189
Chapter 8:
Who Says That Fish
Filet Is Sustainable?
Advocacy Options and the Lessons
of Federal Fisher y Management
Keith W. R izza rdi
I. Participation: Working With Government in a Public Decision
Process ................................................................................................190
II. Litigation: Resisting the Government in the Federal Courts ................196
III. Certication: Replacing the Government in the Marketplace ..............202
Conclusion ...................................................................................................209
How much shing is too much? Is it susta inable to eat that sh let,
or are there not enough sh left in the sea? And, most importa ntly
for purposes of this chapter, who decides? Seeking answers to these
questions, environmental and animal welfare advocates can serve important
roles as social engineers who help to avoid the overexploitation of the oceans
and the tragedy of the commons. But with a complex system of public laws in
place, implemented by a capable governmental entity that serves a wide range
of sta keholders, advocates are just one voice in the great debates over how
humans interact with other species and ecosystems.
is chapter discusses three important tools that policy advocates use
in the management of federal sheries.1 e primary law governing shery
management in federal waters is the Magnuson-Stevens Fishery Conservation
1. Nearshore waters may be managed by state and local governmental entities, too. Many states have
agencies dedicated to the implementation of state laws related to shery management. See, e.g.,
Association of Fish & Wildlife Agencies, State Fish & Wildlife Agencies, available at http://www.
shwildlife.org/index.php?section=social-media (last visited May 3, 2015). In addition, the states
engage in regional coordination of their shery management eorts with each other through state
commissions. See, e.g., Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §5101;
Gulf States Marine Fisheries Commission, Programs, available at http://www.gsmfc.org/default.
php?p=programs.htm#:content@5:links@6 (last visited May 3, 2015), and P S M
F C C D (2010), available at http://www.psmfc.org/wp-content/
uploads/2012/02/Publications_PSMFC_Compact_2010_compact1.pdf.
190 What Can Animal Law Learn From Environmental Law?
and Mana gement Act.2 e law creates numerous opportunities for notice,
comment, and oral or written participation in public meetings, councils and
advisory committees, and the rulemaking process. Alternatively, some sh-
ery advocates choose to litigate the public laws in the courts, whereas others
create new private systems of shery management in t he marketplace. Each
eort has benets, but has economic and political consequences, too. us,
while the Magnuson-Stevens Act reects a federa l process governing sh in
the oceans, its implementation oers lessons and insights that readily apply
to other areas of animal law. Part I of this chapter explains the reg ulatory
framework for sheries management a nd how sta keholders participate in
the decisionmaking process to determine an appropriate level of sustainable
shing. But as Part II notes, some dissenters may second guess the govern-
ment’s decisions, choosing to litigate the outcome of the public process in the
courts. Part III further explains how private alternatives have emerged, with
nongovernmental entities creating their own market-driven programs and
standards to certify a shery as sustainable, or not. E ach of these options of
participation, litigation, and cert ication revea ls risk s, benets, and lessons
that animal advocates can learn from the shery management experience.
I. Participation: Working With Government in a Public
Decision Process
e U.S. sheries are often considered among the best managed in the
world, t hanks to the comprehensive framework of the Magnuson-Stevens
Act (MSA).3 In its ndings, the MSA rec ognizes that sheries are renewable
resources: “Fishery resources a re nite but renewable. If placed under sound
management before overshing ha s caused irreversible eects, the sheries
can be conserved and maintained so as to provide optimum yields on a con-
tinuing basis.”4
2. Magnuson Stevens Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331
(1976) (amended by the Sustainable Fisheries Act of 1996, Pub. L. No. 104-297, 110 Stat. 3559 and
further amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act, Pub. L. No. 109-479, 120 Stat. 3575 (2007) (codied at 16 U.S.C. §§1801-1891)).
3. e MSA has been praised by conservative congressmen and progressive charities alike. See, e.g., Press
Release, House Committee on Natural Resources, Chairman Hastings Discusses Magnuson-Stevens
Act Reauthorization at Fisheries Conference (May 7, 2013), available at http://naturalresources.
house.gov/news/documentsingle.aspx?DocumentID=332834 (“Because of this framework the United
States has arguably the best managed sheries in the world.”); Making Progress in Ending Oversh-
ing, P C T, May 22, 2014, http://www.pewtrusts.org/en/research-and-analysis/
fact-sheets/2014/05/22/making-progress-in-ending-overshing (“anks to the Magnuson-Stevens
Act, a cornerstone in one of the world’s best shery management systems, our nation’s ocean sh are
recovering from a history of overshing.”).
4. 16 U.S.C. §1801(a)(1).
