As to the “new data” on the percentages of fishing mortality the National Marine Fisheries Service (NMFS) is now embracing, and the controversy this is engendering, I’d like to make a few personal observations. My credentials are these – I have been a commercial fisherman all of my adult life, and I am approaching my 55th birthday. I have been an elected public sector union official, and spent a year studying law at Touro College. I have also served on the executive boards of the now defunct Long Island Fisherman’s Association and LICFA, its successor commercial fishermen’s trade organization.
It’s long been known by all principals that the recreational sector has been landing as much and in some cases much more of certain targeted species of marine fish than their commercial counterparts. What is being lost in the mix is that the real self-servers are those who are portraying themselves to be the servants of the public good. The agencies, the research groups competing for the lucrative grant money and the so-called “not-for-profit” environmental groups are all making mega-hay by manufacturing crisis after crisis under a law that was originally enacted to protect and enhance the fishing business in America. Those who want some insight into what is really going on here should read Susan Playfair’s wonderfully mosaic expose’ on the subject, Vanishing Species: Saving the Fish and Sacrificing the Fishermen. Fishermen are actually dying every year due to the ridiculously harsh management measures that are being forced upon us.
The above mentioned groups comprise a system that has really no clue as to the real size of marine species biomass or potential and actual reproductive rates in virtually all cases, but they force us all to treat their meaningless numbers as being written in stone Gospel Truth – so much so that at times the only people who by law cannot be in possession of a sea bass (and various and sundry species of locally available finfish) are those who are licensed to catch and sell them. Often this situation comes at times when the particular species in question is literally jumping into the boats of recreational interests in previously unprecedented numbers. Commercial boats often remain tied to the dock at these times because in order to land the meager numbers of fish they are allowed to catch and sell they must wade through tons of the fish we are told there are not enough of for us to even sell a few pounds, while a skiff with a half-dozen sporties on board will often legally take home a couple of cartons of the same commercially banned fish. I once asked a fisheries official if I could order a sea bass in a restaurant during these “emergency closures”, since the law prohibits possession by a licensed foodfisherman of even one sea bass at these times. I didn’t get a straight answer.
The really big losers in this conundrum is the commercial fishermen and, by extension those they work for, the local consumer. I don’t mean this in only a financial way. We who harvest locally available seafood products for the by-in-large colloquial market have answered the call of the people of our region, which “demand” is reflected in the dockside price for the day’s catch. The law is clear that the governmental agencies have “in-trust” possession of the marine resources along our coastlines, managing these most often free swimming hordes in the interest of the rightful owners, i.e., the at-large public. However, beginning right after World War II and much more rapidly in the last two decades the property rights of those who have historically contracted with the public to provide them with their rightfully owned wild marine foodstuffs have been almost totally eradicated. It now appears, after the enactment of foodfish license statutes (for which a potential licensee often must document his historic property right to obtain such license), that the only people who have no statutory or Constitutional property right to possess fish, according to the modern judge-made-law in coastal regions, are those who are the only people who can legally catch them for commercial purposes. Time and again the courts are ruling that fishermen cannot recover for the loss of the wrongful taking of their ability to ply their trade. It’s as if a person signed a contract to work for a company for ten years and then got fired wrongfully after five, but was tossed out of court because she didn’t own the building she worked in or any of its contents.
The Constitutional property right that commercial fishermen have is a special right to utilize the marine resource for commercial purposes. The courts in the coastal regions are somehow confusing this kind of property right with the actual possession of the fish, which doesn’t occur until the fish are “skillfully caught and landed.” There is a federal court of appeals that has recently afforded commercial fishing interests this other special property right. There the property right to fish for commercial fishermen was likened to work rights of tenured college professors. Unfortunately for us marine interests, this happens to be the 7th Circuit in Indiana ….
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