[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EMPTY HOOKS: THE NATIONAL
OCEAN POLICY IS THE
LATEST THREAT TO ACCESS
FOR RECREATIONAL AND
COMMERCIAL FISHERMEN
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
OCEANS AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
Thursday, March 22, 2012
__________
Serial No. 112-103
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democratic Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC Betty Sutton, OH
Scott R. Tipton, CO Niki Tsongas, MA
Paul A. Gosar, AZ Pedro R. Pierluisi, PR
Raul R. Labrador, ID John Garamendi, CA
Kristi L. Noem, SD Colleen W. Hanabusa, HI
Steve Southerland II, FL Paul Tonko, NY
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Jeffrey Duncan, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
AND INSULAR AFFAIRS
JOHN FLEMING, LA, Chairman
GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democratic Member
Don Young, AK Eni F.H. Faleomavaega, AS
Robert J. Wittman, VA Frank Pallone, Jr., NJ
Jeff Duncan, SC Madeleine Z. Bordallo, GU
Steve Southerland, II, FL Pedro R. Pierluisi, PR
Bill Flores, TX Colleen W. Hanabusa, HI
Andy Harris, MD Vacancy
Jeffrey M. Landry, LA Edward J. Markey, MA, ex officio
Jon Runyan, NJ
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, March 22, 2012......................... 1
Statement of Members:
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Prepared statement of.................................... 3
Sablan, Hon. Gregorio, a Delegate in Congress from the
Commonwealth of the Northern Mariana Islands............... 3
Prepared statement of.................................... 5
Statement of Witnesses:
Gibson, Terry, Principle, North Swell Media, LLC............. 16
Prepared statement of.................................... 18
LeBlanc, Justin, Federal Representative, United Catcher Boats 26
Prepared statement of.................................... 28
Mannina, George J., Jr., Partner, Nossaman, LLC.............. 21
Prepared statement of.................................... 22
Zales, Captain Robert F., II, President, National Association
of Charterboat Operators................................... 6
Prepared statement of.................................... 8
Zurn, Gary, Senior Vice President Marketing, Big Rock Sports,
LLC........................................................ 10
Prepared statement of.................................... 12
Additional materials supplied:
Longton, Aaron, F/V Goldeneye, Port Orford, Oregon, Statement
submitted for the record................................... 53
Shinnecock Indian Nation, Statement submitted for the record. 54
OVERSIGHT HEARING ON ``EMPTY HOOKS: THE NATIONAL OCEAN POLICY IS THE
LATEST THREAT TO ACCESS FOR RECREATIONAL AND COMMERCIAL FISHERMEN.''
----------
Thursday, March 22, 2012
U.S. House of Representatives
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 9:30 a.m., in
Room 1324, Longworth House Office Building, Hon. John Fleming
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, Wittman, Duncan,
Southerland, Runyan, Sablan, Faleomavaega, Bordallo, and
Markey.
Dr. Fleming. The Subcommittee will come to order. The
Chairman notes the presence of a quorum. Good morning. Today
the Subcommittee on Fisheries, Wildlife, Oceans and Insular
Affairs will conduct an oversight hearing titled, ``Empty
Hooks: The National Ocean Policy is the Latest Threat to Access
for Recreational and Commercial Fishermen.''
Under the Committee Rule 4(f), opening statements are
limited to the Chairman and Ranking Member of the Subcommittee,
so that we can hear from our witnesses more quickly. However, I
ask unanimous consent to include any other Members' opening
statements in the hearing record, if submitted to the Clerk by
close of business today.
[No response.]
Dr. Fleming. Hearing no objection, so ordered.
STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Dr. Fleming. I would like to welcome our witnesses and
thank them for coming to Washington to present their testimony.
As many of you are aware, coastal communities are feeling the
pain of tough economic times, and fishermen are having a hard
time making ends meet. Both recreational and commercial
fishermen are seeing their harvest levels reduced, the areas
available to them diminished, and the cost of doing business
increased.
This Subcommittee has heard loud and clear from many parts
of the country that commercial and recreational fishing are
being restricted due to inadequate or old data. While Congress
has required that science should be underpinning of management
decisions, this Subcommittee has heard testimony that layer
upon layer of precaution are being included in the scientific
calculations to set harvest levels. This overly precautionary
level of management is affecting the economies of our coastal
communities.
In addition to inadequate data, fishermen are seeing their
access to fishing grounds restricted. Efforts to create marine-
protected areas are growing even as questions about their
effectiveness are being raised. At an earlier hearing, we heard
that efforts such as the California Marine Life Protection Act
were disadvantaging fishermen, while increasing the cost of
management and enforcement, and were being imposed with little,
if any, input from fishermen.
Currently, only 272 out of the 556 national wildlife
refuges are open to recreational fishing. And unless there are
special circumstances, all of these refuges are closed to
commercial fisheries. In the past, this was not much of a
concern, because many--not many refuges extended into the
marine environment. However, as more refuges and marine
monuments are created or restrictions implemented, this lack of
basic access is disturbing.
In addition, I understand the National Park Service is now
undertaking a policy to restrict recreational fishing access to
national parks restricting fishermen in one park at a time.
And, at the same time that scientists are recognizing the
importance of man-made structures to rebuilding the red snapper
population in the Gulf of Mexico, the Department of the
Interior is pushing to remove some of these same structures at
an expedited rate without regard to the effect on fisheries.
And to make matters worse, a few years ago the
Environmental Protection Agency proposed regulating rainwater
that comes off the decks of fishing vessels. Without
congressional intervention, this would have already have been
implemented, and thousands of fishermen would have been
required to either collect rainwater or apply for discharge
permits from the EPA.
With all this as a backdrop, the Obama Administration has
proposed a National Ocean Policy that will add new regulations
and implement closures that will affect fishermen, as well as
inland activities. Of the nine national priority objectives in
the National Ocean Policy, four call for closed areas or
restrictions on activities, including fishing. To make matters
worse, the policy requires that all of these decisions be made
by Federal officials behind closed doors.
There is no opportunity for direct stakeholder
participation in these decisions. At a time of tight budgets, I
believe this new policy is draining resources away from
existing missions and duties of a number of Federal agencies.
Yet this administration either cannot or will not answer
questions about where the funding for this far-reaching
national zoning effort is coming from. This Subcommittee will
examine these funding questions, and will continue to raise
concerns with the National Ocean Policy and its objectives.
I appreciate the witnesses being here today, and I look
forward to your testimony. I now recognize our Ranking Member,
Mr. Sablan, for any statement he would like to make.
[The prepared statement of Dr. Fleming follows:]
Statement of The Honorable John Fleming, Chairman,
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
I would like to welcome our witnesses to today's hearing titled
``Empty Hooks: The National Ocean Policy Is The Latest Threat to Access
for Recreational and Commercial Fishermen''.
As many of you are aware, coastal communities are feeling the pain
of tough economic times and fishermen are having a hard time making
ends meet. Both recreational and commercial fishermen are seeing their
harvest levels reduced, the areas available to them diminished, and the
cost of doing business increased.
This Subcommittee has heard loud and clear from many parts of the
country that commercial and recreational fishing are being restricted
due to inadequate or old data. While Congress has required that science
should be the underpinning of management decisions, this Subcommittee
has heard testimony that layer upon layer of precaution are being
included in the scientific calculations to set harvest levels. This
overly precautionary level of management is affecting the economies of
our coastal communities.
In addition to inadequate data, fishermen are seeing their access
to fishing grounds restricted. Efforts to create Marine Protected Areas
are growing even as questions about their effectiveness are being
raised. At an earlier hearing, we heard that efforts such as the
California Marine Life Protection Act were disadvantaging fishermen
while increasing the costs of management and enforcement--and were
being imposed with little if any input from the fishermen. Currently,
only 272 out of the 556 National Wildlife Refuges are open to
recreational fishing and, unless there are special circumstance, all of
these Refuges are closed to commercial fisheries. In the past, this was
not as much of a concern because not many Refuges extended into the
marine environment; however, as more Refuges and Maine Monuments are
created or restrictions implemented, this lack of basic access is
disturbing. In addition, I understand the National Park Service is now
undertaking a policy to restrict recreational fishing access to
National Park's--restricting fishermen in one Park at a time.
And at the same time that scientists are recognizing the importance
of man-made structures to rebuilding the red snapper population in the
Gulf of Mexico, the Department of the Interior is pushing to remove
some of these same structures at an expedited rate without regard to
the effect on fisheries. And to make matters worse, a few years ago the
Environmental Protection Agency proposed regulating rainwater that
comes off of the decks of fishing vessels. Without Congressional
intervention, this would have already been implemented and thousands of
fishermen would have been required to either collect rainwater or apply
for discharge permits from the EPA.
With all of this as a backdrop, the Obama Administration has
proposed a National Ocean Policy that will add new regulations and
implement closures that will affect fishermen as well as inland
activities. Of the nine National Priority Objectives in the National
Ocean Policy, four call for closed areas or restrictions on
activities--including fishing. To make matters worse, the Policy
requires that all of these decisions be made by federal officials
behind closed doors. There is no opportunity for direct stakeholder
participation in these decisions.
At a time of tight budgets, I believe this new Policy is draining
resources away from existing missions and duties of a number of federal
agencies. Yet this Administration either cannot, or will not, answer
questions about where the funding for this far-reaching national zoning
effort is coming from.
This Subcommittee will examine these funding questions and will
continue to raise concerns with the National Ocean Policy and its
objectives.
I appreciate the witnesses being here today and I look forward to
your testimony.
______
STATEMENT OF THE HON. GREGORIO SABLAN, A DELEGATE IN CONGRESS
FROM THE NORTHERN MARIANA ISLANDS
Mr. Sablan. Thank you very much, Chairman Fleming, and good
morning, everyone.
In the Northern Mariana Islands, we are fortunate to have
the beautiful coral reefs of Laolao Bay. With thousands of
visitors each year, 47 percent of which are recreational
fishermen, Laolao is a vital component to Saipan's tourism
industry. Some of these reefs are valued at over $10 million
per square kilometer. However, illegal burning of forests and
the subsequent erosion have caused water quality to decline,
which has reduced the number of dominant coral species in the
area from 15 to 5.
Through a stakeholder-driven initiative, our local
government and citizens worked with Federal agencies to develop
an ecosystem-based management strategy. These local and Federal
partnerships help fund and implement sustainable practices on
land that will improve water quality, create over 100 jobs, and
secure the health of our coral reef ecosystems, which are vital
to our economy, including the recreational fishing industry.
The President's National Ocean Policy will facilitate this
type of comprehensive ecosystem-based management that is
critical to the health of our oceans and the fish populations
that sustain the livelihood of so many people in this room. The
United States and Territories have exclusive economic
jurisdiction over approximately 4.5 million square miles of
ocean, which is larger than the total combined land area of all
the States and Territories.
Our coastal counties, which make up only 18 percent of the
country's land area, are home to roughly 36 percent of our
Nation's population. That is 108 million--over 108 million
people. And these numbers are steadily increasing. Growing uses
within our ocean and coastal areas are placing significant
pressures on our natural resources.
The President, utilizing input from thousands of local,
State, Tribal, Territorial, and stakeholders, have provided a
unifying structure to develop management strategies for our
oceans, coasts, and Great Lakes. This is not a Federally
mandated process. This does not create more regulations. But it
does offer tools for regions to engage stakeholders in a
scientifically informed, comprehensive ocean-planning process.
Moreover, the implementation plan is still in draft form and
open for public comment. And, therefore, it has not been
finalized.
Fourteen States and Territories have already incorporated
stakeholder-driven, comprehensive ocean planning into their
management plans. Efficient interaction between State and
Federal agencies is not only critical to the implementations of
this plan, but necessary during these austere financial times.
The National Ocean Policy will ensure these agencies are
working transparently to facilitate the work of state and
regional plans.
Personally, our ocean economy supports over 2.8 million
jobs, including tourism, recreation, and fishing sectors.
Commercial fishing alone contributes over $70 billion annually
to our Nation's economy, while over 25 million Americans fish
recreationally every year. It is critical that fishermen are
involved in the earliest communications of the ocean-planning
process. The National Ocean Policy provides the framework to
bring fishermen into the planning process with mechanisms to
establish any number of planning advisory boards, in addition
to the inclusion of fisheries management councils on the
regional planning bodies.
Let us move forward with the planning process where
conflicts in ocean use can be minimized, and where healthy
ocean ecosystems support vibrant, traditional, and new ocean
uses alike. And I join the Chairman in wanting to hear what
everyone has to say in today's hearing. Thank you very much for
joining us.
[The prepared statement of Mr. Sablan follows:]
Statement of The Honorable Gregorio Kilili Camacho Sablan, Ranking
Member, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Thank you, Chairman Flemming.
In the Northern Marianas Islands, we are fortunate to have the
beautiful coral reefs of Laolao Bay. With thousands of visitors each
year, 47% of which are recreational fishermen, Laolao is a vital
component to Saipan's tourism industry. Some of these reefs are valued
at over $10 million per square kilometer. However, illegal burning of
forests and the subsequent erosion have caused water quality to
decline, which has reduced the number of dominant coral species in the
area from 15 to 5. Through a stakeholder-driven initiative, our local
government and citizens worked with federal agencies to develop an
ecosystem based management strategy.
These local and federal partnerships helped fund and implement
sustainable practices on land that will improve water quality, create
over 100 jobs and secure the health of our coral reef ecosystems, which
are vital to our economy, including the recreational fishing industry.
The President's National Ocean Policy will facilitate this type of
comprehensive ecosystem based management that is critical to the health
of our oceans and the fish populations that sustain the livelihood of
so many people in this room.
The United States and territories have exclusive economic
jurisdiction over approximately 4.5 million square miles of ocean,
which is larger than the total combined land area of all the states and
territories. Our coastal counties, which make up only 18% of the
country's land area, are home to 108.3 million people--roughly 36% of
our nation's population--and these numbers are steadily increasing.
Growing uses within our ocean and coastal areas are placing significant
pressures on our natural resources.
The President, utilizing input from thousands of local, state,
tribal, territorial and stakeholders, has provided a unifying structure
to develop management strategies for our oceans, coasts, and Great
Lakes. This is not a federally mandated process; this does not create
new regulations; but, it does offer tools for regions to engage
stakeholders in a scientifically informed, comprehensive ocean planning
process. Furthermore, the Implementation Plan is still in draft form
and open for public comment and therefore has not been finalized.
Fourteen states and territories have already incorporated
stakeholder-driven comprehensive ocean planning into their management
plans. Efficient interaction between state and federal agencies is not
only critical to the implementation of these plans, but necessary
during these austere financial times. The National Ocean Policy will
ensure these agencies are working transparently to facilitate the work
of state and regional plans.
