The Failure of Government Regulation of Salmon Harvest

Ocean harvest was unregulated and unlimited from around 1905, when ocean-going boats began going after the salmon, until November 1, 1949, when the Pacific Marine Fisheries Commission closed the season from November 1st to March 14th.52 Today the Pacific Fishery Management Council, established by Congress in 1976 through the Magnuson Act,53 regulates the ocean salmon harvest outside the three-mile limit. Inside that limit, the states continue to regulate it.

The United States and Canada Pacific Salmon Treaty was ratified in 1985, and was supposed to limit ocean overfishing on West Coast salmon stocks on an international scale. It did produce some immediate limits in chinook harvests after 1985, which may have been responsible for better returns in the late 1980s. But instead of allowing those increased runs to return to spawning grounds and replenish salmon stocks, they were very heavily harvested in near-shore waters and rivers under state jurisdiction.

Federal and state regulation of harvest has not done much good, since harvest restrictions are generally too little, too late. Ocean harvest regulations have also produced gross waste. Government licenses, permits and quotas mean that tons of the "wrong" fish are caught, killed, and simply tossed overboard. Fishermen allowed to catch only one boatful of fish go out and cast their nets repeatedly, throwing away the less valuable species or smaller fish until the boat is full of the fish that will bring the most money. This is akin to the late 1800s practice of shooting buffalo, cutting their valuable tongues off, and letting the rest of the corpse rot. Now we throw the whole corpses away, salvaging nothing.

The harvest managers know what is going on. In the case of salmon, their regulations expressly promote it. For example, as the Pacific Fishery Management Council recently acknowledged, "federal regulations require that salmon caught in the groundfish fishery must be immediately discarded. Fishers are not required to record the number of salmon taken, and there is no comprehensive observer program to monitor bycatch in the shorebased fisheries."54 This leaves the total damage to salmon populations largely a matter of guesswork, but newspaper accounts suggest that in 1993, for example, more salmon were thrown away off the coasts of Oregon, Washington and California than could be legally caught.55 Scientists warn that bycatch impact is “presently not being addressed by assessment programs.56

Huge trawl fisheries operate in the Bering Sea, Gulf of Alaska, and off Oregon, Washington and California and catch largely unknown numbers of salmon, the vast majority of which are chinook salmon.57 One analysis of the 1995 whiting fishery showed that just 25 tows (out of 2,222 total), captured 60% of the 14,557 chinook bycatch.58 For all we know, a single sweep of the giant nets can wipe out an entire year class of salmon from an Idaho stream.

When Bern Shanks, director of the Washington Department of Fish and Wildlife, finally put observers on commercial purse seiners in 1997, he characterized the chinook bycatch as "unconscionable" and "obscene". The answer, he said, was to "require the (non-Indian) commercials to release any chinook caught, even though we know there is an estimated 30 percent mortality. We wanted to remove the profit incentive from taking the chinook."59

In many of the troll fisheries monitored by the Pacific Salmon Commission, size limits require fishermen to throw back smaller salmon. This process is called "shaking" and can literally involve shaking the salmon off the hook. Obviously, this is not good for the salmon, and there are sharp disputes as to how many of the salmon survive. The fishermen report the total number of fish "caught"; they also report the total number "landed". The difference is those thrown back, dead or alive.

In 1979, for example, the Pacific Fishery Management Council reported 302,000 "adult equivalent mortalities" in fish caught, but not landed.60 The phrase "adult equivalent" means that the real number of dead fish was probably higher, perhaps 500,000, and that the number of fish shaken off hooks could be in the range of 1.5 million or even higher. These losses continued at very high levels until harvest quota reductions were finally implemented in 1995.61

Before the United States asserted jurisdiction over fisheries out to 200 miles (the "Exclusive Economic Zone"), foreign fishermen fished under regulations that required observers to monitor bycatch. When the foreign fishermen were ejected in favor of domestic ones, the requirement of observers was dropped. Regulators apparently assumed that foreign fishermen might not tell the truth about bycatch, but domestic fishermen would scrupulously report it.

As of 1995, there was no monitoring whatsoever in the bottom trawl, shrimp trawl, or long-line fisheries.62 The National Marine Fisheries Service does have a salmon monitoring program in the North Pacific groundfish fisheries, but only for boats sixty or more feet long. Boats less than 125 feet long need only have 30% coverage in the program.63 The program has identified enough harvest of endangered salmon to trigger consultations under the Endangered Species Act, but the proportion of salmon caught is small, so the fisheries are not restricted.

