other' 40 Commercial Recreational 5 30 'Other' 4 20

3 Frequency 10 2 0 1 0-10 10-20 20-30 30-40 40-50 50-60 60-70 70-80 80-90 Mean number of individuals 0 90-100 Percent representation on councils

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 Fig. 3. Frequency of occurrence of the percent representation of the Year three ‘interest’ categories within the population of appointed voting members on the Regional Fishery Management Councils for all years Fig. 2. Apportionment of interests groups on Regional Fishery between 1990 and 2001 (288 possible occurrences of percent Management Councils from 1990 to 2001 (data from [31,32–40]). representation out of 828 1-year units). Points represent mean numbers of individuals in each ‘interest’ category on each of the eight Councils. Error bars are standard error. interests on councils was 4.3, while those from recrea- interests on Regional Fishery Management Councils tional fishing and ‘other’ interests were 2.9 and 1.5, was 3.9, 3.4, and 1.6, respectively (also see Fig. 2) and respectively. Statistically significant differences were commercial interests were significantly more represented detected among the three interest categories when all on councils than ‘other’ interests over all years and in years were included in the analysis (two-factor repeated 2001 (Student-Newman-Keuls, a ¼ 0:05). The frequency measures ANOVA; p ¼ 0:008) and when the most recent distributions of the interest categories on the eight year (2001) was examined (one factor ANOVA; Regional Councils (Fig. 3) provide an additional view of p ¼ 0:038). This apportionment of interests remained interest representation on councils, in addition to constant during the 11 years of reporting (two-factor indicating normality in the data. repeated measures ANOVA; p ¼ 0:99). In 2001, the Exceptions to the overall trend are apparent in average number of commercial, recreational, and ‘other’ individual councils. Two members of the Caribbean T.A. Okey / Marine Policy 27 (2003) 193–206 199

Fishery Management Council represent the ‘other’ (Directors) is made by a Selection Committee of six category while the commercial and recreational fishing representatives with broad interests and expertise. The categories each have one representative. This notable adaptive aspect of the Australian partnership model exception emerged recently. The ‘South Atlantic’ Fish- included federal audits [57,58], which concluded that the ery Management Council (waters adjacent to the fishing industry had captured AFMA’s decision-making Atlantic coast of the southeastern US) has four process. This led to reforms such that a maximum of 2 members currently representing recreational interests, of 8 the board members (25%) could be actively three representing commercial, and one ‘other’ member. involved in the fishing industry, while 3 other members Recreational interests also currently dominate the Gulf should have expertise in fisheries science, marine of Mexico Council (7, 3, and 1 respectively). All three ecology, natural resource management, and business interest groups were equally represented on the Pacific management (the remaining 3 board members are the Fishery Management Council (waters off California, Chair, the Government Director, and the Managing Oregon, and Washington) from 1998 until 2000 because Director). The fishery management process still includes the mandated tribal representative on that council is crucial contributions and participation by the fishing categorized by the NMFS [40] as ‘other.’ However, the industry, and the participants agreed that the system ‘other’ group again fell below both commercial and is much improved from the time of ‘industry capture’ recreational groups on the Pacific Council in 2001. (see [23] for a broader discussion of this example). Although ‘commercial interests’ generally dominate Bathgate and Memon [59] proposed that four equally the appointed council seats, the interests within this represented interest groups should make New Zealand category are generally skewed towards the larger Fisheries management decisions: commercial fishing, corporate interests that support larger sized vessels, recreational fishing, aboriginal ‘iwi customary’ interests, whereas the small-scale vessel fleets that are the and environmental interests (also see [24]). This system traditional core of coastal communities (and more likely is currently under development. to have conservation interests) are often less represented, and many other sectors of fishing-dependent 4.2. The California example communities are poorly represented [45, p. 62]. In 1999, only one of the 71 appointed members of Regional The State of California recently promulgated two Fishery Management Councils represented the ‘conser- participatory and adaptive programs to manage and vation community’ [45, pp. 63–64]. protect the marine life under its jurisdiction: the The apportionment of interests on Regional Fishery California Marine Life Management Act [25,60] and Management Councils appears to persist at a sub- the California Marine Life Protection Act [61]. optimal stable state. First, stability (i.e., persistence) of The MLMA is designed ‘‘yto ensure the conserva- the unequal apportionment was established by the tion, sustainable use, and, where feasible, restoration of statistical analysis described above (also see Fig. 2). California’s marine living resources for the benefit of all Second, the sub-optimal nature of the system of the citizens of the state.’’ The paraphrased objectives of apportionment of interests is apparent because the this general policy are to (1) conserve entire ecosystems; overall status of US fisheries resources is poor despite (2) allow only sustainable uses; (3) recognize the objectives that seek to ensure healthy resources. Third, importance of non-consumptive uses; (4) recognize the the influence of the fishing industry throughout the importance of fisheries and aquaculture economies and system (Fig. 1) represents a positive feedback (mechan- cultures; (5) promote scientific research on marine ism) that would be expected to stabilize the system at ecosystems; (6) use the best available scientific informa- such a sub-optimal level of representation. tion to manage marine living resources; (7) involve all interested parties; (8) disseminate accurate information; and (9) coordinate with adjacent states and countries 4. Representation in other systems (CA Codes (fgc:7050)). The more specific objectives of California’s fisheries policy, also elucidated in the 4.1. The Australian and New Zealand models MLMA, are to (1) prevent overfishing; (2) facilitate long-term protection; (3) restore marine fish habitats; The Australian Fisheries Management Authority and (4) achieve sustainable use of marine fisheries. These (AFMA) uses an adaptive approach to fisheries manage- objectives were designed to achieve realization of broad ment and policy-making within its ‘partnership’ model values of California’s marine ecosystems including of co-management [23]. The organizational structure of ‘‘ylong-term economic, recreational, ecological, cultur- this partnership model is similar to that of US federal al, and social benefitsy’’ (CA Codes (fgc:7055)). The fisheries management in that the main decision making MLMA emphasizes collaboration with a broad range of body is a council (AFMA Board) with a staff and participants, experts, and other interested parties; advisory panels, but the selection of board members periodic expert peer review of the management process; 200 T.A. Okey / Marine Policy 27 (2003) 193–206 and an adaptive overall approach to ensure that the conflicts of interest persist within the overall decision- system becomes effective. The California Fish and making system. The Commission and the DFG receive Game Commission and Department of Fish and Game much of their operational funding from hunting and (DFG) are charged with developing an effective system fishing licenses. The Governor of California appoints up for participatory fisheries conservation and management to five Commission members, who are then approved by that features both Annual Fisheries Status Reports and the Senate. A high percentage of members are typically Fishery Management Plans. Approaches for public hunters or fishers, or both. Thus, it is reasonable to involvement, such as announcements, public meetings, expect, and part of California tradition, that hunting workshops, advisory committees, panels, and dispute and fishing interests have had considerably more resolution, are discussed along with basic public influence on these trustees than general public interests. involvement principles in the MLMA master plan [62]. Notwithstanding this history, the Commission has However, little explicit direction was given to DFG for stated that it is shifting its focus toward broader values development of that participatory system. Thus, [63]. It remains to be seen whether the Commission, or although the California legislature delegated more even the Joint Committee, will weaken protective decision-making power to the Commission, the basic measures developed in the MLPA Master Plan and structure of that decision making body has gone Marine Life Protection Program as the result of special unchanged (discussed below). (extractive) interest lobbies. This concern also applies to The MLPA established an adaptive and participatory the participatory fisheries conservation and manage- program to protect the marine life in its jurisdiction ment system required by the MLMA. using Marine Protected Areas (MPAs; limited extractive Ensuring broad involvement and representation of uses) and Marine Life Reserves (MLRs; no extractive interests during the development and operation of these uses). In this program, the DFG develops a Master Plan new programs will prove profoundly challenging, by convening a Master Plan Team that features especially if the ultimate decision making body remains expertise in marine life protection, underwater ecosys- dominated by fishing groups. Notwithstanding this tems, species’ habitat