Currently, our ocean economy supports over 2.8 million jobs,
including tourism, recreation, and fishing sectors. Commercial fishing
alone contributes over $70 billion annually to our nation's economy,
while over 25 million Americans fish recreationally every year. It is
critical that fishermen are involved in the earliest communications of
the ocean planning process. The National Ocean Policy provides a
framework to bring fishermen into the planning process with mechanisms
to establish any number of planning advisory boards in addition to the
inclusion of Fisheries Management Councils on the Regional Planning
Bodies. Let's move forward with a planning process where conflicts in
ocean use can be minimized and where healthy ocean ecosystems support
vibrant traditional and new ocean uses alike.
______
Dr. Fleming. I thank the Ranking Member. Now we will turn
to our panel.
First of all, like all witnesses, your written testimony
will appear in full in the hearing record, so I ask that you
keep your oral statements to five minutes, as outlined in our
invitation letter to you, and under Committee Rule 4(a). Our
microphones are not automatic, so please push the button when
it is your time to talk, and make sure it is in front of you,
because your voice cannot be picked up unless it is reasonably
close to your mouth.
Also, our timing lights, I will explain those briefly. You
have five minutes to speak. You will be, in the first four
minutes, under green light, then yellow for the last minute.
And when it turns red, we ask that you go ahead and conclude
your remarks.
Now I would like to ask unanimous consent to recognize Mr.
Southerland to introduce one of our witnesses today.
[No response.]
Dr. Fleming. Without objection.
Mr. Southerland. Thank you, Mr. Chairman. It is great to
have the wonderful panel we have here today. And one of our
panelists today is a gentleman who is extremely important to
our fishing efforts in our neck of the woods. I live in Panama
City, Florida. And so today we are honored to have Captain Bob
Zales.
Captain Zales has been involved in fisheries since he
entered the business with his family, a charter fishing
business, back in our home district of Panama City, Florida, in
1966, and has been involved in fishing for over 47 years. In
1986 he began his interest in fishery management, and working
to represent his fellow fishermen, providing expert testimony
and serving on various advisory panels for local, State, and
Federal agencies, working to ensure that common sense is
applied to the management of our natural resources.
He has been active in local and national charterboat
associations, and has been a member of the National Association
of Charterboat Operators since 1991, a board member since 1997,
and president since 1999. Captain Zales has vast knowledge of
the many regulatory agencies and the regulations affecting the
charter-for-hire industry. He is recognized nationally as an
expert in his field. It is great to have Captain Zales here.
And I welcome him to the panel today. Thank you. Mr. Chair, I
yield back.
Dr. Fleming. I thank the gentleman from Florida. Next I
would like to introduce Mr. Gary Zurn, Senior Vice President,
Marketing, Big Rock Sports, LLC; Mr. Terry Gibson, Principal,
North Swell Media, LLC; Mr. George J. Mannina--am I saying that
correctly? A junior partner, Nossaman, LLC. And Mr. Justin
LeBlanc, Federal Representative, United Charter Boats. Catcher?
Oh, OK. We had a typo. United Catcher Boats.
OK. Captain Zales, you may begin. Five minutes are yours,
sir.
STATEMENT OF ROBERT F. ZALES, II, PRESIDENT,
NATIONAL ASSOCIATION OF CHARTERBOAT OPERATORS
Mr. Zales. Thank you. And thank you, Steve, for that kind
introduction. Chairman Fleming, Ranking Member Sablan, and
members of the Subcommittee, my name is Robert F. Zales, II,
and I am appearing today on behalf of the National Association
of Charterboat Operators. I wish to thank you, my
representative, Steve Southerland, and the other members of the
Committee for your kind invitation to present testimony.
NACO is a non-profit association representing charterboat
owners and operators across the United States, including the
Great Lakes. I also serve on the board of several other
recreational fishing associations, as well as the National
Ocean Policy Coalition. I have been involved in fishing for
over 47 years, with over 21 years of that time involved with
local, state, and Federal fishery management; providing expert
testimony; serving on a host of advisory panels; and working to
ensure that reason and common sense are applied to the
management of our natural resources.
One stroke of a pen has expanded to a proposed National
Ocean Policy Implementation Plan that will create regional
planning bodies who will adopt a comprehensive national
ecosystem-based management principle, implement coastal and
marine spatial planning and management, and a host of other
management objectives. All these proposals are already being
researched and, in some cases, proposed under the Magnuson-
Stevens Fishery Conservation and Management Act and other
Federal management efforts. Apparently, Mr. Chairman, you and
your colleagues are not necessary to the proper management and
care of our natural marine and land-based resources, as
Congress has been left totally out of the NOP process.
According to NOAA/NMFS, recreational salt water fishing,
the commercial fishing industry, and seafood retailers combine
to contribute over $208 billion, and provided over 1,811,000
jobs in 2009. This impact was derived on less than 20 percent
of the seafood provided locally, as over 80 percent of our
nation's seafood is imported.
The current NOP process suggests that the nation's
stakeholders have been actively involved and able to provide
input. This is blatantly untrue. The fast-tracking underground,
lack of adequate public notice, and haphazard manner where
vital stakeholders are left out by the administration is clear
indication they want this policy to be fully implemented before
anyone is aware of the real impacts of the proposed policy.
Under the CMSP process, there are nine regional planning
bodies proposed that will include membership of Federal, State,
and Tribal representatives. No fishing representatives are to
be included. We already have eight Regional Fishery Management
Councils and the NOAA/NMFS, along with EPA, the United States
Coast Guard, Fish and Wildlife Service, Bureau of Ocean Energy
Management, 300 State fishery commissions, coastal State
resource management agencies, and a host of others providing
management of our resources. Do we need another layer of
unaccountable Federal bureaucrats costing taxpayers millions of
dollars on top of all these to provide management?
Few Federal legislators know where the funding for the NOP
comes from now. Who will control the funding and oversight in
the future? No fishing seasons, overly restrictive bag limits
and quotas, closed areas to boating and fishing, the Endangered
Species Act, Clean Water Act, EPA engine emission regulations,
marine-protected areas, marine mammal interactions, gear
restrictions, U.S. Coast Guard regulations that include a host
of vessel safety and manning requirements, medical review
process, navigation restrictions, the FCC radio license and
requirements and more adversely regulating fishermen.
The NOP process will create new and expanded regulatory
requirements creating more regulatory burdens and expanding
costs to our businesses. According to information provided at a
recent hearing, Representative Southerland found, in the final
recommendations of the Interagency Ocean Policy Task Force July
19, 2010, on page 30 it states, ``The plan would be adapted to
allow for more modification and addition of new actions based
on new information and changing conditions.'' Their effective
implementation would also require clear and easily understood
requirements and regulations where appropriate, that include
enforcement as a critical component.
While several lead agency heads have stated the NOP has no
regulatory authority, the NOP will be adding new and expanded
regulations on already-over-regulated industries and
activities. Fishing activity and boating are now at an all-time
low. Allowing the NOP to continue without congressional
oversight will continue to reduce the fishing and boating
activity which will result in lost jobs, lost wages, and lost
taxes.
The NOP does nothing but add new layers of unaccountable
Federal Government employees, while doing nothing to enhance
our economy or our resources. Everything in the NOP process is
already being implemented, proposed, or thought of. In
addition, the NOP continues the strangulation of our offshore
oil and gas industries by further restricting the exploration,
mining, and production of these resources. In the Gulf of
Mexico, the expanded effort to remove non-productive oil and
gas platforms that have become essential fish habitat is a
growing problem, when the NOAA/NMFS requires sustainable
fisheries. How do you sustain a resource without habitat?
In lieu of the NOP, a government agency coordinator could
ensure all agencies work together so projects, permitting,
regulatory actions, and continued enhancement of our marine and
land resources are coordinated. This coordination of agencies
should reduce the burdens placed on the fishing and other
industries. In these difficult economic times, this would save
taxpayers countless dollars, and would increase regulatory
burdens and provide a real common-sense approach to making
government more efficient and less costly.
Mr. Chairman, this concludes my testimony. Thank you.
[The prepared statement of Mr. Zales follows:]
Statement of Capt. Robert F. Zales, Ii, President,
National Association of Charterboat Operators
Chairman Fleming, Ranking Member Sablan, and Members of the
SubCommittee, my name is Robert F. Zales, II and I am appearing today
on behalf of the National Association of Charterboat Operators (NACO).
I wish to thank you; my Representative Steve Southerland and the other
Members of the Committee for your kind invitation to present testimony
on the Threat to Access for Recreational and Commercial Fishermen by
the National Ocean Policy (NOP).
NACO is a non-profit 501 (c) (6) association representing charter
boat owners and operators across the United States including the Great
Lakes. I also serve on the Board of several other recreational fishing
associations and am involved with a national coalition of recreational
for hire, private recreational, and commercial fishing associations as
well as the National Ocean Policy Coalition. I have been involved in
fishing for over 47 years with over 21 years of that time involved with
local, state, and federal fishery management providing expert
testimony, serving on a host of advisory panels, and working to ensure
that reason and common sense are applied to the management of our
natural resources.
On July 19, 2010 President Obama signed and executed Presidential
Executive Order 13547 creating the National Ocean Policy and resulting
National Ocean Council. Less than two years later, this one stroke of a
pen has expanded to a proposed National Ocean Policy Implementation
Plan that will create Regional Planning Bodies who will adopt a
comprehensive National ecosystem based management principal, implement
comprehensive, integrated, ecosystem based coastal and marine spatial
planning and management, and a host of other management objectives. All
of these proposals are already being researched and in some cases
proposed under the Magnuson-Stevens Fishery Conservation and Management
Act and other federal management efforts. Apparently, Mr. Chairman, you
and your colleagues are not necessary to the proper management and care
of our natural marine and land based resources as Congress has been
left totally out of the NOP process.
Charter, commercial, and saltwater recreational fishing is
extremely important to the United States, both economically and
socially. According to the NOAA publication Fisheries Economics of the
United States for 2009 Recreational Saltwater Fishing produced sales
impacts from angling and durable expenditures totaling $50 BILLION and
value added impacts of $23 BILLION while providing over 327,000 JOBS in
2009. In addition the Commercial Fishing industry provided over 1
MILLION JOBS, $116 BILLION in sales and $32 BILLION in income impacts.
Seafood Retailers added another 484,000 JOBS and contributed another
$10 BILLION to the nations' economy. This impact is derived on less
than 20% of the seafood provided locally as over 80% of our Nation's
seafood is imported. Just in my small coastal community of Panama City,
Florida, according to the local Tourist Development Council, 15% of
Tourism Dollars comes from saltwater recreational fishing. All of these
industries depend on our healthy and resilient resources and must have
flexibility in management in order to survive.
The current NOP process, has from day one, suggested that the
Nation's stakeholders have been actively involved and able to provide
input. The true nature of the activity shows this is blatantly untrue.
The fast tracking underground, lack of adequate public notice, and
haphazard manner where vital stakeholders are left out by the
administration is clear indication they want this policy to be fully
implemented before anyone is aware of the real impacts of the proposed
policy. One has to wonder, if a policy is so great then why has
Congress been left out of the process and why do the citizens of this
country know so little?
Under the Coastal and Marine Spatial Planning process there are
nine (9) Regional Planning Bodies proposed that will include membership
of Federal, State, and Tribal representatives, no fishing
representatives are to be included. How does this process include
Stakeholders such as Recreational and Commercial fishermen who may be
affected the most? We already have eight (8) Regional Fishery
Management Councils and the agencies of NOAA/NMFS along with EPA, the
United States Coast Guard, the Fish and Wildlife Service, the Bureau of
Ocean Energy Management, three (3) Interstate Fishery Commissions,
coastal State Resource Management Agencies, and a host of others
providing management of our resources. Why do we need another
bureaucratic entity costing taxpayers millions of dollars on top of all
of these to provide more management? Few federal legislators know where
the funding for the NOP comes from now, who will control the funding
and oversight in the future?
Recreational and Commercial Fishermen are currently over regulated
and negatively impacted in every arena. No fishing seasons, overly
restrictive bag limits and quotas, closed areas to boating and fishing,
the Endangered Species Act, the Clean Water Act, EPA Engine Emission
regulations, Marine Protected Areas, Marine Mammal Interactions, gear
restrictions, U. S. Coast Guard regulations that include a host of
vessel safety requirements, specific manning requirements, life saving
requirements, licensing, drug and alcohol testing, medical review
process, navigation restrictions, FCC radio licensing and requirements,
and more. Every agency and every requirement costs fishermen and our
communities dollars.
The Fishing Industry (recreational and commercial) cannot absorb
any more regulatory burden. Many fishermen have left fishing because
they have simply been regulated out of business. The costs and
regulatory burdens have driven private recreational fishermen to find
other forms of recreation. They have forced the recreational for-hire
owner out of business because the consumer is unwilling to continue to
pay more for the government requirements as the costs of regulations
cannot be passed on. Commercial fishermen are being forced out of
business because the profit margins are not sustainable. All of this
also impacts the support businesses such as tackle shops, boat
builders, and seafood dealers.
The NOP process has the potential and is likely to create new and
expanded regulatory requirements in addition to those we have, creating
more regulatory burdens and expanding costs to our businesses.
According to information provided at a recent hearing by Representative
Southerland found in the Final Recommendations of the Interagency Ocean
Policy Task Force, July 19, 2010 on page 30, it states ``The plans
would be adaptive to allow for modification and addition of new actions
based on new information or changing conditions. Their effective
implementation would also require clear and easily understood
requirements and regulations, where appropriate, that include
enforcement as a critical component.'' While several lead agency heads
have stated the NOP has no regulatory authority, it is clear that the
NOP will be adding new and expanded regulations on already overly
regulated industries and activities.
Fishing activity and boating are at an all time low. Government
requirements and expense keep growing and allowing the NOP to continue
without Congressional oversight will only continue to reduce this
fishing and boating activity which will result in lost JOBS, lost
WAGES, and lost TAXES which will harm families and our communities. The
NOP does nothing but add new layers of unaccountable federal government
employees while doing nothing to enhance our economy or our resources.
Everything the NOP proposes is already being implemented, proposed, or
thought of.
In addition the NOP continues the strangulation of our offshore oil
and gas industries by further restricting exploration, mining, and
production of these resources. This further hampers fishermen due to
the ever increasing fuel costs. In the Gulf of Mexico the expanded
effort to remove non productive oil and gas platforms that have become
essential fish habitat is a growing problem when the NOAA/NMFS requires
sustainable fisheries. How do you sustain a resource without habitat?
In lieu of the NOP, a government agency coordinator could ensure
all agencies work together so projects, permitting, regulatory actions,
and continued enhancement of our marine and land resources are
coordinated. This coordination of agencies should reduce the burdens
placed on the fishing and other industries. In these difficult economic
times, this would save tax payers countless dollars, would not increase
regulatory burdens, and provide a real common sense approach to making
government more efficient and less costly.
Mr. Chairman, this concludes my testimony. Again, I truly
appreciate the invitation and opportunity to provide you and the
committee with this information. I will be pleased to respond to any
questions.
______
Dr. Fleming. Thank you, Captain Zales. Thank you for your
testimony.
And next up is Mr. Zurn.
You are now recognized, sir, for five minutes.
