Fishermen are going to court in Portland, Maine, on Tuesday to protect their businesses and communities from an unconstitutional regulatory commission that is a menace to our iconic industry.
Overregulation has taken the joy out of fishing, and the prosperity too. That inevitably follows when powerful bureaucrats aren’t accountable to anyone, as is the case with the unconstitutional regional management councils that set policy for our fisheries.
America’s fishing fleet is steadily retracting. Fishing is a generational trade passed within families. Many fishermen I know are vectoring their sons and daughters away from the family business. There are many reasons for that, but overregulation is one of them. In my state of Maine, the New England Fishery Management Council sets federal rules binding fishermen. Council members are insulated from any political accountability – a serious constitutional defect – and the rules show it.
Take the council’s latest plan for our fishery, Framework Adjustment 65. I was a ground fisherman – that is, an offshore trawler – when I captained the F/V Teresa Marie IV. Haddock was a big part of my business in those days. The council’s plan slashes landings for haddock by 82 percent. I challenge any business to turn a profit with only 17 percent of last year’s inventory. I might try to make up that business by targeting another species, such as white hake. But white hake landings are cut by 13 percent under the new plan.
How am I supposed to make up for these quota reductions? Recent years have made that question especially urgent. Inflation drove costs up, and the delta between expenses and revenues keeps growing.
Worse has happened to my brother and sister shrimpers in Maine. The Gulf of Maine used to support a robust shrimp fishery. The management council placed a moratorium on shrimping in 2013 – and not without reason. Ocean temperatures ticked upward, which stressed the shrimp stocks. A recovery period was appropriate. But our shrimp fishery is not so fragile as to require a decade for revitalization. The desk-bound bureaucrats on the council disagree.
Over time, shrimpers reached the devastating conclusion that the council had no plans to lift the moratorium. Those able to retire did so. Others sold their gear and their boats to break into different fisheries – that caused some tension, in perfect candor. Meanwhile, I’m seeing shrimp everywhere, and industry is making a last-ditch effort to convince the council that the shrimp stocks have recovered.
My organization, the New England Fishermen’s Stewardship Association (NEFSA), filed a lawsuit challenging the management councils on constitutional grounds. A federal judge in Portland will hear arguments in our case on Tuesday.
NEFSA maintains that council members should be nominated by the president and confirmed by the Senate, given that they are chief policymakers for our fisheries. Alternatively, they should at least be appointed by a politically accountable officer like a cabinet secretary. But they are not. Nor can council members be removed, even by the president.
Strangely, the states get a major say in picking council members. Some members sit on the council by virtue of their state offices. Others are selected from lists prepared by governors. This convoluted system allows state officials to exercise federal power and gives states a role in appointments the Constitution does not allow.
As our brief explains, appointments aren’t just a matter of protocol or a legal nicety. The appointments process is a structural guarantor of our freedom. It ensures that bureaucrats are answerable to the people, insofar as they are answerable to an elected official. If council members aren’t answerable to the public, we can’t be surprised when their choices consistently disfavor the people.
Jerry Leeman is CEO of the New England Fishermen’s Stewardship Association.