Generally speaking, monitoring programs are not audited in any useful way. My colleague and former boss, Jeff Ring, was once flying back from Seattle with a lawyer for the fishermen, who bragged that even where there were observers on the boats, it was in many cases a meaningless exercise. The observers were often retired or disabled fishermen, frequently friends of the boat owners. If they bothered to emerge from their cabins (often, a bottle of scotch is provided to them when they arrived), they would simply peer down into the hold and make an extremely casual judgment as to what was going on.

And no one really knows what is going on in the high seas, where endangered Snake River spring chinook salmon may wander into the illegal drift nets of Taiwanese, Japanese and Korean fishermen. The National Marine Fisheries Service takes the position that this problem was solved by an international moratorium on high seas drift netting. Alaskan fishermen, however, say that foreign boats still put out drift nets on the high seas; when spotted by observers, they simply cut the nets loose, which then continue to kill fish for years. One scientist has suggested that as many as 5.5 million salmon were harvested illegally on the high seas in a recent year.64 Visitors to Taiwanese markets have seen American steelhead in the markets.65

There is a huge, legal drift net fishery for flying squid conducted in the central north Pacific, albeit generally south of the main high seas concentrations of salmonids.66 Nevertheless, the nets are the same size used for salmon fisheries, and, according to Dr. William McNeil, put Columbia Basin salmon “at risk”.67 No one has even attempted to assess the incidental take of salmon in the squid fishery.

Much more attention is paid to high seas whaling, also the subject of an international moratorium. When travelers reported finding whale meat in Asian markets, researchers used DNA sequencing techniques to confirm the illegal harvest.68 If anyone bothered to look, we could probably find endangered American salmon for sale in Asian markets too.

The bottom line is that no one knows how many Columbia River salmon are caught in the ocean, and no one seems to care. The Atlantic Salmon Federation took action to protect Atlantic salmon by paying Faroe Islands fishermen $685,600 per year in compensation not to net the salmon in the North Atlantic. Three years later, twice as many salmon returned to native rivers in Iceland and elsewhere in Europe.69 There may well be one or more classes of ocean harvesters who could be paid off to double salmon runs in the Columbia River.

Surprisingly, government regulation of land-based Columbia River fisheries is only a little more effective that regulation of ocean fisheries. The river fisheries are now managed under a federal court decree supervised by United States District Court Judge Malcolm Marsh in the case of United States v. Oregon. As the Idaho Department of Fish and Game recently explained,

“Basic harvest management decisions under the United States v. Oregon process are made in secret by the Policy Committee. The public is excluded from Policy Committee meetings, and the parties are prohibited from revealing what is discussed. To make matters worse, mainstem harvest managers have made little or no attempt to explain these decisions to the public.”70

The resulting process has continued to sanction heavy harvests on endangered fish. So focused are the parties on allocating the fish among themselves that they have failed to produce any cumulative accounting of the harvest impacts from the lower river commercial and recreational fisheries, tribal commercial and “ceremonial and subsistence” fisheries, and tributary recreational fisheries.71 In other words, the fishery managers haven’t even bothered to assess the impacts of the harvests they authorize.

Nor, more understandably, do the fishery managers know the impact of illegal harvest. Occasional arrests of dealers in illegal salmon have shown uncounted losses from the river of tens of thousands of salmon.72 From 1992-96, over 500 illegal gillnets were removed from Zone 6 of the Columbia River, which is reserved for tribal harvest.73 No one has attempted to adjust harvest statistics to account for such losses; instead, they are blamed on the dams.

The few studies that focus on the subject are subject to harsh attack. In 1997, the tribes attacked as "racist" BPA's efforts to evaluate a law enforcement assistance program it funded after the evaluators found that the program appeared to be making a dent in illegal harvest by the tribes. When University of Idaho biologists tried to radio-tag fall chinook to find out why they were disappearing, "the program was stopped in its tracks after 50 fish were tagged" by Robert Lohn, head of BPA's fish and wildlife division, because of objections by state and tribal fishery agencies.74

When the government is in charge of a business, only that business has the incentive to focus on the details of government decisionmaking. In a phenomenon that is well-recognized by policy analysts, businesses often "capture" the agency. The agency officials begin to think like the business owners. You would expect the government to try and figure out how many salmon from the Columbia River Basin are actually being killed in salmon harvests; you wouldn’t expect fishermen to do it. That no one has figured it out speaks volumes.