STATEMENT OF GARY ZURN, SENIOR VICE PRESIDENT MARKETING, BIG
ROCK SPORTS, LLC
Mr. Zurn. Good morning, Mr. Chairman and members of the
Subcommittee. Thank you for the opportunity to speak with you
today.
My name is Gary Zurn. I am Senior Vice President and part
owner of Big Rock Sports, the wholesale distributor of fishing,
marine, camping, and shooting sports products. Our offices are
headquartered in Newport, North Carolina, with five
distribution facilities across the U.S. and three in Canada. I
am here today not only to represent my company and our 15,000
outdoor sporting goods retailers, but also the millions of
recreation anglers across the Nation who are facing
increasingly complex and restrictive fishing regulations,
rising gas prices, and unprecedented new threats to fishing
access, particularly in our marine waters.
Recreational fishing generates a powerful economic engine
that provides employment for approximately one million
Americans, and the bulk of the funding for aquatic resources
management and conservation. Anglers and businesses depend on
healthy and abundant fisheries. But as the Nation strives to
end over-fishing and rebuild depleted fish stocks, we have
often struggled to balance resource conservation with
preserving the economic and social values of recreational
fishing.
Recent changes in 1996 and 2006 to our Federal fisheries
management law, the Magnuson-Stevens Act, have made significant
strides in rebuilding fisheries. However, these improvements
have come with considerable sacrifices made by fishermen. Many
provisions of the law are predicated on timely and quality
scientific fisheries data, which is sorely lacking across NOAA
Fisheries. This overall lack of quality data, combined with
strict legal requirements to end over-fishing and set catch
limits on all stocks under Federal management, has resulted in
decisions that have taken anglers off the water, cost jobs, and
degraded the public's trust in NOAA Fisheries.
Another fisheries management approach to place areas of
ocean off-limits to all fishing has steadily gained more
attention. This concept, commonly known as marine reserves,
marine-protected areas, or MPAs, is now often proposed as a
catch-all solution to any aquatic resources management issues,
without regard for the negative economic and jobs impact these
restrictions will have.
California is finalizing a state-wide MPA effort which is
not needed, which it cannot pay for, that is placing 15 to 20
percent of the State's most productive coastal waters off
limits to fishing, through a process called the Marine Life
Protection Act Initiative.
On the other side of the country, officials at Biscayne
National Park are proposing to close a significant portion of
South Florida's most popular and productive shallow-water reefs
to all fishing, despite strong public opposition and the lack
of scientific evidence. Fisheries and public waters are being
closed at an alarming rate, and this has made the recreational
fishing community increasingly sensitive to potential threats
to our sport. Rather than providing an opportunity to expand
and promote fishing access to our oceans, anglers cannot help
but view the National Ocean Policy, particularly coastal and
marine spatial planning, as another effort to place areas off
limits to the public.
In contrast, the administration's other major resource
conservation initiative, America's Great Outdoors, is
increasing and improving recreational access, one of the
primary goals. And our community has strongly embraced this
initiative. The National Ocean Policy, however, has created
considerable concern, primarily due to its treatment of
recreational uses as one of many ocean sectors for which
planning activities will occur. And the policy's vaguely
defined ideas of protection and precaution open a pathway to
closed areas of recreational fishing.
In several States that have undertaken coastal and marine
spatial-planning process, including Massachusetts, Rhode
Island, and Washington, existing authority of fisheries
management agencies was recognized from the outset, and
potential impacts on fishing were required to be minimized.
This went a long way toward alleviating concerns that fishing
activities would be unnecessarily restricted by spatial
planning bodies which have little, if any, expertise in
fisheries management.
To date, the recreational fishing community's concerns have
largely gone unheard, despite numerous letters and discussions
with administrative officials. It is our hope that the
administration will assure that ocean planning will not result
in more fishing closures, but follow the lead of States like
Massachusetts, that elevated the status of recreational
fishing. We do not want to see the administration follow the
path California has taken.
Thank you for your time, and I am happy to answer any
questions this committee may have.
[The prepared statement of Mr. Zurn follows:]
Statement of Gary Zurn, Senior Vice President Marketing,
Big Rock Sports, LLC
Good morning, Mr. Chairman. Thank you for this opportunity to speak
before this subcommittee today. My name is Gary Zurn. I'm senior vice-
president and part owner of Big Rock Sports, a wholesale distributor of
fishing, marine, camping and shooting sports products. Our offices are
located in Newport, NC along the Crystal Coast on the southernmost part
of the outer banks. Along with my wife Ruth and son Graig we have lived
there for the past 19 years, and have enjoyed our opportunities to fish
recreationally, both offshore and inshore along the North Carolina
coast.
My company, Big Rock Sports, has five distribution facilities
across the United States, and 3 in Canada. Our U.S. locations include
Hamlet, NC; Sauk Rapids, MN; Billings, MT; Clackamas, OR; and Fresno,
CA. At Big Rock Sports our tagline is ``Outfitting the North American
Sportsman''. We are international in the scope of our business,
regional in our product assortments, and local in our business
relationships. We currently service 15,000 outdoor sporting goods
retailers, carry 110,000 unique products from over 1,200 manufacturers,
and have a direct field sales force of 150 sales representatives across
the US.
Along with my involvement at Big Rock Sports, I also serve on the
board of the American Sportfishing Association. In addition to being on
the board, I serve as Chairman of its Government Affairs Saltwater
subcommittee, and also serve on its KeepAmericaFishing advocacy
committee. I'm here today to not only represent my company and our
15,000 outdoor sporting goods retailers, but also the millions of
recreational anglers across the nation who are facing increasingly
complex and restrictive fishing regulations and unprecedented new
threats to fishing access, particularly in our marine waters.
Recreational fishing generates a powerful economic engine that, in
addition to providing employment for approximately one million
Americans, provides the bulk of funding for aquatic resources
management and conservation. In 2006--the last year that NOAA Fisheries
generated national estimates of effort and participation--24.7 million
saltwater anglers took nearly 100 million recreational fishing trips
(97.7 million). Through fishing-related expenditures, including food,
lodging, fuel, bait, tackle, gear, boats, houses and vehicles,
saltwater recreational anglers generated $92.2 billion in total sales.
In addition to expenditures on trip costs and fishing equipment,
anglers contribute a considerable amount to direct fisheries management
at the state level. Across all states, recreational anglers contribute
$621.5 million in license purchases and $329.8 million across just the
coastal states (2010 estimates). The vast majority of this money
returns directly to management and enhancement of recreational fishing.
In addition to license sales, through the excise taxes on fishing
equipment and fuel purchases, recreational anglers contribute $650
million to state fishery management through the Sport Fish Restoration
Program, also known as Wallop-Breaux.
However, this traditional American pastime that provides the
backbone for fisheries conservation and supports coastal economies
across the nation is threatened like never before. As we strives to end
overfishing and rebuild depleted fish stocks, all across the nation
anglers are being required to change where and how they fish, and in
many cases are facing fewer or diminished fishing opportunities. The
implementation of new fisheries management approaches like marine
protected areas, catch shares and annual catch limits has put anglers
on guard like never before, and the Obama Administration's National
Ocean Policy is yet another issue that anglers view as a potential
threat to the future of fishing as we know it in this country. The
rollout of the National Ocean Policy has created even greater
uncertainty as anglers and recreational-fishing dependent businesses
struggle to understand how recreational access will be treated in this
complex policy. What the recreational fishing community sees in the
National Ocean Policy is not improved science to drive better fisheries
management or efforts to promote getting Americans out on the water;
but rather more confusing bureaucracy and the serious potential that
public waters will be placed off-limits based on poorly-defined ideas
of protection and precaution.
The stated vision of the National Ocean Policy is ``an America
whose stewardship ensures that the ocean, our coasts, and the Great
Lakes are healthy and resilient, safe and productive, and understood
and treasured so as to promote the well-being, prosperity, and security
of present and future generations.'' How could anyone be against that?
As is often the case, however, the devil is in the details, and when
the recreational fishing community looks into this policy we see the
strong potential that our community will not be adequately recognized
in this process of planning where and how uses can take place in the
ocean. What the federal government is contemplating with Coastal and
Marine Spatial Planning (CMSP) is not a new concept, as several states
have already embarked on similar processes. We would like to see this
national process follow the lead of Massachusetts, which gave special
recognition to fishing and essentially prohibited these activities from
being further regulated under CMSP, and not California, which ignored
the recreational fishing community and has closed many of the state's
prime fishing areas.
The Painful Progress of Federal Fisheries Management
While our inland fisheries resources have been well managed by
state fish and wildlife agencies for over a hundred years, saltwater
fisheries management, particularly on the recreational side, is
relatively new. As a result of decades of inattention despite
increasing commercial and recreational fishing pressure, many marine
fish stocks declined significantly during the 20th century, prompting
serious reforms in our federal fisheries management law--the Magnuson-
Stevens Fishery Conservation and Management Act (MSA)--in 1996 and
2006. New measures to end overfishing and rebuild overfished stocks
have, in general, made significant strides. For example, according to
NOAA Fisheries, the percentage of federally-managed stocks experiencing
overfishing declined from 38 percent in 2000 to 20 percent in 2010.
These improvements have not come without considerable sacrifices
made by recreational and commercial fishermen, however, and the law as
written is far from perfect. Many provisions of the law, including the
requirement to set annual catch limits on all stocks under federal
management, are predicated on up-to-date and quality scientific data on
fisheries. NOAA Fisheries presently has 528 stocks of fish or complexes
of stocks under management, but only has updated stock assessment data
on 121 of the 528. In addition, angler harvest data, which is the basis
for many fisheries management decisions, has being collected by the
Marine Recreational Fishing Statistics Survey, which the National
Research Council concluded was incapable of being used for any purpose.
NOAA Fisheries has long operated under a system that moves slowly
and has significant gaps in data collection, not to mention one that
has paid little attention to the recreational sector. Good fisheries
management can only take place with a solid foundation of science, and
the 2006 reauthorization of MSA did not sufficiently acknowledge just
how far behind NOAA Fisheries was, and still is, on collecting the data
to lay this foundation. While every region of the country grapples with
limited data to some extent, there is a significant disparity in how
much data is collected across regions. For example, for the past few
years, NOAA Fisheries has been conducting about 80 stock assessments
per year in Alaska. At the same time, it has been assessing 15 stocks a
year in the Gulf of Mexico, South Atlantic and Caribbean combined, and
most of those assessments are for commercial shrimp stocks. For the
sport fish that anglers pursue, NOAA Fisheries does about six
assessments per year. The lack of stock assessment resources devoted to
the southeastern U.S. has created major problems in the region,
particularly recently as legal mandates that were predicated on
adequate data collection must be met. Two recent decisions by NOAA
Fisheries in the South Atlantic highlight the consequences of making
management decisions based on poor data.
After significant declines in the 1960s and 1970s,
red snapper abundance in the South Atlantic has steadily
increased over the last several decades, and most anglers will
tell you that they are now seeing more and larger red snapper
than ever before. However, a 2008 stock assessment of South
Atlantic red snapper--the first in ten years--showed that the
fishery was significantly overfished and undergoing
overfishing, although anglers had been managed throughout this
time under bag and size limits that were determined to be
sufficient by NOAA Fisheries. The new stock assessment
information not only triggered a closure of the red snapper
fishery which is still in effect, but almost led to a ban on
all bottom fishing in a 5,000 square mile area in the South
Atlantic.
Speckled hind and Warsaw grouper are two little known
and rarely caught deepwater fish stocks in the snapper-grouper
complex. Stock assessments have never been conducted on either
stock, but recent catch data (the same data determined by the
National Research Council as being fatally flawed) indicate
that the average size and abundance of these species has
declined. Because they are part of a larger deepwater snapper-
grouper complex and are therefore susceptible to bycatch by
recreational anglers targeting the complex, in 2010, NOAA
Fisheries instituted a complete ban on all bottom fishing in
depths deeper than 240 feet.
The overall lack of quality scientific data, combined with strict
legal requirements to end overfishing and set catch limits on all
stocks, has resulted in numerous management decisions that have taken
anglers off the water, hurt businesses and degraded the public's trust
of NOAA Fisheries. Anglers are willing to make sacrifices for the
betterment of the resource, as long as they know decisions are based on
sound scientific information. But many of the sacrifices being imposed
on the recreational fishing community are instead based on guesswork,
the precautionary principle and fear of lawsuits.
The two examples highlighted above are being reenacted across the
country, and unfortunately many more are soon to come because of a
legal requirement for NOAA Fisheries to place annual catch limits on
all federally managed fish stocks by the end of 2011, regardless of the
lack of quality biological and angler catch data. The ``one size fits
all'' nature of this requirement undermines the discretion by the
Regional Fishery Management Councils and is resulting in hundreds of
new, arbitrary and precautionary limits being put in place. While the
exact consequences remain unforeseen, anglers are expecting even more
closures in the near future due to the guesswork and precaution that
went into these decisions. This is not fisheries management; it's
crisis management.
The Increasing Push for No-Fishing Zones
While the recreational fishing community been has focused on
improving the existing fisheries management framework, another
fisheries management approach has steadily gained more attention over
the last several decades. Rather than devoting resources to proven
fisheries management techniques, like seasons, bag limits, size limits,
etc., some groups are increasingly promoting area-based closures as a
means to protect sensitive habitats, rebuild fish stocks, and a variety
of other stated purposes. Commonly known as marine reserves or marine
protected areas (MPAs), the concept of limiting or completely
restricting fishing in certain areas of the ocean or freshwater bodies
of water has been used effectively in some instances when supported by
science and when all other management options have failed. However,
MPAs are now often proposed as a catchall solution to any aquatic
resource management issue, without regard for the negative economic and
conservation impacts that such draconian restrictions will have.
Recreational fishermen view themselves as conservationists first
and foremost, as evidenced by the millions of dollars they contribute
to fisheries conservation and the countless hours volunteered towards
fish stocking and fisheries habitat projects. Recreational fishing
accounts for just 2 percent of all marine finfish harvest, compared to
the 98 percent harvested by the commercial fishing industry. According
to the NOAA Fisheries, over half of all fish caught by anglers are
released alive. Most recreational fishing gear never comes in contact
with any aquatic habitat, whereas commercial gears like trawls scour
the bottom of the ocean. I say this not to put commercial fishermen in
a bad light, but rather to highlight the relatively light environmental
footprint that recreational fishermen have on the environment, while
also contributing so much- both financially and through volunteer work
on fisheries restoration projects--back into conserving the sport we
love. This point is too often forgotten or ignored when policymakers
and NGOs push for excluding all fishing activities in huge swaths of
the ocean based on ideology rather than science. Anglers across the
country are increasingly seeing more efforts to close public waters for
reasons other than sound science.
California is close to finalizing a statewide effort that will
place 15-20 percent of the state's coastal waters off limits to fishing
through a process called the Marine Life Protection Act Initiative
(MLPA). In areas of the state where closures have already been in
effect, retailers have reported an average loss in sales of 20 percent,
which they attribute to a loss of fishing access as a result of the
MLPA closures. This early indicator will be followed by lost sales and
jobs in the lodging and food industries that support recreational
angler visits to California coastal areas. In the best of times,
economic impacts and job losses such as these should never be forced on
coastal communities by the State without absolute necessity. Today, in
the worst economic climate since the Great Depression, such losses are
entirely unacceptable, especially when the program for which they are
sacrificed is both unnecessary and, quite possibly, actually
destructive to the resources targeted for protection.
