The Secretive Fishery Management Agency that Regulates Your Fish

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On an unseasonably warm evening in September 2011, in Danvers, Massachusetts, a fishery regulator and two biologists were taking comments from the public about the decline of an important forage fish called Atlantic menhaden, when something strange happened.

The regulator turned to a lobbyist for Omega Protein, the largest commercial harvester of menhaden, and asked him to answer some of the audience’s questions about the health of the menhaden stock.

The regulator, David Pierce, is the deputy director of the Massachusetts Division of Marine Fisheries. At the meeting, Pierce was flanked on either side by two state fishery biologists, whose job it is study the menhaden fish and to ascertain whether its population is healthy and sustainable. But the biologists didn’t speak. Pierce chose the council of a lobbyist, Andrew Minkiewicz, a partner at Kelley Drye & Warren.

“Drew is an expert on the menhaden fishery because you represent the last major processing plant on the East coast, right? That is why I’m giving Drew leeway to jump in here,” he said, by way of explanation.

Kelley Drye & Warren have earned $2.4 million from Omega Protein for their lobbying services since 2006, according to filings under the Lobbying Disclosure Act.

The latest estimates show that menhaden stock is at its lowest point on record, and that overfishing has occurred during the majority of the last half century.

When he’s not allowing corporate lobbyists to answer questions, David Pierce is a commissioner serving on the Atlantic States Marine Fisheries Commission (ASMFC), which regulates fisheries across thousands of miles of ocean, from the shoreline to three miles out to sea, from Maine to the bottom edge of Florida.

ASMFC decisions affect fisheries worth hundreds of millions of dollars, like lobster, as well as the multi-billion dollar recreational angling industry, whose cash cow is striped bass. And of course, menhaden, the little fish that both striped bass and lobster like to eat.

Despite the power of the agency, behavior like Pierce’s suggests that certain commissioners favor commercial fishing interests over recreational anglers, conservationists, or other members of the general public.

The fishy behavior doesn’t stop with Massachusetts.

According to documents I obtained through a Freedom of Information Act request, the location for a 2011 public hearing in Virginia was chosen by Omega Protein, the company that harvests nearly half a billion pounds of menhaden out of the Atlantic each year, to process the fish into meal and oil, largely for aquaculture markets in Asia and Europe.

Jack Travelstead, the director of the Virginia Marine Resources Commission, who is one of three Virginia commissioners on the ASMFC, emailed Omega Protein’s public affairs director to ask where the company would like Virginia’s public hearing to take place. Omega Protein chose a high school in Heathsville, a few short miles from their factory. The company also picked the date and time of the hearing.

Others who were presumably more concerned with the fact that menhaden stocks have plummeted 90 percent in 25 years, like recreational anglers, birdwatchers, whale watchers, conservationists, and coastal residents, were not given preferential treatment.

This favoritism can be more pronounced in those ASMFC commissioners who are not government employees.

One third of the Commissioners are legislators from fifteen Atlantic states, but elected officials serving on the Commission can appoint a proxy to represent them. That proxy is often tied to a stakeholder group. Another third of the Commissioners are appointed by governors, usually to represent fishing interests.

Stephen Train, a commissioner for the state of Maine, told me in 2011 that he spent $40,000 purchasing Atlantic menhaden as bait for his lobster business the year before. Train sits on the Menhaden Management Board, and has voted to delay regulations that would cut the menhaden harvest.

Because the ASMFC does not require its commissioners to disclose financial ties that might pose a conflict of interest, the underlying interests these Commissioners represent are often unclear. How those ties may affect the way they conduct official businesses as regulators is unknown.

Under the Magnuson Stevens Act, fishery regulators overseeing federal waters are required by law to disclose outside financial interests. Regulators’ disclosure forms, available on the eight federal fishery management council websites, have enabled relevant information to be made public.  For example, six members of the New England Fishery Management Council own or operate vessels that fish for cod, pollock, and other species regulated by the Council.

The Atlantic States Marine Fisheries Commission, which oversees state waters, does not require such rigorous disclosures.

Under the ASMFC charter, published in 1942, the Commission’s “code of conduct” includes a provision that bars commissioners from having “a direct or indirect financial interest that conflicts with the fair and impartial conduct of official duties.”

But the ASMFC’s Executive Committee has sole authority to determine whether these financial interests are incompatible with a commissioner’s responsibilities. If the Executive Committee identifies a breach, they “may direct the Chair to notify the appropriate appointing authority in the Commissioner’s home state.”

As a result, financial conflicts of interest – latent or not –are never made public. Recusing oneself from a vote on the basis of a conflict of interest is not standard. In practice, some commissioners vote on species they have a stake in.

This gives those interest groups a leg up in the management process.

Anyone who cares about the health of our oceans and the sustainability of our fish stocks, but doesn’t have the money or time to fly to quarterly ASMFC meetings, is at a further disadvantage: he or she can’t learn about discussions and votes in a timely or comprehensive manner.

Although ASMFC meetings are transcribed, the transcriptions are not made available until several months later. And when they become available, voting is rarely broken down by state, making it nearly impossible for members of the public to hold their state’s commissioners accountable for how they voted on a particular issue.

Unless one of the 45 Commissioners calls a “roll call” vote, a show of hands and a majority opinion rules. The meeting minutes read “Motion Passes” or “Motion Fails,” and nothing more.

This lack of transparency can be a challenge – even for ASMFC regulators. When we asked Commissioner A.C. Carpenter, who represents the Potomac River Fisheries Commission, for a record of how he has voted on Atlantic menhaden, he was unable to recall his position on even one single vote.

Although ASMFC meetings are where regulatory decisions are made, the nuts and bolts of fishery science and management occur during scientific committee meetings and ad hoc working groups – none of which are transcribed.

These committees are formed to address particular biological, social, or economic concerns relating to the fisheries, and are often attended by industry consultants and company-funded scientists. Because there is no public record of what was said at these meetings, the level of industry participation in the deliberations is unknown to the general public – except to those who can afford to attend the meetings. Transcriptions do not exist to review what decisions were made or how they came about.

“There have been no standard operating procedures put in place for those ad hoc and small committee meetings. Going through a transparent process on how these meetings will be recorded, and how information will be shared will be critical,” says Pam Lyons Gromen, executive director of the National Coalition for Marine Conservation. “What we have seen with menhaden is undue influence by the people who can afford to come to the table and make these meetings. It’s a real challenge. It’s much harder for the general public.”

The silver lining in all of this is that ASMFC is in the process of updating its guidelines on public participation in its technical committee process. ASMFC Acting Executive Director Bob Beale has said that these guidelines will be finalized in November 2012.

While these guidelines will not address financial conflicts of interest, they may create procedures that more clearly govern how the public can participate in technical and scientific proceedings.

As the ASMFC’s guidelines are revised this week, and debated in the coming months, give some thought to how open and accessible you want the fishery management process to be. If the new guidelines do not reflect an increased commitment to accountability, transparency, and independence, to borrow the words of the wise and dogged Charlie Hutchinson, “make sure [the ASMFC knows] they haven’t met their responsibility and that their shortfall becomes part of the public record.”