In a passage that was edited out of its Final Recommendations to the National Marine Fisheries Service, the Snake River Salmon Recovery Team commented:

“Persons unfamiliar with historic Northwest salmon fisheries might wonder why fisheries management agencies have not actively tried to develop more efficient gear for the [conservation] purposes named here. Avoiding confrontation with user groups, which the agencies have consistently viewed as their clientele as opposed to the general public, is one of the reasons.”75

After decades of government intervention, the ranks of those "user groups" have been swelled by subsidies. There are so many boats that some fishing seasons in Alaska must be limited to just hours. The shorter the season, the greater the drive to catch anything and everything during the limited time allowed, and the greater the business risk for salmon harvesters.

The current harvest management regime comes under nearly universal attack by fisheries scholars. In another passage stricken from its Final Recommendations to NMFS, the Snake River Salmon Recovery Team noted that

“A Recovery Plan for Snake River salmon, intended also to prevent further ESA listings, will impose large costs on many people and activities. The cost of maintaining irrational fisheries should be evaluated in this context. We use the term irrational to highlight the biological, economical, and managerial inefficiency of the harvesting and management methods now applied to Columbia River salmon. The overall cost of harvest is far greater than it could be. Excess fishery capacity and resulting intense fishing pressure makes it impossible to gather, process, and apply real time information to manage the fisheries effectively. The inability to adjust mixed stock fisheries results in unbalanced harvesting and makes hatchery production successes an additional threat to natural stocks.”

Professor Ray Hilborn of the University of Washington is more succinct: "The commercial fisheries on chinook make little economic sense".76

The Recovery Team believed that terminal area fishing and selective fishing offer the best way out of the dilemma posed by non-selective mortality inflicted by traditional gear and harvest patterns.77 This is not a new thought. In 1976, a representative of the Idaho Department of Fish and Game told his colleagues in the American Fisheries Society:

“As a commercial enterprise, it seems less than intelligent to chase fish all around the ocean when they are ultimately coming back to a home river by themselves and at a greater weight. . . it’s rather foolish to chase these fish around the river when they’re going to enter fish ladders at some point in their migrations. The mainstem Columbia River fisheries, both sport and commercial, are seldom focused in terms of selective harvest. Tributary or terminal fisheries would be much more sensible.”78

Only a few in the media perceive the irrationality of salmon harvest. Ross Anderson of The Seattle Times once observed that "[s]almon fishing is wonderfully picturesque and romantic, but it never made much sense to employ thousands of people and burn huge quantities of fuel to chase homeward-migrating fish on the open sea."79

The economic irrationality of the Northwest salmon fisheries is a reflection of a global problem. Carl Safina, who directs the National Audubon Society's Living Oceans Program, says that

"to catch $70-billion worth of fish, the fishing industry recently incurred costs totalling $124 billion annually. Subsidies fill much of the $54 billion in deficits. These artificial supports include fuel-tax exemptions, price controls, low-interest loans and outright grants for gear or infrastructure. Such massive subsidies arise from the efforts of many governments to preserve employment despite the destruction of so many fisheries."80

Many observers, including Mr. Safina, speculate that all those fishermen are not really losing all that money year after year. Rather, they have powerful incentives to underreport harvest, with a huge collective impact on total catches.

The irony of all this regulation is that the push toward capital-intensive techniques for catching fish limits employment. Live catch methods are probably more labor intensive. Ocean harvest requires heavier gear, limiting self-employment opportunities. When fish are caught with floating factories out in the Pacific, only a few will be able to own those factories. When they are caught with small boats in rivers and tributaries, many can find the means to buy these boats without subsidies.