There are zero fish stocks in California's coastal waters that are
currently undergoing overfishing. The conservation provisions of the
state's Marine Life Management Act largely have been implemented, and
California's marine fish stocks are rebuilding thanks to traditional
fisheries management tools. Issues including ocean side development,
invasive species, ocean acidification and terrestrial pollution
represent far greater threats to the health of the ocean than
recreational fishing ever has, and none of these other threats can be
addressed or solved by implementing a network of MPAs.
Perhaps at the root of the problem with the MLPA was the fact that
the process was largely funded, through a public-private partnership,
by private organizations that favor fishing closures. Under the MLPA
process dictated by the agreement between the state and the funding
organizations, statutory requirements have been ignored, environmental
review has been flawed, and private meetings that should have been open
to the public were held, during which important decisions were made.
What Californians are left with is a vast, complicated network of
closures that the state cannot afford to monitor and enforce, and which
will only harm anglers and the businesses that depend on fishing while
providing no benefits to the resource.
On the other side of the country, officials at Biscayne National
Park are proposing to close some of south Florida's most popular and
productive shallow water reefs to all fishing. Given its location
adjacent to Miami and abundant recreational opportunities, Biscayne
National Park receives roughly 10 million angler visits a year,
supporting local businesses and providing a unique opportunity for the
public to enjoy the outdoors so close to a major urban area. Marine
reserves have been promoted by park officials for several years,
despite opposition from numerous stakeholders, the Florida Fish and
Wildlife Conservation Commission, and the park's own Fishery Management
Plan working group. All of these groups recognize that there are
management challenges facing the park, but excluding the public from
accessing public resources is not the appropriate way to address these
challenges. Ignoring the input from stakeholders and partners, the
National Park Service seems intent on going forward with closing off
over 10,000 acres of public waters to fishing despite the lack of
scientific evidence to support the decision.
National Ocean Policy = More Fishing Closures?
Efforts such as in California and Biscayne National Park to
prohibit the public from accessing public resources for reasons other
than sound fisheries management directly conflict with the public trust
doctrine in which our nation's natural resources are held and create
further mistrust of the government. The proliferation of proposals to
permanently close fishing areas to the public has made the recreational
fishing community increasingly sensitive to potential threats to our
sport. Rather than providing an opportunity to expand and promote
fishing access to our oceans, anglers cannot help but view the National
Ocean Policy--particularly CMSP--as another effort to place areas off-
limits to the public based on the planning documents released to date.
An overarching concern of our community with the National Ocean
Policy, particularly as it pertains to CMSP, is the treatment of
recreational uses as one of numerous ocean ``sectors'' for which
planning activities will occur, along with oil, gas, mining, commercial
fishing, transportation and defense. We firmly believe that there is a
distinct and inherent difference between recreational and industrial
ocean uses, and their respective impact on the ocean environment.
Members of the public who choose to spend leisure time on the water
fishing with family and friends are fundamentally different than
commercial activities in which a public resource is extracted for the
purpose of selling that resource. Recreational use of our public waters
is not only compatible with, but in fact is essential to, sound
conservation and natural resource stewardship, as highlighted by
contributions made to successful conservation programs such as the
Sport Fish Restoration Program. Because recreational angling and
boating contribute directly to funding the conservation of our nation's
aquatic resources and provide other significant social and economic
benefits, these activities warrant special and elevated consideration
as a national priority as the National Ocean Policy moves forward.
It is worth noting that within this Administration's other major
resource conservation initiative--America's Great Outdoors- increasing
and improving recreational access is one of the primary goals. Because
of its elevated support for outdoor recreation access and opportunities
on public lands and waters, our community has strongly embraced and
promoted the America's Great Outdoors initiative, whereas the National
Ocean Policy, particularly as it pertains to CMSP, has created
considerable concern.
While efforts have been made by the Obama Administration to
alleviate some of these concerns, such as listing a national goal of
CMSP to ``provide for and maintain public access to the ocean, coasts,
and Great Lakes,'' other language in the recently released draft
Implementation Plan and previous National Ocean Policy documents fuels
the concern that areas of our nation's coastal and marine waters will
ultimately be closed to recreational fishing under the CMSP process.
For example, the National Objective 2 of CMSP, to ``(r)educe cumulative
impacts on environmentally sensitive resources and habitats in ocean,
coastal, and Great Lakes waters,'' can be interpreted to mean
identifying areas in which certain oceans uses, such as recreational
fishing, will ultimately be restricted.
It is a long-standing policy of the federal government to allow
sportsmen public access to public resources for recreational purposes
consistent with sound conservation. This policy is reflected in the
principles of our wildlife refuges, national forests and national
parks. As such, the National Ocean Policy should recognize the unique
contributions of the recreational fishing community to the economy and
conservation and re-affirm President Clinton's Executive Order on
recreational fishing (#12962), as amended by President Bush via E.O.
13474 which requires that recreational fishing be managed as a
sustainable activity in federal waters.
In several states that have undertaken coastal and marine spatial
planning processes, the existing authority of fisheries management
agencies was expressed from the outset. This went a long way towards
alleviating concerns that fishing activities would be unnecessarily
restricted by CMSP planning bodies which have little, if any, expertise
in fisheries management. For example, the enabling legislation for the
Massachusetts CMSP process, the Massachusetts Oceans Act of 2008,
states:
``In the geographic area subject to the ocean management plan,
as described in paragraph (b), commercial and recreational
fishing shall be allowable uses, subject to the exclusive
jurisdiction of the division of marine fisheries. Any component
of a plan which regulates commercial or recreational fishing
shall be developed, promulgated and enforced by the division of
marine fisheries pursuant to its authority under chapter 130.''
The Massachusetts act also includes the following language further
reinforcing the authority of the state marine fisheries agency:
``The director of marine fisheries, subject to the approval of
the marine fisheries advisory commission, shall have sole
authority for the opening and closing of areas within the
geographic area described in subsection (b) for the taking of
any and all types of fish.''
In Washington State, recent legislation to initiate a CMSP process,
the Washington Marine Waters Planning and Management Law of 2010,
includes similar language providing the state fish and wildlife agency
with the sole authority to manage fishing activities as part of the
CMSP process:
``If the director of the department of fish and wildlife
determines that a fisheries management element is appropriate
for inclusion in the marine management plan, this element may
include the incorporation of existing management plans and
procedures and standards for consideration in adopting and
revising fisheries management plans in cooperation with the
appropriate federal agencies and tribal governments.''
In the cases of Massachusetts, Washington and Rhode Island--which
also undertook a CMSP process--recreational fishing and boating
received priority consideration in the development of the plans.
Importantly, these processes also required that potential impacts on
recreational fishing and boating be taken into account and minimized
while planning for other future or existing activities.
To date, the recreational fishing community's concerns that CMSP
will ultimately lead to unnecessary closes of marine waters have
largely gone unheard, despite numerous letters and discussions with
Administration officials. It is our hope the Obama Administration will
review the enabling legislation for the state CMSP processes described
above and incorporate similar language reserving management of
recreational fishing under existing authorities into the Final
Implementation Plan and all future CMSP guiding documents. In
Massachusetts, Rhode Island and Washington, elevating the status of the
recreational fishing and boating community in CMSP was critical to
generating support from our community and ultimately leading to a
successful outcome.
Thank you for your time, and I'm happy to answer any questions the
committee may have.
______
Dr. Fleming. Thank you, Mr. Zurn.
And next up we have Mr. Gibson.
Sir, you have five minutes.
STATEMENT OF H. TERRY GIBSON, PRINCIPLE,
NORTH SWELL MEDIA, LLC
Mr. Gibson. Good morning, Chairman Fleming, Ranking Member
Sablan, and members of the Subcommittee. Thank you for this
opportunity to testify today. My name is Terry Gibson, and I am
a small business owner, entrepreneur, and third-generation
Floridian. I am an avid diver, angler, and hunter. I own a
charter fishing service in Jensen Beach. I also do work for the
State of Florida promoting boating and fishing, and I am the
co-owner and editor of a recreational fishing publication.
I grew up learning to love the outdoors from my parents and
grandparents, and spent years hearing their stories of how the
South Atlantic's coastal and ocean environment had changed over
the preceding 100 years. Each time I go fishing, I don't just
see the fisheries of today. I also remember the abundant
fisheries of the past, and I envision their future.
The health of our ocean and coasts underpins the prosperity
of many thousands of small businesses like my own that benefit
in numerous ways from recreational fishing and responsible
commercial fishing. But our current system for managing those
valuable ocean resources is a labyrinth of jurisdictional
boundaries that causes State and Federal agencies to work at
cross purposes. Fragmented management regimes have consistently
led to irrational management choices, unnecessarily destructive
development, and frustrated stakeholders, like me.
Our Nation needs to reform ocean management and create a
coordinated regional system that breaks down silos between
different agencies. Our Nation needs the National Ocean Policy.
The National Ocean Policy ensures that activity on or impacting
our ocean is managed in a smart and coordinated way. It
anticipates conflicts before they explode, and makes the best
possible choice, balancing competing interests in an
intelligent way.
Under our current system, laws designed to protect folks
like me are not being faithfully executed. I have, along with
friends and allies, spent inordinate sums of money and time on
lawyers and experts to protect the places where I fish. As a
fisherman and small business owner, I shouldn't have to go to
court just to try and force the government to consider a
project's impacts on my livelihood and quality of life. I
should not have to hire lawyers, just to have my voice heard.
That is why the administration's National Ocean Policy is
so important. It will finally place the management decisions
closer to those who are impacted. It will finally create an
integrated, multi-sector, regionally, based ocean management
system, and a forum where all stakeholders can be heard. And,
despite the claims of others on this panel here today, it will
finally protect fishermen and small business owners like me.
Unfortunately, what you will hear from many of the more
vocal voices on the fringe of the fishing community is fear,
confusion, and an unwillingness to engage in a proactive
process. In reality, the National Ocean Policy does not grant
any agency additional powers to close fisheries, to create
marine reserves, or any other type of protected area. What it
does do is guarantee the fishing community will have a seat at
the table for any ocean and coastal management decisions by
other agencies or industries that might impact our way of life.
One of my biggest concerns is that other industries with
more resources to devote to high-priced lobbyists and insider
games will squeeze fishermen out of productive areas and damage
essential fish habitat. Such undesirable outcomes are far more
likely to become realities under our current chaotic system
than with the implementation of the National Ocean Policy. The
challenge as industrial uses of the ocean expand is ensuring
that the conservation gains we have achieved under the
Magnuson-Stevens Act and the Fishery Management Council System
are not further undermined by uncoordinated decision-making.
Wind energy, wave energy, aquaculture, they are all coming. And
we must have a plan to develop and site these industries
responsibly.
The National Ocean Policy was the product of a long,
thorough, bipartisan process that will continue to evolve, and
needs input from all of us. But it must not become a political
whipping boy for people who don't understand or choose to
ignore the critical void it is seeking to fill. Fishermen have
made sacrifices to achieve the progress we are seeing on the
water. Science-based catch limits under the Magnuson-Stevens
Act are working. We are already seeing our investment in
sustainable fishing pay dividends. The list of species rebuilt
and rebuilding continues to grow. And landings are increasing,
as populations do.
Now we must turn to other major threats, habitat loss,
declining water quality, acidification, and unplanned offshore
energy development. National Ocean Policy gives fishermen, for
the first time, the tools they need to make a difference in
combating these threats. Fishery management councils will be
given a seat on new regional planning bodies, so we can have
our say.
Mr. Chairman, I want our kids and grandkids to grow up
enjoying abundant ocean fisheries, just as my parents and
grandparents did. With the National Ocean Policy taking shape,
I have one more reason to be optimistic that they will.
Thank you for your time.
[The prepared statement of Mr. Gibson follows:]
Statement of Terry Gibson, Principle, North Swell Media, LLC
Chairman Fleming, Ranking Member Sablan and members of the
subcommittee, thank you for the opportunity to testify before you
today. My name is Terry Gibson and I am a small-business owner,
entrepreneur, and a third-generation Floridian. Some of my earliest
memories are of enjoying Florida's great outdoors, and I spent much of
my youth hunting and fishing while living in Florida and Alaska. I
remain an avid angler, diver and hunter, and I own a charter fishing
service in Jensen Beach where I reside. I also spend time working as a
contractor, including work for the state of Florida to promote boating
and fishing. I am co-owner and editor of a new tablet-based
recreational fishing publication, Fly & Light Tackle Angler.
I grew up learning to love the outdoors from my parents and
grandparents, and spent years hearing their stories of how the South
Atlantic's coastal and ocean environment had changed over the preceding
100 years. Each time I go fishing, I don't just see the fisheries of
today; I also remember the abundant fisheries of the past--and envision
their future.
Though I have published in the scientific literature and
contributed to a number of reports on serious conservation issues
affecting sportsmen, my primary professional background is in
journalism for outdoor enthusiasts. I have served as the East Coast
Editor of Surfer Magazine, Editor of Saltwater Fly Fishing magazine, as
an editor at Florida Sportsman/Shallow Water Angler, and as the Fishing
Editor of Outdoor Life. I have covered conservation issues in more than
20 countries and most coastal states. And I have done some combination
of fishing, hunting, diving and surfing in at least 10 countries and 40
states, often as a paid professional.
In a time when most in the outdoor media industry see little reason
for optimism, my business partner, Capt. Mike Conner and I see a
landscape teeming with opportunities for those willing to embrace
evolving media formats and do the hard work to ensure that our natural
resources are managed sustainably. The health of our ocean and coasts
underpins the prosperity of many thousands of small coastal businesses
that benefit in numerous ways from recreational fishing and responsible
commercial fishing.
Need for Better Management
Growing up in South Florida, I have watched countless state and
federal agencies work at cross-purposes. Fragmented management regimes
have consistently led to irrational management choices, unnecessarily
destructive development, and frustrated stakeholders. Time after time
through the years, I have thought to myself, ``There has to be a better
way.'' Indeed, there is a better way: The National Ocean Policy.
The National Ocean Policy (NOP) addresses problems that have been
raised for years by experts in science and policy and people like me
who have been hurt by the impacts of a tangled web of bureaucracy. The
current system is a labyrinth of jurisdictional boundaries, where legal
challenges are often the only tool to settle conflicts between user
groups. Our nation needs to reform ocean management and create a
coordinated, regional system that breaks down silos between different
agencies. The NOP ensures that activity on or impacting our ocean is
managed in a smart and coordinated way. It's an effort to move beyond
the failed system of the past and create a better future for fishermen
and countless others who enjoy and rely upon the ocean. It's an
important step forward that our nation's fishermen should embrace.