requirements and biology, and fundamental problem of ultimate representation, Cali- water quality. The composition of this team includes fornia has made substantial progress towards protection staff from the DFG and five to seven scientists (one with and management of living marine resources and economic and cultural expertise). The Master Plan for ecosystems. Whether or not the current decision making Marine Life Protection in California is prepared by the body in California can represent the interests of the Master Plan Team after consultation with federal and general public is an experiment in progress. state agencies and trustees, local community members, marine conservationists, marine scientists and other 4.3. The South African model experts, divers, participants in the various fisheries, and independent peer reviewers. The DFG will submit the The South African pelagic fishery is managed using a draft Master Plan to the California’s Fish and Game participatory approach in which fisheries decisions by Commission (‘the Commission’) in January of 2003 and the Minister of Environmental Affairs and Tourism are again in April of 2003 after a public review. The based on recommendations by the Sea Fisheries Commission is required to adopt a final Master Plan in Advisory Committee (SFAC), which is made up of December of 2003 with accompanying regulations, at nominated representatives of a range of fishery interests. which time the California Legislature’s Joint Committee The SFACis advised by the ChiefDirector of Sea on Fisheries and Aquaculture (‘the Joint Committee’) Fisheries and the Sea Fisheries Research Institute will review the program and may recommend changes (SFRI; i.e., scientists and managers), which is in turn (this schedule might be delayed for 12 months). advised by the Sea Fisheries Forum (industry) and the California has chosen to set up a ‘Marine Life SFRI Pelagic Working Group (scientists). The commer- Protection Master Plan Team’ made up entirely of cial fishing industry dominates the SFACand influences scientists and managers. This Master Plan Team will the process at all levels [64]. The fishery managers and shape the first explicit framework for marine life scientists developed and implemented a systematic and protection in California with the help of consulted well designed set of management procedures in an participants, stakeholders, and independent peer re- attempt to achieve sustainable management of the South viewers. This team was conceived with the intent of African pelagic fishery by attempting to address known optimizing the use of (presumably unbiased) scientific potential problems using explicit decision rules. These and expert knowledge as well as equalizing the management procedures failed, in general, because the disproportionate influences of extractive and special recommendations resulting from these decision rules interests. This structure will theoretically balance con- were usually overruled or adjusted by the SFAC [64]. stituent and stakeholder concerns with a design intended This failure was attributed mainly to the dominant to sustain marine life into the future. However, potential influence of extractive interests and the lack of T.A. Okey / Marine Policy 27 (2003) 193–206 201 representation of public interests, to conflicting objec- truly effective policies and unequivocally robust struc- tives, and to the absence of a long-term strategy. tures for protecting natural resources. Section 302 (b)(2)(B)(i) of the MSA requires a comparison of council representation with landings, 5. Discussion summarized by gear type and region. This required analysis automatically implies that allocation of repre- 5.1. Conflicts of interest and poor representation sentation among fishing industry sectors should be somewhat proportional to the relative landings among A cursory examination of the goals, objectives, and sectors. However, this ignores the question of represen- missions of the NMFS, the Department of Commerce tation by members of the general public, or other public (DOC), and the Magnuson–Stevens Act (MSA) reveals interests in public resources. A formula for determining fundamental conflicts of interests, particularly between representation of whole regional councils is not ex- the NMFS and the DOC. Goals of the latter (DOC) plicitly stated in the legislation, or probably anywhere. should reasonably be expected to eclipse those of the Rather, representation is the result of a political and subordinate agency (NMFS). Both agencies must economic process that contains strong incentives and uphold legal mandates as well as implement policies, feedbacks for maintaining the power of the well but as apparent in the MSA, the US congress effectively connected corporate interests and very weak incentives gives priority to DOCgoals by using weak language in for establishing a logically grounded and well-designed the directions for apportionment of representative system of trusteeship and representation of public interests on the Councils, thus effectively