Nations like Iceland and Spain have even concluded that commercial harvest of salmon makes no sense, because the finite supply of salmon will deliver the most economic benefits when caught by recreational fishermen.81 Oscar Thomsen, President of the Oregon Division of the Izaak Walton League of America, has fought gillnetting in the Lower Columbia River, pointing out that

“The Columbia spring chinook is the most biteable fishery, and provides more recreation to the citizens of Oregon than any other segment of the salmon fishery. The close location of this fishery to the major population centers provides easy access for the fishing public. Recreation is vital to the area, and provides heavy economic income to moorages, motels, hotels, boat builders, motor sales, restaurants and numerous other businesses . . . The gillnet fishery is a wasteful fishery and should be stopped.”82

While gillnetters come in for almost as much attack as dam interests, there is reason to believe that some of the excesses of the gillnetters were themselves the product of mismanagement by fishery agencies. As Irene Martin has explained in a lucid and succinct history of the Columbia River gillnetters, the gillnetters created, through custom and practice, a process of limiting access to the fishing grounds. The system, known as “drift rights”, established specific territories on the Columbia River where fishermen could operate, limiting access to “members”. But the courts refused to recognize the system, declaring that the fishery agencies had the responsibility for regulation.83 Like any monopoly with a tendency to restrict output, the gillnetters might well have eventually protected the salmon resource—had they not lost all incentive to do so by bad regulation and the sense that the ocean harvesters were taking the fish anyway.

52 Historical Ocean Fishery Data for Washington, Oregon and California, at W-8 (PFMC Sept. 1993) .

53 16 U.S.C.  1801 et seq.

54 Council News, March 1996, at 5.

55 This showed up in the Oregonian in the first half of 1995.

56 ISG, Return to the River, at 365.

57 NRC, Upstream 222 (Prepub. ed.).

58 NMFS, "Fishing Conducted under the Pacific Coast Groundfish Fishery Management Plan for the California, Oregon, and Washington Groundfish Fishery", May 14, 1996, at 1, 5 (reinitiation of  7 consultation).

59 "Commercial fishermen take too many chinook, state says", The Oregonian, Oct. 29, 1997.

60 ISG, Return to the River 364 & Table 8.3 (Pre-pub. ed. 1996).

61 ISG, Return to the River 63.

62 BPA, “Interim Research, Monitoring, and Evaluation Program to Support the FCPRS Biological Opinion and Recovery Plan”, at 53 (Nov. 15, 1995 Draft).

63 Id.

64 See NRC, Upstream 226 (Prepub. ed.) (“With the absence of a drift-net fishery on the high seas, illegal harvest should be reduced greatly, but the issue merits monitoring.”).

65 This is based on a report by Seattle lawyer Eric Redman.

66 Letter, W. McNeil to J. Etchart, April 12, 1997, at 8.

67 See id.

68 See Harvard Magazine, January-February 1997, at 59 (reporting on the activities of Professor Stephen Palumbi).

69 T. Anderson & D. Leal, “The Rise of the Enviro-Capitalists”, Wall Street Journal, Aug. 26, 1997, at A16.

70 Letter, S. Huffaker (Chief, Bureau of Fisheries) to J. Blum (NMFS), Feb. 27, 1997, at 4.

71 Id. at 3.

72 NMFS, Biological Opinion on FCRPS Operations, Mar. 2, 1995, at 65.

73 Memo, D. Olsen & J. Pizzimenti to J. Brogoitti (NWPPC), Sept. 24, 1997, at 3.

74 B. Rudolph, "Fish Cops Worth Cost, But Salmon May Still Be Missing", NW Fishletter, Sept. 30, 1997.

75 Snake River Salmon Recovery Team, Draft Snake River Salmon Recovery Plan Recommendations, at IX-16 to IX-17 (October 1993).

76 R. Hilborn, "Some Reflections on Hatcheries or 'You Don't Have to be a Rocket Scientist to See Some of the Problems'," at 5 (April 3, 1992).

77 Snake River Salmon Recovery Team, Draft Snake River Salmon Recovery Plan Recommendations, at IX-16 to IX-17 (October 1993).

78 J. Greenley, “The View from the Headwaters in Idaho”, in E. Schwiebert (ed.), Columbia Basin Salmon and Steelhead 104, Spec. Pub. No. 10 (Am. Fish. Soc. 1977).

79 R. Anderson, "Settle the salmon wars or go back to square one", The Seattle Times, Sept. 29, 1996.

80 C. Safina, "The World's Imperiled Fish", Scientific American, Nov. 1995, at 50.

81 D. H. Mills, "Atlantic Salmon Management", in Developments in fisheries research in Scotland at 215(Farnham, Surrey, England Fishing News Books Ltd.).

82 From the 1992 Oregon Voter’s Pamphlet, Argument in Favor of Measure 8, excerpted in J. Cone & S. Ridlington, The Northwest Salmon Crisis 329.

83 I. Martin, Legacy and Testament: The Story of the Columbia River Gillnetters 102-104.

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