I speak from experience when I say that without a new management
framework, which the National Ocean Policy has an opportunity to
provide, fishermen are--and increasingly will be--at a severe
disadvantage when it comes to head-to-head conflict with other
interests and industries. I don't want to perpetuate a system in which
different stakeholders settle conflicts through costly and damaging
legal and political battles. I want a system that anticipates those
conflicts before they explode, and makes the best possible choice,
balancing competing interests in an intelligent way.
I am a veteran of the kinds of conflicts inherent in the old
system. Several times, together with friends and groups with shared
interests in protecting Essential Fish Habitat, I have had to file
lawsuits to try and stop development and construction projects from
destroying the most productive places where we love to fish. For
example, one of these suits prevented a massive dredge-and-fill
project, advertised as ``beach nourishment,'' from destroying the beach
at Florida's Lake Worth Pier and surrounding beaches and reefs, where
thousands of people go every week to fish, surf, dive and more. I had
seen the consequences of these massive dredge-and-fill operations
before: miles of shoreline of chronically filthy water, buried reefs,
and fake mud beaches that the turtles and birds hate. That's the kind
of no-fishing zone I'm dead against--the type that renders valuable
places unproductive and unattractive for wildlife and people.
Access is a null issue in places where fishing is no longer
worthwhile. I could spend all week telling you about the countless
honey holes I've seen destroyed since my childhood--because government
agencies worked against each other, treating fish, fishermen and fish
habitat as little more than an afterthought. As a fisherman and small-
business owner, I shouldn't have to go to court just to try and force
the government to consider a project's impacts on my livelihood and
quality of life. I should not have to hire lawyers just to have my
voice heard.
That is why the administration's National Ocean Policy--in large
part an effort to implement key recommendations of the bipartisan,
Bush-appointed U.S. Commission on Ocean Policy--is so important. It
will finally place the management decisions closer to those who are
impacted. It will finally create an integrated, multi-sector,
regionally based ocean management system and a forum where all
stakeholders can be heard. And despite the claims of others on this
panel here today, it will finally protect fishermen and small-business
owners like me.
National Ocean Policy
Unfortunately what you will hear from many of the more vocal voices
on the fringe of the fishing community is fear, confusion and an
unwillingness to engage in a proactive process.
In reality, the NOP does not grant any agency additional powers to
close fisheries, or to create marine reserves or any other type of
protected area. When more than one-third of federal waters in the Gulf
of Mexico were closed to fishing, it was not because of the NOP. The
closure occurred because of a conflict between two key ocean uses in
the Gulf: offshore oil drilling and fishing. It occurred because of an
absence of agency oversight--and because of an inadequate initial
response due to the lack of coordinated planning between state and
federal agencies.
The NOP gives fishermen an equal, if not greater, voice alongside
other ocean industries and users. In its absence, what are we to
expect? Take, as just one example, the administration's ``Smart from
the Start'' initiative, unveiled by Interior Secretary Ken Salazar in
November 2010. The initiative seeks to speed offshore wind energy
development off the Atlantic Coast. How can we ensure that alternative
energy projects are sited, and sited in a way that doesn't negatively
impact fishing opportunities from Maine to Florida? I ask my friends
who love to fish: do you want to have to fight for your voice to be
heard for each and every new initiative like this one, or do you want
to have a single forum for all ocean issues where you are guaranteed a
seat at the table?
Regional planning bodies (RPB) under the NOP are a venue that can
give fishermen a voice. Fishery Management Councils, as representatives
of the fishing industry, will be given a seat on these bodies under the
administration's proposals. I am optimistic that the process will help
new stakeholders find places to operate profitably and sustainably in
U.S. waters without displacing traditional commercial and recreational
uses. Wind energy, wave energy, aquaculture--they are all coming. And
we must have a plan to develop and site these industries responsibly.
If we don't, chaos will ensue and fishermen will lose out.
Real Threats to Fishing
I hope that the NOP and the RPBs it creates will work aggressively
toward addressing the biggest threat to fishing--loss of functional
access to productive waters due to pollution and habitat degradation.
One of my biggest concerns is that other industries, with more
resources to devote to high-priced lobbyists and insider games, will
squeeze fishermen out of productive areas and damage essential
habitats--as it has pained me to watch so many times. Such undesirable
outcomes are far more likely to become realities under our current
chaotic system than with the implementation of the NOP. The challenge
as industrial uses of the ocean expand--and expand they will--is
ensuring that conservation gains achieved under the Magnuson-Stevens
Act (MSA) and the Fishery Management Council system are not further
undermined by uncoordinated decision-making by other federal agencies.
As fishermen we fought hard to ensure that we were given a seat at
the table and a vote on the RPBs and we have been heard. The RPBs will
give us a place besides the courtrooms to stick up for ourselves, to
learn more about the challenges of implementing new offshore
development such as wind energy, and to work collaboratively with these
new stakeholders to ensure that ocean uses are safely maximized for the
nation's benefit.
Conclusion
The National Ocean Policy was the product of a long, thorough, bi-
partisan process. It will continue to evolve and needs the input of us
all; but it must not become a political whipping boy for people who
don't understand--or choose to ignore--the critical void it is seeking
to fill. The National Ocean Policy, the important coordinating
structures it establishes, and critical tools like Marine Spatial
Planning, are too important for our fishing future to reflexively
vilify. Many fishermen like me see these tools as essential if our
long-term fishing opportunities are to be sustained.
Fishermen have made sacrifices to achieve the progress we are
seeing on the water. The NOP works to ensure that the progress towards
sustainable fisheries achieved through implementation of science-based
catch limits is not undermined by an activity that the fishery
management councils have no control over. The National Ocean Policy
creates the appropriate regional forums and processes for conservation
benefits to be guaranteed.
As American fishermen, we are proud of the great strides we've made
toward ending and preventing overfishing. MSA is clearly working--the
list of species rebuilt or rebuilding continues to grow, and landings
will increase as the populations do. Now we must work within the
regional planning body process to ensure that we stem the tide of empty
hooks because of other major fisheries problems, including habitat
loss, declining water quality and unplanned offshore energy
development. Fishermen around the country stand ready once again to
roll up their sleeves and engage in the difficult work necessary to
ensure our kids will be able to enjoy abundant fisheries. In so doing,
we look forward to striving for harmony with ocean neighbors old and
new through the National Ocean Council process.
______
Dr. Fleming. I thank you, Mr. Gibson.
Next, Mr. Mannina.
You have five minutes, sir.
STATEMENT OF GEORGE J. MANNINA, JR.,
PARTNER, NOSSAMAN, LLC
Mr. Mannina. Thank you, Mr. Chairman. It is a privilege to
be here today before you with this Subcommittee, for whom I
served as a counsel for many, many years. But, unlike my
colleagues on this panel, I am not going to talk about whether
the National Ocean Policy is a good or a bad idea. That is for
you gentlemen to decide. What I am going to suggest to you is
that it violates the Separation of Powers clause of the U.S.
Constitution.
Allow me to begin by defining what the National Ocean
Policy does. There are 23 agencies that will develop ocean
conservation plans that focus, among other things, on ecosystem
management and marine spatial plans. Executive Order 13547
directs Federal agencies and departments to implement each and
every existing statute, so as to ensure there is no adverse
impact to the oceans. Assuring no adverse impact is
accomplished by implementing the National Ocean Policy.
Now, consider for a moment, in your position as
legislators, the range of activities likely to be affected by
the National Ocean Policy. Among those activities include:
highway construction and operation, because highway runoff
flows into waters which flow into the oceans; industrial
discharges into navigable waters; municipal wastewater
discharges into navigable waters; air emissions--think ocean
warming and ocean acidification; agriculture--think fertilizer
and pesticide runoff; OCS leasing.
And finally, consider a statute with which this
Subcommittee works regularly, the Magnuson-Stevens Act, and
consider these two examples. Assume for a moment that a
Regional Fishery Management Council approves a fishery
management plan that opens an area to commercial or
recreational fishing. Assume that the National Ocean Policy,
through its marine spatial planning, closes that area. Who
wins? The answer is the National Ocean Policy. And the FMP, the
fishery management plan, is disapproved.
Consider another example. I am currently involved in some
litigation in which the plaintiff is arguing that harvest
levels should be reduced, and more fish set aside for forage
for ecosystem management. If the result of the National Ocean
Policy is the direction that some percentage of forage fish be
set aside for ecosystem management, it will directly affect
harvest levels by directing the contents of FMPs.
And finally, consider that the Magnuson-Stevens Act
established fishery management councils to develop the contents
of FMPs. That statutory process could be displaced by the
National Ocean Policy.
The reality is that the Executive Order and the National
Ocean Policy will create new legal requirements applicable to
the Magnuson-Stevens Act and to all public laws. The question
is: What is the legal authority for that?
The Constitution vests the authority to legislate with
Congress. Because the Executive Order is legislative in effect,
the Constitution provides no basis for the Executive Order.
That said, the Executive Branch can properly issue rules
interpreting and implementing legislation. However, that
authority is not applicable here for at least three reasons.
First, the power of the Executive Branch to issue rules
implementing a statute comes from a congressional delegation of
authority. Here there is no delegation of authority. Here there
is no statute authorizing the Executive Branch to create a new
oceans policy and to superimpose that on all other public laws.
Second, when Congress delegates legislative authority to
the Executive Branch to promulgate rules, it does so pursuant
to the Administrative Procedure Act, which allows such rules to
be subject to judicial challenge. Here, the Executive Order
states there is no judicial review. For example, if a marine
spatial plan closes an area to fishing, there is no judicial
review.
And third, the National Ocean Policy is not an
interpretation of individual statutes, but is, in effect, the
enactment of a new super-statute. You may search the Magnuson-
Stevens Act in vain for authorization to establish an ocean
zoning program for fisheries. This is not the implementation of
a statute; this is the enactment of a new statute.
And for those reasons, I believe that implementation of the
National Ocean Policy will likely result in court decisions,
perhaps in the Supreme Court, regarding the constitutionality
of the Executive Order and the National Ocean Policy.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Mannina follows:]
Statement of George J. Mannina, Jr.
Mr. Chairman and distinguished members of this Subcommittee, I am
pleased to be here today. I was privileged to serve as Counsel to this
Subcommittee for eight years prior to becoming the Chief Counsel and
Staff Director for the Republican members of the House Merchant Marine
and Fisheries Committee before it was merged into the Committee on
Natural Resources. During my years with the Subcommittee and Committee,
and since that time, I have worked on numerous ocean policy issues. I
am testifying today in my individual capacity and not on behalf of any
client or of my firm, Nossaman LLP, although one of our associates,
Audrey Huang, has worked with me on this testimony.
Executive Order 13547 and the Final Recommendations of the Interagency
Ocean Policy Task Force
The Final Recommendations of the Interagency Ocean Policy Task
Force dated July 19, 2010 (``Task Force Report'') establish a National
Ocean Council of at least 23 members. Task Force Report at 20. The
National Ocean Council is awarded the overall responsibility for
developing a national ocean conservation program, including specific
action plans. Id. at 20-21. The priority ocean conservation objectives
include: (1) ecosystem protection and restoration, (2) enhancing ocean
water quality by implementing sustainable practices on land, and (3)
coastal and marine spatial plans. Id. at 6, 28.
The Task Force Report provides that National Ocean Council members,
which include the Secretary of the Interior, the Secretary of Commerce,
and the Administrator of the Environmental Protection Agency, will
``adhere'' to the conservation plan developed by the National Ocean
Council, including the coastal and marine spatial plans. Id. at 29-31,
65, 77. The Task Force Report then establishes a mechanism to ``ensure
execution'' of the National Ocean Plan developed by the National Ocean
Council and to ``ensure implementation'' of the coastal and marine
spatial plans. Id. at 21.
Executive Order 13547, signed by President Obama on July 19, 2010
``adopts the recommendations of the Interagency Ocean Policy Task Force
... and directs executive agencies to implement those recommendations
....'' Executive Order 13547 at Sec. 1. The Executive Order states its
purpose is to ``ensure'' that federal agencies implement the National
Ocean Plan ``to the extent consistent with applicable law.'' Id. at
Sec. 5(b). Lest there be any doubt, the Executive Order directs that
all federal departments and agencies ``shall, to the fullest extent
consistent with applicable law'' implement the National Ocean Plan. Id.
at Sec. 6(a).
The Impact of the National Ocean Plan on Existing Laws
Assume an ocean resource management plan is properly developed
pursuant to an existing Public Law. Assume further that the plan is
presented to an agency decisionmaker for final approval. If the ocean
resource management plan conflicts with the National Ocean Policy and
Plan, is the agency decisionmaker required to disapprove the duly
prepared resource management plan?
Consider, for example, the Magnuson-Stevens Fishery Conservation
and Management Act (``Magnuson-Stevens Act''), 16 U.S.C. Sec. 1801, et
seq., which establishes eight Regional Fishery Management Councils
(``Councils'') charged with the responsibility of developing fishery
management plans (``FMPs'') in their areas of geographic
responsibility. The process by which a Council develops an FMP is one
full of analyses by expert Council and agency staff. There are multiple
opportunities for public testimony and input. The process can consume
years. The Magnuson-Stevens Act provides that after this process is
complete and an FMP is approved by a Council, the FMP must be reviewed
by the Secretary of Commerce. The Secretary of Commerce must approve
the FMP if it is consistent with ten National Standards set forth in
the Magnuson-Stevens Act and with applicable law. 16 U.S.C. Sec. 1854.
Let us assume for a moment that a Council has completed its FMP
development process and the resulting FMP allows commercial and/or
recreational fishing in a specific ocean area. Let us also assume the
National Ocean Plan has been completed and it closes the same area to
all fishing. The question is what does the Secretary do when reviewing
the Council-approved FMP.
I asked that precise question of representatives of the Council on
Environmental Quality. In fact, I asked the question three times. The
first two were greeted with variations of the response that developing
the National Ocean Plan will be a multi-year process with full public
input. My third attempt to secure an answer stipulated there had been a
full public process and the final ocean plan closed the area to
commercial and recreational fishing. In that fact pattern, would the
National Ocean Plan trump the Council's decision and require the
Secretary of Commerce to disapprove the FMP? The final answer was yes.
The National Ocean Plan would require the Secretary to disapprove the
Council approved FMP because the FMP was inconsistent with the National
Ocean Plan developed by the National Ocean Council.
Allow me to use another example. I am currently involved in a
lawsuit defending a fishery management plan amendment against
allegations that the Secretary of Commerce, acting through the National
Marine Fisheries Service (``NMFS''), approved harvest levels that
failed to leave an adequate amount of forage fish in the ocean. The
Plaintiff cites with approval studies that, according to the Plaintiff,
argue for the position that ``fishery managers set catch limits that
leave most, if not all, of the forage species' virgin biomass (the
level of biomass that would exist without any fishing) in the ecosystem
to ... maintain ecosystem health.'' A virgin biomass equates to no
fishing, particularly when virtually every species is forage to another
species.
