United States: Senate Committee Approves The Modern Fish Act

John R. Chapman III is an attorney based in Holland & Knight's Fort Lauderdale office

The Senate Committee on Commerce, Science and Transportation voted to approve the Modern Fish Act on Feb. 28, 2018. The Modern Fish Act has bi-partisan support but is opposed by commercial fishing interest and some non-governmental organizations. Passage of the act could spur litigation similar to that recently filed by NGOs regarding recent recreational angling regulatory decisions.

Saltwater fishing is one of the Nation's oldest pastimes. It's also big business. Recreational and commercial fishing generated $208 billion in annual sales and supported 1.6 million full and part time jobs across America, according to the National Oceanic and Atmospheric Association's (NOAA) 2015 estimates. Since 1976, the saltwater fishing community – both commercial and recreational – have been regulated by the Magnuson-Stevens Fishery Conservation and Management Act. Under the Magnuson-Stevens Act, annual catch limits are used to regulate the recreational harvest of saltwater fish. Last year, however, bi-partisan legislation known as the Modernizing Recreational Fisheries Management Act of 2017 (aka the Modern Fish Act) was introduced. The Modern Fish Act aims to reduce federal regulations over recreational saltwater anglers. For example, it would eliminate federally-set annual catch limits for fish stocks and complexes (groups of fish) that are not presently being overfished. Currently, NOAA tracks about 474 species of fish. In its 2016 report to Congress, NOAA listed 30 of those species as being overfished, leaving the remaining 444 as not presently being overfished. The Modern Fish Act would eliminate recreational annual catch limits for fish species that are not currently overfished.

It's not surprising that the Modern Fish Act has seen widespread support among players in the marine industry and recreational fishing groups. In fact, in December 2017, 135 marine-industry executives across the nation signed a letter to the U.S. House of Representatives supporting the Modern Fish Act. What is surprising, however, is that commercial fishing interests and environmental groups have banded together to oppose the Modern Fish Act. The commercial fishing industry and environmental groups have a long history of taking opposite sides when it comes to fishing and environmental regulations. But these groups, together with others (such as New Orleans chefs who argue the Modern Fish Act could reduce food-tourism in the French Quarter) have put their differences aside to oppose the Modern Fish Act. Proponents of the Modern Fish Act argue that the Magnuson-Stevens Act was never meant to apply to recreational fisherman, is outdated, and that recreational regulations are not based on accurate science. Opponents of the Modern Fish Act, however, claim that it will create a loophole for recreational fisherman and may lead to overfishing.

In a move toward adoption of the Modern Fish Act, the Senate Committee on Commerce, Science and Transportation voted in favor of adopting the act yesterday. The bill will now go to the full Senate for a vote. The odds of the Modern Fish Act becoming law are not known; however, the Trump administration has already taken steps favorable to recreational interests, and the President would likely approve the Modern Fish Act should it pass the House and Senate. Sings of the Trump administration's stance on recreational access to saltwater species came shortly after the inauguration. In June 2017, NOAA called for a three-day season for recreational fisherman to catch red snapper in the Gulf of Mexico. At the behest of recreational fisherman, the Trump administration intervened, and the Commerce Department and Gulf states agreed to extend the recreational season to 39 days. The Ocean Conservancy and Environmental Defense Fund sued multiple federal agencies over the decision to extend the recreational red snapper season. That case was recently held in abeyance pending the government's publication of the 2018 recreational red snapper season. The government and the NGOs agreed that the case could be continued, or dismissed, depending on how the government sets its 2018 recreational red snapper season. Passage of the Modern Fish Act could spur similar lawsuits.

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