weakening interests for achieving the stated goals and objectives the stated goals of their own National Fishery Manage- US federal fisheries management. ment Program. Weber [16] also partially blames the The MSA states that Councils should reflect the failure of management on unresolved fundamental expertise and general interest of constituent states, and conflicts between conservation and exploitation goals that some appointed Council members should have within and among management agencies, though he scientific and conservation expertise. However, the most focuses on the relationship between the NMFS and the explicit mandate of the Secretary of Commerce regard- Councils. The existing legal structure was presumably an ing representation of interests on Councils is that attempt to optimize the economic competitiveness of the apportionments between the extractive user groups be United States by ensuring the domination of direct user fair and balanced. Representation of all other interests groups on the Councils. (e.g., scientific, conservation, non-extractive) is dis- Irrespective of the intent of US Congressional cussed as optional and is not explicitly mandated. This architects, it is well known that participatory democracy leads to numerical domination of commercial and is often ‘‘exploited for private rather than common recreational fishing interests on the Regional Fishery interests’’ [19], and ‘‘Actors in key institutions realize Management Councils because extractive group lobbies considerable gains from those institutions’’ (Powell and put considerable pressure on the governors of constitu- DiMaggio 1991 in [19]). Those that benefit directly from ent states to nominate individuals from these powerful the present US fishery management system can, and interest groups (Fig. 1). do, provide considerable incentives and feedbacks to This domination of the regulatory process by insure an institutional structure that benefits themselves extractive interests can ultimately lead to the degrada- (Fig. 1), often at the expense of the common good tion of resources and ecosystems despite rules for [65–67]. Thus congressional representatives, although financial disclosure and recusal (MSA Section 302(j)), intending to bolster economic ‘competitiveness,’ might and despite national standards for fishery conservation have unwittingly participated in re-enforcing a sub and management (MSA Section 301). Because contem- optimal (dysfunctional) institutional system. porary markets produce inherently short-term economic In retrospect, this strategy of structurally weakened strategies, it is natural that domination of regulatory implementation of conservation goals probably pre- decision-making bodies by extractive interests would vented optimal achievement of commerce goals. It is produce management patterns that undermine well- clear that Ponticorvo’s [22] main concern with the intentioned (long-term) conservation strategies, espe- system is born out—that domination of the Councils by cially because ‘‘Council members are now allowed to fishing interests is inconsistent with the maximization of participate in decisions in which they have financial the general welfare because it leads naturally to a interests upon mere disclosure of that interest’’ [20]. management policy that protects vested capital interests Explicitly mandating a mechanism for ensuring by reducing natural capital and employed labor. The representation of other interests (e.g., scientific experts, policy failure highlighted in the present paper under- general public, and conservation groups) could end the scores the principle that a nation cannot sustain ‘capture’ of federal fisheries management decision- economic competitiveness without giving priority to making by industry in the US. The problem stems from 202 T.A. Okey / Marine Policy 27 (2003) 193–206 the nonsensical assumption that balance and fairness ‘‘Ludwig’s Ratchet’’ mechanism that was used to between commercial and recreational fishing sectors will explain the collapse of New England Groundfish [15,71]. automatically result in balanced and fair outcomes for the general public (Section 302(a)(2)(B) of the MSA). 5.2. Sub-optimal system state The National Marine Fisheries Service appears to recognize this problem when they suggest that, ‘‘An Evidence that the Regional Fishery Management equally important consideration, however, is the stew- Councils in the United States operate at sub-optimal ardship responsibilities of RFMCs and the appointment system states include (1) the statistical stability and of individuals who can work collectively with members persistence of the characteristically unequal representa- to achieve the conservation standardsySuccessful tion of interests during the 12 years of reporting by the nominees, therefore, are those who not only are NMFS, (2) the poor performance of US fisheries qualified in accordance with the provisions located at management relative to agency and programmatic 50 CFR 600.215, but [who] will also best contribute to objectives (based on the current status of stocks), and the stewardship of marine fishery resources.’’ [40]. (3) the positive feedbacks of industry lobbying interests Unfortunately, this nice consideration is not mandated, and perverse incentives in management institutions and is therefore not a required consideration when the (regarding the general welfare) that would keep repre- membership of regional councils is decided. The NMFS sentation stabilized at the sub-optimal state. Further- [40] points to the problem when they state, ‘‘ythe more, apportionment of interests was essentially the Secretary’s appointments are constrained by the nomi- same at the outset of the MSA experiment as it was nations submitted by RFMCgovernors.’’ during the period 1990–2001 [22], indicating longer-term It appears that NOAA Fisheries has acted in good stability. faith given their legislated constraints to enable the type of balanced apportionment that would achieve needed 5.3. The next experiment conservation and sustainability goals. The conspicuous problem is the lack of language in the MSA (Section The statistical analysis preformed in the present 302(a)(2)(B)) that would establish a broader fairness and contribution pre-supposes that all three interest cate- equity in terms of public interest. As suggested by gories ‘ought to’ be equivalent. This pre-supposition, Cloutier [20], a provision aimed at requiring governors however, is intended only as an analytical convenience. to nominate representatives of broader public interests Commercial fishing, recreational fishing, and ‘other’ are (scientific, conservation, consumer) should accompany default categories used by the NMFS. It would be more provisions requiring the Secretary of Commerce to useful to dis-aggregate the ‘other’ category so that appoint such interests. representation of other interests can be accounted for, Healey and Hennessey [48] attributed the failure of reported, and characterized. Dis-aggregation of the modern fisheries management to increasing complexity, ‘other’ category would, however, only accentuate the and the issue has been further explored by Cochrane [68] present demonstration that commercial fishing interests and discussed by the NMFS [69]. Increasing complexity are significantly more represented than ‘other’ interests, can seriously hamper compliance, enforcement, and the and that corporate interests strongly dominate the logistics of management, but not necessarily council decision making process. De-segregation of the ‘com- decision-making. The human brain is exceedingly well mercial’ category would also help to evaluate the designed to enable intelligent decision-making in com- supposition used here. plex situations [70]. Thus, the problem with complexity The status of US fisheries can be considered the in fisheries is not complexity in itself, but rather the way legitimate measurement endpoint of a grand manage- in which Council members with a particular set of ment experiment [22,72], if it is reasonable to assume interests integrate complex information and make that status of stocks is linked to management structure. decisions based on their own sensibilities. A more The sole treatment of this experiment has been a fishery balanced representation of interests on the Councils management system wherein commercial fishing inter- (e.g., more general public members and more scientists) ests dominate decision-making. The status of US fish- might well solve the wicked problems [sensu 29] related eries indicates that, in general, the treatment failed to to the increasing complexity of regulations. This might achieve conservation, economic, or social objectives also help shift Council deliberations away from sector (also see [56]). Fullerton [72] suggested that the ‘‘noble allocation issues, which take up the bulk of time and experiment’’ of the Magnuson Fishery Conservation effort by the Councils, and which can be partly and Management Act is not bound to fail, but rather it accomplished through industry cooperatives. The pre- needs ‘‘time to age and for operational problems to be sent thesis of attributing the failure of modern fisheries smoothed out.’’ He was representing the US federal view management to the domination of commercial fishing when he encouraged extensive abdication of federal interests on the Councils fits much better with the trusteeship of fishery resources to the fishing industry T.A. Okey / Marine Policy 27 (2003) 193–206 203 while extolling the hopeful virtues of industry ‘self broader stakeholder participation to balance interests regulation.’ He appears to have been too hopeful. [24]. While participation of fishing sectors in management The alternative experiment (alternate treatment) in decision-making is a crucial element for success (espe- the US fishery management system could include cially if it includes all fishing sectors), I suggest that the domination the present Council system by broader present system is bound to fail unless the immediate interests (as in the Australian example); domination by interests of fishing sectors are more effectively checked recreational fishing interests; or equal representation and balanced with the broader interests of the general among interests (as in the New Zealand example). An public (i.e., conservation interests), irrespective of even better design for such an experiment in the US whether the management system is simple or complex. would be to further dis-aggregate the ‘interest’ cate- In retrospect, Fullerton’s noble experiment appears to gories and develop alternative hypotheses about the have been informative, but ill advised with regards to effects of representation by various combinations of fish stocks and marine ecosystems. categories. Testing such hypotheses would be informa- In spite of the poor performance of US fisheries after tive if the treatments were sufficiently different from two decades of an industry dominated system, Town- each other. send [73] advocated for ‘corporate governance’—a potentially even more extreme scheme of industry 5.4. Deliberate democratic designs domination of public resource decisions. Few still deny that fisheries management in the US needs re-inventing, Jentoft [75] urges us to recognize that human systems but I suggest such schemes are (1) fundamentally must be deliberately [and explicitly] designed to function unsustainable because of the perpetually limited scope as intended, and that co-management, by itself, will not of modern economics (e.g., inability to fully consider, automatically lead to success. Pontecorvo [22] joined the evaluate, or protect the value of natural, human, and likes of Adam Smith in suggesting ‘‘No regional or local cultural capital); (2) broadly unpalatable due to their body, no matter how constructed or how constituted, is exclusionary nature; and (3) not logical because they likely to move effectively and efficiently to enhance the begin with the assumption of corporate or user owner- general [national] welfare.’’ One could conclude from ship of public resources (granted that some ‘property this precept that Regional Fishery Management Coun- rights’ schemes are workable). Furthermore, the notion cils should be more broadly comprised with respects to that ‘‘superior access to debt financing’’ is a benefit of both interests and geography (Pontecorvo [22] pointed corporate governance structures portends failure be- out that the public in non-coastal states go entirely un- cause there is no obvious reason that investors would represented in the Council process). The assertion of choose monetary debt over natural capital debt (over- McCay and Creed [26] that the Magnuson–Stevens act exploited resources). It is not reasonable to assume that encourages representative democracy appears incorrect corporate governance structures would place a realistic in light of the present examination of the underlying value on the future (or on any resource that is not (legislative, political, and structural) causes of the easy to apply a monetary value to) due to the culturally skewed representation of interests on Regional Fishery engrained economic practice of discounting the Management Councils in the United States. future [46]. Global security hinges on the stewardship, responsible Such extreme corporate governance schemes inher- use, and equitable distribution of natural resources e.g., ently leave the public out of the democratic process, and [76,77]. Indeed, all conflicts are ultimately natural are thus absurd in the public context of fisheries resource conflicts, and history has shown that nations management. Indeed, disastrous results of the corporate crumble when natural resources are depleted e.g., [78]. governance recipe should be expected in cases where public subsidies artificially bolster fisheries [17]. Lane and Stephenson [74] argued that troubled fisheries in 6. Conclusions Canada could be saved by increasing the participation and responsibility of the fishing industry, which they say The dominant representation of special interests and has been ‘‘generally excluded from management.’’ Their self-interests on Regional Fishery Management Coun- suggestions might well improve Canadian fisheries cils (i.e., the composition and organizational structure of management, this author does not know, but US decision-making bodies) is likely to be a fundamental experiences are not consistent with that conclusion cause of the failure of modern fisheries management and [56,71], and the results presented here indicate that the subsequent degradation of common property participation of the fishing industry that is not balanced resources in marine ecosystems. with broader representation is likely to fail in the long I argue that the simplest solution to the present run. Accordingly, it appears that newly implemented dilemma is to mandate the incorporation of broader industry self-regulation in New Zealand will require (scientific, environmental, consumer) interests on 204 T.A. Okey / Marine Policy 27 (2003) 193–206

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