Assume arguendo that the final National Ocean Plan requires a fixed
percentage of forage fish to be set aside for purposes of proper
ecosystem management given that ecosystem management is one of the
priority objectives of the National Ocean Plan. According to Executive
Order 13547 and the Task Force Report, the National Ocean Plan would
then govern how the Secretary of Commerce and NMFS exercise discretion
in determining if a Council approved FMP meets the requirements of the
Magnuson-Stevens Act. In short, the National Ocean Plan could regulate
harvest levels by directing how the Secretary of Commerce and NMFS are
to implement their approval authority under the Magnuson-Stevens Act.
In fact, it would appear that under this interpretation of the
Executive Order, the Order would be considered the equivalent of other
applicable law with which FMPs must be consistent.
In both examples above, it does not matter if the National Ocean
Plan is viewed as a required interpretation of the Magnuson-Stevens Act
National Standards or as applicable law with which the Council approved
FMP must be consistent. The result is the same. The National Ocean
Plan, once fully implemented, effectively amends the Magnuson-Stevens
Act by establishing new standards that govern what is or is not
acceptable in an FMP.
There is another aspect of this issue that is equally important.
Congress, through the Magnuson-Stevens Act, created a process by which
FMPs are developed and fishery conservation and management decisions
are made. That process is through the Regional Fishery Management
Councils and the legislative history of the Magnuson-Stevens Act is
clear that the Councils have primary authority. The net effect of the
National Ocean Plan could well be to amend or repeal that statutory
Council-driven process, replacing it with the National Ocean Policy
process and requirements.
The legal issue associated with all of these examples is that the
Constitution vests the power to enact and to amend laws with the
Congress. Advocates of the National Ocean Policy, no matter how well
meaning, cannot by Executive Order or policy statement amend a Public
Law to create new statutory standards. That is a power reserved to the
Congress by Article 1, Sec. 1 of the U.S. Constitution which provides:
``All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives.''
The Executive Order and The National Ocean Policy Report Present a
Serious Constitutional Issue
As one legal scholar noted: ``An Executive Order is a Presidential
directive that the government and/or private parties act in a
prescribed way. Although such orders come cloaked with the prestige and
aura of that high office, unless some constitutional or statutory
authority supports the directive, it has no legal effect.'' Morton
Rosenberg, Presidential Control of Agency Rulemaking: An Analysis Of
Constitutional Issues That May Be Raised By Executive Order 12,291, 23
Ariz. Law Review 1199 (1981), at 1205, citing Youngstown Sheet and Tube
Co. v. Sawyer, 343 U.S. 579, 585 (1952). In that case, the Supreme
Court also stated:
In the framework of our Constitution, the President's power to
see that the laws are faithfully executed refutes the idea that
he is to be a lawmaker. The Constitution limits his functions
in the lawmaking process to the recommending of laws he things
wise and the vetoing of laws he thinks bad.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
In a subsequent case, the Supreme Court returned to the separation
of powers issue stating:
[I]t remains a basic principle of our constitutional scheme
that one branch of the Government may not intrude upon the
central prerogatives of another. [Citations omitted.] ... [T]he
separation-of-powers doctrine requires that a branch not impair
another in the performance of its duties.... Article I's
precise rules of representation ... make Congress the branch
most capable of responsible and deliberative lawmaking.
[Citations omitted.] Ill suited to that task [is] the
Presidency, designed for the prompt and faithful execution of
the laws and its own legitimate powers....
Loving v. United States, 517 U.S. 748, 575-58 (1996).
Executive Order 13547 begins by stating ``By the authority vested
in me as President by the Constitution ... of the United States of
America, it is hereby ordered....'' Executive Order 13547. As noted
above, the Constitution does not vest the legislative power with the
Executive Branch. The authority for the Executive Branch to effectively
amend the Public Laws of the United States cannot be found in the
Constitution. The Constitution does not provide the necessary legal
authority for the Executive Order or the National Ocean Policy and
Plan.
That said, it is unquestionably correct that the Executive Branch
has the power to implement and, in doing so, to interpret, statutes.
However, the source of that interpretive authority, the authority to
issue regulations implementing statutes, is found in the Congressional
delegation of its legislative authority. Executive Order 13547 cites
the laws of the United States as the second basis for its legal
standing. The Executive Order states: ``By the power vested in me as
President by ... the laws of the United States of America, it is hereby
ordered ....'' Id. However, this legal theory provides no more support
for Executive Order 13547 than the U.S. Constitution for at least three
reasons.
First, the authority given to the National Ocean Council by the
Executive Order to create and to then implement an ocean policy with
which every Public Law must be consistent is not found in any
Congressionally passed statute.
Second, when legislative authority is delegated to the Executive
Branch by the Congress, it is often done with language providing for
judicial review of agency decisions. Where such review is not
explicitly provided, it is imputed pursuant to the provisions of the
Administrative Procedure Act, 5 U.S.C. Sec. Sec. 702, 704, and 706
(``APA''). Pursuant to the APA, agency rulemaking can be challenged as
inconsistent with a duly enacted statute. However, Executive Order
13547 states that actions taken pursuant to the Executive Order,
actions taken to implement the National Ocean Policy, are not subject
to judicial review. Executive Order 13547 at Sec. 9(d). In other words,
disapproval by the Secretary of Commerce of a Council-prepared FMP
because of its inconsistency with the National Ocean Policy is claimed
to be beyond judicial review. This, in fact, violates the laws of the
United States embodied in the APA.
Third, the National Ocean Policy is not an interpretation of the
provisions of existing statutes. It is, in fact, the creation of a new
law and regulatory regime. I recognize Executive Order 13547 states the
National Ocean Policy is to be implemented ``to the extent consistent
with applicable law.'' Id. at Sec. 5(b). However, this so-called
``savings clause'' does not save the Executive Order. The reason, as
already noted, is that the National Ocean Policy will create a new
legal requirement with which all existing Public Laws must conform. It
is not the interpretation of existing authority. It is the de facto
enactment of a new Public Law.
I have already discussed how the National Ocean Policy can operate
to replace the Council based FMP development process established in the
Magnuson-Stevens Act. However, the Magnuson-Stevens Act is not the only
statute that may be impacted. A few examples suggest the breadth of the
National Ocean Policy. The Outer Continental Shelf Lands Act
(``OCSLA'') authorizes the Secretary of the Interior to lease outer
continental shelf submerged lands for oil and gas development. 43
U.S.C. Sec. Sec. 1337 and 1344. Pursuant to that law, the Secretary of
the Interior identifies areas that are to be leased. Because submerged
lands would be subject to the coastal and marine spatial plans
developed under the National Ocean Policy, these spatial plans will
govern and control the areas available for leasing. Congress has by
statute established standards and a process by which areas subject to
leasing shall be identified. Congress did not establish as a standard
that such leases are to be specified in accordance with the National
Ocean Policy and its coastal and marine spatial plans. The practical
effect of the National Ocean Policy is to amend the OCSLA by grafting
onto it a new standard with which the Secretary of the Interior is to
comply.
As the members of this Subcommittee know, in the recent past,
Congress grappled with the issue of clean air legislation. Those
discussions did not result in the passage of new legislation. However,
under the rubric of preventing or otherwise regulating ocean warming
and/or ocean acidification, the National Ocean Policy could set
standards and policies that bind federal agencies to promulgate new air
emission standards or requirements that are asserted to be beyond
judicial review pursuant to the Executive Order.
Similarly, persons who apply for discharge permits or dredge and
fill permits under Sections 402 and 404 of the Clean Water Act could
find themselves subject to a new set of standards contained in the
National Ocean Policy. Section 404, for example, provides that permits
are issued only after a finding that permit issuance will not have an
unacceptable adverse impact on navigable waters. 33 U.S.C.
Sec. 1344(c). The National Ocean Policy could define what constitutes
such an impact given that navigable waters ultimately flow into the
oceans. Similarly, section 402 discharge permits cannot be issued if
they adversely affect the quality of navigable waters. 33 U.S.C.
Sec. 1342(a). Again, the National Ocean Policy is, in practical effect,
a statutory overlay controlling the definition of an adverse effect.
Within the next few weeks, the House of Representatives will be
considering a surface transportation bill. Although there is
disagreement about what should be in that legislation, Members on both
sides of the aisle agree that transportation infrastructure is
important and maintaining that infrastructure will create jobs. Since
highways generate runoff that often flows into navigable waters that
flow to oceans, it would not be unexpected that the new National Ocean
Policy could create the equivalent of new statutory standards with
which all surface transportation projects must be consistent.
Advocates of the National Ocean Policy will assert that the
Executive Branch could promulgate regulations under its existing
delegated authority to do some or all of these things. That may or may
not be the case, but Executive Order 13547 does not take that approach.
Instead, it creates, via the National Ocean Policy, a new set of
requirements with which existing statutes are to be consistent, and
then places these new standards beyond judicial review. This
effectively constitutes the enactment of new legislation that violates
the separation of powers set forth in the U.S. Constitution.
Moreover, when Congress has delegated legislative authority, it has
done so to specific departments and agencies. Executive Order 13547,
and its National Ocean Policy, effectively amend each of these statutes
by changing the Congressional delegation of authority from an
individual department or agency to a collective of at least 23
departments and agencies.
Conclusion
Mr. Chairman, the National Ocean Policy put forward by the
Administration will inevitably lead to constitutional challenges that
may require the attention of the Supreme Court. I am not saying the
National Ocean Policy is a good or a bad idea. That is for you to
decide. What I am saying is that there are very serious questions about
whether the Administration can do it without your passing legislation
giving them the authority. Without such legislation, it is quite
possible that Executive Order 13547 and its National Ocean Policy will
be found to violate the separation of powers set forth in the U.S.
Constitution.
______
Dr. Fleming. Thank you, Mr. Mannina.
And next up, Mr. LeBlanc.
STATEMENT OF JUSTIN LeBLANC,
FEDERAL REPRESENTATIVE, UNITED CATCHER BOATS
Mr. LeBlanc. Thank you. Thank you all for the opportunity
to testify this morning regarding the administration's efforts
to establish a new ocean zoning regulatory scheme in the
absence of either congressional authorization or congressional
appropriation.
United Catcher Boats is a trade association of
approximately 70 vessels that participate in some of the
largest, most valuable, and best-managed fisheries in the
United States, including North Pacific pollock, Alaska crab,
and Pacific whiting. Joining UCB today are nearly a dozen other
commercial fishing organizations. Together, these organizations
represent approximately $2 billion in annual value to the U.S.
economy, and tens of thousands of jobs.
We have been involved in the debate and discussion
concerning National Ocean Policy since the very beginning, when
the two competing national ocean commissions were established.
Throughout the process, our concerns have been repeatedly
expressed and repeatedly ignored. Our fundamental concern is
that we have a robust, stakeholder-driven, science-based public
process for the management of U.S. fisheries that should not be
overwritten by some new Federal bureaucracy that sucks money
away from activities and spends it on process.
The regional planning bodies proposed by the NOP are
comprised entirely of Federal, State, and Tribal officials,
with no role for any of the varied ocean users. Proponents
argue that the RPBs are simply regional planning and
coordination bodies, with no regulatory authority. They are
almost correct when they claim that RPBs are not regulatory.
Because they are, in fact, supra-regulatory. There are numerous
examples in my written testimony of where the NOP will have
regulatory impacts. One of the most significant is on page 65
of the Interagency Ocean Policy Task Force's final
recommendations.
And I will paraphrase some of this; it is a lengthy
paragraph: ``Agencies would incorporate components of the
Coastal Marine Spacial Plan into their respective regulation to
the extent possible. Adherence with Coastal Marine Spacial
Plans would be achieved through Federal and State agencies and
Tribal authorities. CMS plan signatories would review processes
and, where legal constraints are identified, would seek to
remedy those constraints, by working with the National Ocean
Council to evaluate whether a legislative solution or changes
to regulations are necessary or appropriate.''
Some have argued that placing a representative of the
Regional Fishery Management Councils on the relevant RPBs would
address our concern for input into the process. But the
administration is insisting that such a council representative
only be a Federal, State, or Tribal government official. Under
the NOP implementation plan, this simply sounds like a
convenient person for the regional planning bodies to give
their marching orders to. No thank you.
One of the most fascinating aspects of the NOP
implementation plan is its failure to address who wins the
inevitable user conflicts that will arise under the new ocean
zoning plans. It is given that under such an ocean zoning plan,
non-compatible users will want access to the same piece of
ocean. A wave energy company may want to place its array in the
middle of prime fishing grounds, for example. Nothing in the
NOP clarifies who wins this conflict, and by what metric.
Is it historical use of the area? The number of jobs that
that industry creates? The ecosystem or habitat impacts that
that activity has? The value to the economy, national security?
None of these metrics are identified in the NOP, as to who
would win those inevitable conflicts. When questioned during
public sessions, the administration has stated that science
would decide those questions. But this isn't a scientific
question. It is a social, economic, and even a cultural one.
Some have argued that our concerns about National Ocean
Policy are overblown, as several states are already
implementing CMSP within their waters. I am not familiar with
all of these efforts, but do know some about the Washington
State effort.
First and foremost, Washington State's plan is not
underway, because in statute, implementation is subject to the
availability of Federal grants or private donations.
Second, the Washington State law recognizes existing uses,
and notes the substantial economic benefits of such uses,
including commercial fishing. It also protects and encourages
working waterfronts, and requires that any management plan that
has a negative impact on commercial or recreational fishing
minimize that impact. If the NOP read like the Washington State
law, I am sure the administration would face far less
opposition to its efforts.
Finally, how is all of this being paid for? The President's
budget contains no line item for National Ocean Policy
implementation. When asked how NOAA Fisheries would pay for its
NOP activities, fisheries head Sam Rauch indicated that it
would be supported from within existing budget lines and
appropriations. So a National Ocean Policy that calls for
improved science and management will take money away from these
very activities in order to support a new layer of bureaucratic
processes whereby government officials alone decide how to zone
our oceans.
Given that the NOP has no congressional authorization, no
direct congressional appropriations, no stakeholder input, and
will impose a massive new ocean-zoning scheme, we recommend
that Congress bar any Federal funds from supporting this
effort. Thank you.
[The prepared statement of Mr. LeBlanc follows:]
Statement of Justin LeBlanc, Federal Representative, United Catcher
Boats, on behalf of United Catcher Boats & Alaska Bering Sea Crabbers;
Alaska Crab Coalition; Alaska Groundfish Databank; At-Sea Processors
Association; Crab Group of Independent Harvesters; Pacific Seafood
Processors Association; Petersburg Vessel Owners Association; Southeast
Alaska Fishermen's Alliance; United Fishermen of Alaska; and West Coast
Seafood Processors Association
INTRODUCTION
Chairman Fleming, Ranking Member Sablan, and Members of the
Subcommittee; thank you for the opportunity to testify today regarding
the implications of the Administration's new National Ocean Policy
Implementation Plan on commercial fishermen and fisheries. My name is
Justin LeBlanc. I am the federal government relations representative
for United Catcher Boats (UCB).
UCB is a trade association of 70 commercial fishing vessels that
participate in the Alaskan pollock, Alaskan crab, and West Coast
groundfish fisheries. Our vessels are called catcher boats because that
is all we do--we catch fish and deliver our catch ``in the round'' to
processing facilities. We do not process the fish, even minimally.
