Wishing doesn't make it so
By Andrew E. Minkiewicz and Anne Hawkins
February 2014 will mark the 10th year since the New England Fishery Management Council published a notice of intent to develop its Essential Fish Habitat Omnibus Amendment. After 10 years of debate and analysis, the council is on the verge of finally sending the amendment out for public comment. In December, the council postponed voting on the draft habitat amendment for many stated reasons relating to an overall lack of preparedness, limited staff resources, and the need for further analysis. The truth is the reason that this process has taken 10 years is that there is simply no scientific basis that supports designating broad-scale closed areas off New England.
The Magnuson-Stevens Act allows actions for habitat management only within a "practicability" standard — that is, the biological benefit of an action must be weighed against the economic and social impacts. To date, there are no scientific studies showing that closed areas, in temperate areas like New England, provide benefits to fishery productivity or conservation that are the stated goals of this habitat action. To the contrary, a series of recent studies in New England, Alaska and Europe have shown that large areas closed to fishing effort not only do not lead to increases in productivity, but they can even provide severe unintended negative consequences by way of effort redistribution of the fishing fleet onto other fish stocks and fishing areas.
While there was clear value in having NMFS and council staff analyze whether protected areas would help recover troubled groundfish stocks in New England, the council cannot ignore the outcome of those analyses — that closures will not increase productivity. The continued effort to designate closed areas in the absence of scientific justification is an exercise in forcing an action simply because momentum has already been built, albeit on assumptions that are now known to be flawed. Environmental groups continue to push for increased closures by repeating positions that fly in the face of the science along with feel-good mantras such as those that conjure the magical nature of Cashes Ledge. Cashes Ledge is the only area that the data shows is deserving of special treatment because of its unique New England kelp forest. What these arguments lack is any data showing the ecological benefits of large closures in this type of temperate area, while ample data show the very real impacts such closures will have to the fleet and the economy. For its part, the Georges Bank Northern Edge closure not only thwarts fully effective scallop rotational management, it costs the fleet at least $20 million ex-vessel per year.
Fishermen in New England and around the country have repeatedly proven their willingness to protect critical areas and to take actions that increase productivity. The groundfish industry-initiated Whaleback area spawning closure in the Gulf of Maine and the rotational area management developed by the Atlantic scallop industry are just two examples of sensible and effective management. These are the types of initiatives that should be pursued in order to establish practicable habitat management — not rote processes based on perpetuated misunderstandings.
Indeed, the New England experience has shed light on a fundamental flaw in the way the Magnuson-Stevens Act is being interpreted with regard to habitat management. Vulnerable habitat structures that are critical to depleted species' life histories can and do exist. However, the Magnuson reauthorization needs to clarify that the process for designating essential fish habitat should focus on providing demonstrable protection to critical life stages. In the meantime, however, wishful thinking in the face of demonstrated science by longtime closure proponents does not amount to a cognizable benefit in any reasoned, rational practicability analysis.
Andrew E. Minkiewicz is a partner and Anne Hawkins is an associate in the Washington, D.C., office of Kelley, Drye & Warren LLP.
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