Joining UCB in presenting these comments to the Subcommittee are. .
Together, these commercial fishing and processing organizations
represent numerous companies which participate in the federally managed
fisheries in the Exclusive Economic Zone off Alaska, Washington, Oregon
and California, along with businesses that rely on these companies.
These fisheries comprise over 55% of the annual commercial seafood
harvest of the United States. The yearly direct value is over two
billion dollars, with hundreds of millions of dollars of secondary
economic effects resulting from our expenditures in other sectors such
as shipyards, marine equipment, seafood packaging, insurance and
finance, and transportation providers.
In addition, on November 7, 2011, the Seafood Coalition submitted a
letter to the Full House Resources Committee (and attached to this
testimony) expressing the need for Congressional action barring the
Administration from continuing to divert appropriations from authorized
programs to implement an ill-conceived NOP that is not authorized by
Congress and that threatens fishing industry jobs.
The Seafood Coalition is a broad national coalition that includes
commercial fishing interests, seafood processors, and coastal
communities. This broad-based group, which includes members from every
region of the U.S., accounts for about 85 percent of the seafood landed
annually in the U.S. The Seafood Coalition believes the Administration
has turned a deaf ear to the seafood industry's concerns in
implementing NOP, choosing instead to push ahead with a new ``top
down'' bureaucracy empowered to develop plans and to restrict ocean
uses through regulations issued under an array of oceans-related
statutes.
The commercial fishing industry has been involved in this issue for
well over a decade since the ocean policy commissions began preparing
their reports. We have offered our views each step of the way since
then. When the recommendations of the oceans commissions were put into
legislative form by various environmental groups (H.R. 4900/108th
Congress, H.R. 2939/109th Congress, H.R. 21 in the 110th and 111th
Congresses) we provided comments and testimony along with many other
ocean user groups. After Congress repeatedly refused to enact this
legislation, the approach of the environmental community changed and
H.R. 21 reappeared in the form of the Administration's National Ocean
Policy (NOP). The NOP was given life through the President's
proclamation of Executive Order 13547 on July 19, 2010. We now are
being offered another opportunity to provide comments on the NOP
Implementation Plan, the Administration's effort to impose a new
regulatory program for the oceans and Great Lakes.
Although we are again submitting comments, we are disappointed that
despite the importance of our industry to the nation's economy, and
despite our familiarity with ocean ecosystems, our comments at each
step in this process have been ignored. We continue to present what we
think is an obvious case: the NOP's Coastal Marine Spatial Planning/
Regional Planning Body structure is an unauthorized new regulatory
program aimed at imposing a new ocean governance structure which
conflicts with successful Congressionally authorized programs such as
regional fishery management. Nevertheless, we remain committed to
participating in the process and we hope that the Administration will
eventually make this as transparent and collaborative a process as has
been claimed all along.
THE IMPLEMENTATION PLAN
The Draft Implementation plan proclaims four overarching themes. We
will briefly address each.
Adopt Ecosystem-Based Management
This has been a goal of resource managers for many years. It is a
goal that we support. But, as any oceanographer will tell you, it is
also a goal that cannot be fully achieved without vast amounts of
additional scientific data that will take decades to collect and
interpret, even assuming that funding is available. In the meantime,
resource managers must use the best available data to manage our ocean
resources. Progress has definitely been made in moving from single
species management to using ecosystem principles. In fact, the fishery
management process used by the North Pacific Fishery Management Council
incorporates consideration of ecosystem effects for almost all
decisions they make and the Pacific Fishery Management Council is well
along on adopting a similar process. Nevertheless, we are a long way
from being able to claim that we understand any ecosystem well enough
to be able to simultaneously manage all the species which interact
within a given region. This is especially true given that current law
requires specific actions--rebuilding overfished stocks, protecting
endangered or threatened species, protecting marine mammals--which
elevate certain species to a higher plane than others within an
ecosystem.
Obtain, Advance, Use, and Share the Best Science and Data
As we just pointed out, everyone supports collecting and using the
best possible science. But doing so requires large amounts of money and
time. We hope that the federal budget will soon allow a greater
allocation of funds toward this goal. But, in the meantime, scientists
and resource managers will have to do the best job they can with the
data that is available. To the extent that funding is not available to
provide precise, accurate and current data which allows the best
management of ocean resources, we need to be careful not to set goals
which are technically unobtainable.
Promote Efficiency and Collaboration
Once again, we are all in favor of greater cooperation and
coordination among the agencies which regulate ocean activities.
Interestingly, when discussing this theme the document states, ``This
draft Implementation Plan creates no new regulations, however, within
existing authorities, legal and regulatory barriers to full
implementation of the National Ocean Policy will be identified and
permitting processes will be streamlined.'' This statement is as close
as we have seen to an admission that there is no specific statutory
authority for this program. It also suggests that the Administration
intends to impose new regulations where necessary in order to eliminate
the ``regulatory barriers'' they identify, and to seek new legislation
that would provide the statutory authority. Strengthen Regional Efforts
The final theme is to strengthen regional, state and local
ecosystem conservation efforts. We doubt anyone would be opposed to
this goal, and as long as the resources are available it is something
we would support. At the same time, we suggest that since federal funds
are scarce, the Administration should focus on supporting existing
organizations with a record of success, such as the regional fishery
management councils and the federal scientists on whom they rely.
Fiscal Responsibility
There is a discussion of Fiscal Responsibility on page 5 of the
document. It says that the National Ocean Council will issue an annual
memorandum on how federal resources should be allocated. We think it
would be more useful if a detailed NOP implementation budget were
developed and presented to Congress. Given federal budget constraints,
it is almost certain that Congress will continue to refuse funding for
the NOP initiative unless such a budget plan is offered. Providing a
budget proposal that is subject to public scrutiny and debate will also
increase transparency of the process. The document itself even admits
that carrying out the Implementation Plan is, ``contingent on the
availability of funds''. This is one of the reasons we have argued
since the beginning of this process that if NOP is to be pursued it
should involve small steps and pilot projects. We fear that if various
agencies attempt to implement this massive program within their current
budgets, large amounts of money will be diverted from ongoing,
Congressionally mandated programs. An example of the threat posed by
such a diversion of funds is the possibility that certain fishery stock
assessment surveys done in the North Pacific could switch from being
done annually to being done bi-annually. Lowering the quality of the
data available to fishery managers would threaten economic activity
worth over one billion dollars annually. As an affected industry, we
and our employees are not ready to see our livelihoods threatened
should implementation of the National Ocean Policy result in funds
being siphoned off from existing NOAA fishery programs.
Treatment of Commercial Fisheries
As we said earlier, the commercial fishing industry has now
participated in this process for over a decade, through the oceans
commissions, H.R. 21, its predecessor legislation, and now NOP. Our
goal all along has been to preserve and strengthen the system of
regional, stakeholder-driven fishery management that has worked so well
in our part of the country. Even after all our attempts to participate,
the Draft Implementation Plan ignores the points we have made and
proposes the creation of a new ocean resource management system that
appears to have few limits. Page 9 of the report states that
``fisheries can be better managed'' and that NOP ``will improve future
management decisions.'' Our question is: Decisions made by whom? We
suggest that either the Regional Fishery Management Council process be
exempted from this entire program or that the NOP/CMSP/RPB process be
revised so that it genuinely becomes the voluntary planning process we
have been told it was intended to be.
The Nine Priority Objectives
The bulk of the Draft Implementation Plan describes specific
actions the Administration intends to take to achieve the nine priority
objectives. There are numerous milestones and deadlines for each. We
will not take the time to go through the scores of actions and
milestones laid out in the plan. However, we will highlight some which
we believe are overly ambitious/costly or which seem to lead to the
inescapable conclusion that NOP is more of a regulatory program as
opposed to the transparent, collegial planning process we keep hearing
about.
Overly Ambitious Action Proposals (target date):
Page 19--Explore ``the 95-percent of the ocean that
remains poorly known.'' (2014)
Page 23--Enhance ocean education so that ``a highly
competent workforce is available for U.S. employers.'' (2014-
2017)
Page 25--Assess the environmental knowledge of middle
school students. (2017)
Page 27--Develop and deploy within ten years a fleet
of unmanned air, sea surface and underwater research systems.
(2022)
Page 32--Map the entire EEZ and continental shelf.
(2017)
Page 50--Address ``planned and unplanned activities
impacting coral reef ecosystems.'' (2012)
Page 56--``Integrate relevant socioeconomic
monitoring information with ecosystem monitoring information to
understand changes in coupled human-natural systems in selected
areas.'' (2013) [Perhaps this would be a more appropriate task
for academia?]
Page 57-58--Conduct research to assess direct and
indirect impacts of climate change and ocean acidification on
coastal communities, including estimations of mean sea-level
rise, impacts on jobs, and effects on marine species. (2013-
2015)
Page 65--Provide funding to private landowners to
help them reduce nutrient and sediment runoff. (2012)
Page 67--Reduce air pollutants (sulfur, nitrogen,
mercury) to the oceans and Great Lakes. (2012) Control storm-
water runoff from the federal highway system. (2015)
Page 74--``Protect 2 million acres of lands
identified as high conservation priorities'' (including 700,000
acres of forest) (2015)
Evidence that NOP is a Regulatory Program
Page 4--``CMSP is an important tool for implementing
EBM.'' It will lead to a more ``certain decision-making process
for managing activities in the ocean''
Page 6--``The NOC expects to complete and approve the
final Implementation Plan in the Spring of 2012. Federal
agencies will then implement its initial set of actions.''
Page 11--``Existing regulatory requirements and
programs that were developed based on a fundamentally different
model may need to be modified''
Page 12--``an EBM approach supports adaptive,
iterative management.''
Page 12--``various responses or actions may become
necessary given the limits of existing regulatory or statutory
authority.''
Page 13--Find ``opportunities to incorporate EBM
principles into Federal laws, regulations, and policies''
Page 15--``Establish a process for adaptive resource
management''
Page 39--``Review the interpretation and, as
necessary, propose to strengthen content and/or application of
Federal legislation. . ...to incorporate and better support
climate change adaptation efforts.''
Page 51-52--The Plan proposes to identify ``important
marine areas for management or protection''. This includes use
of ``national marine sanctuaries, national estuary programs,
and national marine monuments.'' ``Priority species'' would be
protected using ``Essential Fish Habitat (EFH) Provisions
including Habitat Areas of Particular Concern (HAPC)''. This
passage provides some of the strongest and clearest language
that RPB's, comprised principally of federal officials with no
expertise in fisheries management, will develop CMS Plans that
usurp the responsibilities of regional fishery management
councils. Contrary to the stated intent of the NOP, the Plan
creates confusion and ambiguity on EFH and HAPC
responsibilities, as well as other areas of fishery management
authorities, where none now exists.
Pages 85--92--This section discusses Coastal and
Marine Spatial Planning and the role of the Regional Planning
Bodies. It lays out a detailed process for creation of the nine
Regional Planning Bodies, implementation of CMSP, creation of
CMS Plans for each region, and the presentation of these plans
to the National Ocean Council for certification. This is to be
accomplished by 2019.
One of the stated goals of CMSP is empowering coastal communities
through a public planning process to make decisions about activities in
their regions. This sounds fine until you realize that the membership
of the RPB's consists entirely of government officials, dominated by
Federal representatives. The document states that ``Members will be of
an appropriate level of responsibility within their respective
governing body to be able to make decisions and commitments throughout
the process.'' This sounds less like planning and more like regulation
to us. The system is then removed even further from public/local
control by the fact that once the RPB's have developed their CMS Plans,
these plans are submitted to the National Ocean Council (a group of 27
Federal officials). This Federal entity then decides if the plan is
worthy of ``certification''. Our presumption is that the next step
would be implementation of the plan through new or modified federal
regulations. Otherwise, what would be the point of the exercise? We
make this statement despite the following discussion that appears on
Page 109 of the document (the ``Summary of Public Comments'' section):
Public Comment: ``The Administration should clarify that it
will not be the purpose of the Regional Planning Bodies to
override the duties of regional fishery management councils.''
Response: ``The Executive Order expressly provides that Federal
agencies will implement NOC-certified CMS Plans consistent with
existing statutory authority, including the Magnuson-Stevens
Act. Regional planning bodies will be established to develop
these plans. They do not have any legal authority or mandate
that would override the statutory or regulatory duties of any
existing entity, including Regional Fishery Management
Councils.''
We understand that the Regional Planning Bodies do not have
independent legal/regulatory authority. The point is that the CMS Plans
they create then go to the NOC for approval and implementation by every
agency throughout the federal government. This process is clearly
stated in the ``Final Recommendations of the Interagency Ocean Policy
Task Force'' (July 19, 2010. . .page 65)--
``Agencies would incorporate components of the CMS Plan into
their respective regulations to the extent possible. Adherence
with CMSP would be achieved through Federal and State agencies
and tribal authorities incorporating CMS Plans into their pre-
planning, planning, and permitting processes, to the extent
consistent with existing laws and regulations. The CMS Plan
signatories would periodically review these processes and where
legal constraints are identified, would seek to remedy these
constraints, including by working with the NOC to evaluate
whether a legislative solution or changes to regulations are
necessary or appropriate.''
This clearly states that CMS Plans will be implemented government-
wide, and that if new regulations are required to achieve the goals of
the NOC, they will be pursued. We are not comforted by the boilerplate
language about the process being ``consistent with existing laws and
regulations''. If an agency implements the NOP/CMSP plans in a way
which, in our view, conflicts with an existing law or regulation, our
only option would be to go to court. As the Administration is aware,
few entities have the resources to file court challenges on a regular
basis. All ocean user groups, not just the seafood industry, would have
little chance of preventing the imposition of CMS Plan regulations.
In the end, this is the most critical point. Despite repeated
rhetoric from the Administration that this is designed to be a bottom-
up, stakeholder driven process with no regulatory authority, a plain
reading of the Implementation Plan reveals a federally-controlled,
closed-door effort that will compel 27 different federal agencies to
conform their regulations to comply with a regional ocean plan. Some
have suggested adding an representative of the Regional Fishery
Management Councils to each of the Regional Planning Bodies. The
Administration has said yes, provided they are a federal, state, or
tribal member of such. But suggesting the Councils need or deserve
representation on the Regional Planning Bodies simply reinforces the
fact that the RPBs will have regulatory authority over the Councils. If
not, then why would the RFMCs need some sort of representation.
Further, by specifying that an RFMC representative must be a federal,
state, or tribal member, the Administration is further clarifying that
the RPBs do not provide for true stakeholder participation.
WHO WINS?
Nowhere in the NOP Implementation Plan does it clarify how user
conflicts in the ocean will be resolved. If we embark upon a regional
ocean zoning effort, inevitably multiple user groups will want to
`claim' a particular area of the ocean, be it for fisheries, mineral
resource extraction, renewable energy, recreational activity, or marine
reserves. By what metric will a particular claim be awarded? Historical
use of the area? Number of jobs created? Amount of money generated for
the economy? National Security? Food Security? Least environmental
impact?
When asked this question at a CMSP workshop last year,
Administration officials responded that ``science would decide''. But
such a question is not wholly a scientific one. It is a social,
economic, and even cultural decision that is far more nuanced. 27
federal bureaucrats deciding who wins and where among multiple ocean
users does not provide for the stakeholder and public participation
necessary to make such difficult decisions. The failure of the NOP
Implementation Plan to specifically address this inevitable dynamic is
incredibly naive.
STATE EFFORTS
Some have argued that our concerns regarding the NOP Implementation
Plan are overblown as several states are already implementing programs
in state waters that are meeting with success. While I am not familiar
with all of these efforts, I am familiar with the Coastal and Marine
Spatial Planning law of Washington state. Enacted in March 2010 but not
yet implemented due to lack of funds (see below), the Washington state
CMSP law provides many protections for commercial fishing and other
user groups that are lacking in the NOP:
Section 1 (3)(h)(i) Establish an ocean stewardship
policy that takes into account the existing natural, social,
cultural, historic, and economic uses;
(i) Recognize that commercial, tribal, and recreational
fisheries, and shellfish aquaculture are an integral part of
our state's culture and contribute substantial economic
benefits;
The Washington State measure recognizes existing uses and notes the
``substantial'' economic benefits of such uses, including commercial
fishing. About the only references to commercial fishing in the federal
NOP relate to overfishing. In fact, given that we have now placed all
federal fisheries under Annual Catch Limits as required by the
Magnuson-Stevens Act and are rebuilding overfished fisheries, the NOP
references seem outdated.
Section 6. (2)(f) Protects and encourages working
waterfronts and supports the infrastructure necessary to
sustain marine industry, commercial shipping, shellfish
aquaculture, and other water-dependent uses;
Again, Washington State's statute emphasizes the importance of
sustaining commercial activities by ocean users, including investing to
support these uses. The overall tone of the Administration's NOP is one
of restricting current users.
(5) If the director of the department of fish and
wildlife determines that a fisheries management element is
appropriate for inclusion in the marine management plan, this
element may include the incorporation of existing management
plans and procedures and standards for consideration in
adopting and revising fisheries management plans in cooperation
with the appropriate federal agencies and tribal governments.
Paragraph 5 gives deference to the fishery management authority to
determine whether to incorporate fisheries management elements into
marine management plans. Fishery management responsibility is clearly
expected to remain with the current decision making body. The NOP could
result in fishery management councils developing management plans and
RPBs developing CMS Plan components (say, establishing MPAs over 40% of
an ecosystem as some advocate) that should remain solely under the
purview of the relevant fishery management council. This is our concern
about creating a second fishery management process--in this case one
without fishery management expertise and without fishery participants
involved in the decision making process.
(6) Any provision of the marine management plan that
does not have as its primary purpose the management of
commercial or recreational fishing but that has an impact on
this fishing must minimize the negative impacts on the fishing.
The team must accord substantial weight to recommendations from
the director of the department of fish and wildlife for plan
revisions to minimize the negative impacts.
Paragraph 6 is a complement to paragraph 5. It cannot stand alone.
While paragraph 5 preserves the current fishery management decision
making process, paragraph 6 makes clear that any action that affects
fishing but whose primary purpose is not to manage fishing must
minimize the negative impacts on fishing. There is no such
consideration in the NOP for effects on fishing from CMS Plan elements.
(7) The marine management plan must recognize and
value existing uses. All actions taken to implement this
section must be consistent with section 8 of this act.
The language stating that a Washington State CMS Plan must
``recognize and value existing uses'' is very helpful and supportive of
current users. There is no such guidance in the federal NOP policy.
If the NOP paralleled the Washington state law, I suspect you would
face far less opposition to the NOP from commercial fishing
organizations nationwide as well as other current ocean user groups.
THE COST
In addition to the substantive concerns outlined above, we are also
deeply concerned about how this overreaching and expansive effort will
be paid for. The President's proposed FY13 Budget contains no budget
for implementation of this new National Ocean Policy. Instead, the
agencies charged with participating in implementation have stated that
their efforts will be funded through their existing budgets and
appropriated dollars because ``implementation of the NOP is consistent
with [their] existing statutory obligations and appropriations.'' In
other words, the Administration intends to funnel money away from
congressionally-authorized and funded activities such as fisheries
stock assessments and ecosystem research to support a new layer of
federal bureaucracy. Ironically, funds will be diverted from the very
activities that the NOP itself says need to be increased and improved!
The Administration is implementing NOP with neither congressional
authority nor with congressionally-approved funding. Given the absence
of an NOP implementation line item we believe Congress should include
in each relevant appropriations bill (covering all 27 agencies
identified by the NOP) a prohibition on the use of funds within that
bill for the implementation of the NOP.
CONCLUSION
As we said earlier, we would prefer that the Regional Fishery
Management Council process be exempted from this program. If not, then
we request that the final NOP Implementation Plan categorically state
that nothing in the plan will lead to either new or modified Federal
regulations. If this is a collegial, voluntary planning process, as we
have repeatedly been told, we are happy to participate. If this is a
new Federal bureaucracy whose aim is to regulate virtually all ocean
activities, then we prefer to opt out until such time as Congress has
provided specific authorization for such a program. Thank you for the
opportunity to testify today.
The Seafood Coalition
November 7, 2011
The Honorable Doc Hastings
Chairman, House Natural Resources Committee
U.S. House of Representatives
1324 Longworth House Office Building
Washington, D.C. 20515
Dear Chairman Hastings:
The Seafood Coalition is writing to express its appreciation to you
for holding two recent hearings on the Administration's National Ocean
Policy (``NOP''), which includes the controversial ocean zoning
component of Coastal and Marine Spatial Planning (``CMSP''). The
testimony received at the Natural Resources Committee hearings
highlights the need for Congressional action barring the Administration
from continuing to divert appropriations from authorized programs to
implement an ill-conceived NOP that is not authorized by Congress and
that threatens fishing industry jobs.
The Seafood Coalition is a broad national coalition that includes
commercial fishing interests, seafood processors, and coastal
communities. This broad-based group, which includes members from every
region of the U.S., accounts for about 85 percent of the seafood landed
annually in the U.S. We are a diverse group, but united in our
opposition to the Administration's NOP. The Administration has turned a
deaf ear to the seafood industry's concerns in implementing NOP,
choosing instead to push ahead with a new ``top down'' bureaucracy
empowered to develop plans and to restrict ocean uses through
regulations issued under an array of oceans-related statutes.
The concerns raised by the Seafood Coalition have been articulated
previously by this organization. In May, 2008, the Coalition wrote to
then-Natural Resources Committee Chairman Rahall requesting changes in
H.R. 21, an ocean policy bill introduced in multiple Congresses and
almost indistinguishable in its provisions from the NOP. The bill won
little support over the past decade, and accordingly, made very little
headway. This history suggests both that advocates of the NOP recognize
that Congressional authorization is necessary and that they remain
unwilling to work with the oceans community to develop a measured and
economically sound policy.
We highlight for Congress three specific concerns with the NOP
initiative that can be addressed by prohibiting federal spending on
this unauthorized program:
1. The NOP creates a federal ocean zoning regime that will
likely result in substantial new regulations and restrictions
on ocean users. The Final Recommendations of the Interagency
Ocean Policy Task Force report, which is incorporated by
reference into the NOP Executive Order 13547, establishes nine
regional planning bodies (``RPBs'') composed of government
entities and charged with developing ocean zoning plans.
According to the Task Force recommendations, ``The plans would
be adaptive to allow for modification and addition of new
actions based on new information or changing conditions. Their
effective implementation would also require clear and easily
understood requirements and regulations. . .that include
enforcement as a critical component.''
2. The NOP creates a new ``top down'' bureaucracy that
supersedes the ``bottom up'' regional fishery management
council system and other effective management systems.
As noted above, the RPBs will be composed primarily of federal
agency officials with some participation by state officials and tribal
representatives. This contrasts with regional fishery management
councils and the bodies responsible for other management programs
established by the Magnuson-Stevens Act. The regional fishery
management councils and other ``bottom up'' management programs which
develop plans for managing fishery resources in federally managed
waters, are composed largely of private citizens appointed by the
Commerce Secretary. The NOP empowers the RPBs to manage activities in
federal waters, including fishing activities, creating a confusing and
duplicative fishery management system and usurping the jurisdiction of
existing regional fishery management councils and other effective
management bodies.
3. The federal government is currently diverting money
authorized for other purposes, including funds that are better
used for fishery survey research and monitoring programs, to
create the new NOP regulatory program. Without fully funded
fish stock assessment programs, fishery managers must be
precautionary and set lower harvest limits given less
information will be known about the size of fish populations.
Diverting money from important science functions of NOAA
Fisheries leads directly to job losses and lower incomes for
fishermen and processing workers and adverse economic impacts
for already struggling coastal communities.
For these reasons, and more, the Seafood Coalition asks Congress to
bar further diversion of fund from authorized programs to implement the
NOP. Thank you for considering these views.
Sincerely,
Nils Stolpe for the Seafood Coalition
Seafood Coalition member organizations
Alaska Bering Sea Crabbers
Alliance of Communities for Sustainable Fisheries
American Fishermen's Research Foundation
At Sea Processors Association
Blue Water Fishermen's Association
Coos Bay Trawlers Association
Deep Sea Fishermen's Union
Directed Sustainable Fisheries
Fisheries Survival Fund
Fishermen's Association of Moss Landing
Garden State Seafood Association
Groundfish Forum
Monkfish Defense Fund
North Carolina
Fishermen's Association
Omega Protein, Inc.
Oregon Trawl Commission
Organized Fishermen of Florida
Pacific Coast Seafood Processors
Pacific Whiting Conservation Cooperative
Southeastern Fisheries Association
Southeastern Fisheries Association/East Coast Fisheries Section
Southern Offshore Fishermen's Association
United Catcher Boats
Washington Dungeness Crab Fishermen's Association
Washington Trollers Association
West Coast Seafood Processors Association
Western Fishboat Owners Association
______
Dr. Fleming. Thank you, Mr. LeBlanc. At this point we will
begin Member questions of the witnesses. To allow all Members
to participate and to ensure we can hear from all of our
witnesses today, Members are limited to five minutes for their
questions. However, if Members have additional questions, we
can have more than one round of questioning. I now recognize
myself for five minutes.
Mr. Zurn, I am from the Federal Government, and I am here
to help you. Does that make you feel good?
Mr. Zurn. Yes, sir. That does make me feel good.
[Laughter.]
Dr. Fleming. If I were you, I would be very concerned. You
know, I am saying this tongue-in-cheek, but we could go through
many examples of where well-intentioned Federal Government
agencies, Congress, and even the White House have been very
well intentioned, and made things a lot worse. And I gather
from your testimony, and from some of the others here today,
that there is a whole list of concerns about the impact of this
National Ocean Policy, which sprang up all of a sudden from the
Oval Office without any involvement of Congress, whatsoever.
So, what do you see as the most egregious, the most
significant negative impact from the implementation of this?
Mr. Zurn. Well, sir, as I mentioned, we just concluded a
several-year process in the State of California where we were--
the recreational fishing community was pretty much excluded and
ignored in much of the decision-making process. And as I
pointed out, in other States we were actually, by statute,
included, involved, and had a seat at the table. My concern is
in this process so far, even though through numerous attempts
to be involved, to have input, and to be--to have a seat at the
table, we have pretty much been--largely been ignored.
Our goal is that--we understand that this very much looks
like another layer of bureaucracy. Our goal is that, with
recreational fishing, that our impact on the environment is far
less than some of the other things that are included in this.
And we just feel that it is going to very much continue to
limit the recreational fisherman's ability to have access----
Dr. Fleming. Sure. So, really, those who are affected the
most under this policy, in your view, would have little or no
say into that, I think is--you are saying is the most
significant part of this.
Mr. Zurn. Yes, sir.
Dr. Fleming. And I certainly understand that. Mr. Mannina,
I am very interested in your views. You say that, in essence,
this is unconstitutional. This is the Executive Branch reaching
out of its scope and taking up perhaps the Legislative Branch's
authority. And I tend to agree with you on that.
One of my concerns--and I think you outlined this very
clearly--is what happens on a farm in Idaho, in theory, would
be involved in this National Ocean Policy. So people who think
that this is only about oceans are going to be sadly mistaken
when they see this, if it is ever implemented.
So, if it has such broad affect over the Nation, the
rhetorical question here--and I am going to get to my real
question--is then, why is it that all of that power be vested
in one person, in essence, which is the President of the United
States?
But let's go a step further. We now have government having
completely taken over our financial industry. The government
has now completely taken over the health care industry. And we,
Congress, in the process, have abdicated much of our powers to
the Executive Branch. We have thousands of people writing
regulations that we in Congress have no idea what they are
going to look like very soon. Even the Independent Payment
Advisory Board, where you have 15 unelected individuals, will
be making the major decisions about health care.
So my question to you, sir, on a constitutional basis, is
this not really just, again, a conglomeration, if you will, a
formation of all the power into one office, and certainly one
person, making Congress irrelevant? And trust me, I have a good
job back home I am happy to go to. But if I am up here, I want
to exercise the powers for my constituents that they sent me up
here for. I would love to have your reaction to that.
Mr. Mannina. Thank you, Mr. Chairman. I do believe that the
Executive Order and the National Ocean Policy are beyond the
Presidential authorities vested in either the Constitution or
by statute enacted by the Members of this Congress.
If this policy is to have legal force and effect, I believe
it is up to you, the Members of Congress, to enact legislation
to give the administration the power. If you do not do so, I do
not think they will have that power. And I must say, as a
practicing lawyer, if you do not, I expect that those of us who
do this will enjoy many, many years and billable hours
litigating this.
Dr. Fleming. So you are saying this is the enrich lawyers
policy.
Mr. Mannina. And there is nothing wrong with that.
[Laughter.]
Dr. Fleming. I well understand that. Well, again, I would
just--it seems to me, just in closing in my questions, that
this is again another attempt--and we go back to the energy
policy, with cap and trade--where the President, being unable
to do through Congress what he would like to do, and those who
maybe support him, attempt to do a run-around Congress. And,
unfortunately, that is not the way the Framers of the
Constitution intended this.
So, with that, I yield to my good friend, Mr. Sablan,
Ranking Member, for five minutes.
Mr. Sablan. Well, thank you. Thank you very much, Mr.
Chairman.
Mr. Gibson, good morning. Mr. Gibson, could you tell us
under what authorities is the administration conducting marine
spatial planning?
Mr. Gibson. Well, I understand that the President has the
authority to do this through Section 3 of Article 2 of the U.S.
Constitution. That is what my lawyers told me.
Mr. Sablan. So you are relying on lawyers, and there is
nothing wrong with that. I think there is one right next to
you.
Mr. Gibson. I know.
Mr. Sablan. So we have also heard a lot today about how
government regulation is threatening fishermen and our
fisheries. What do you consider to be the most significant
threats today that would cause fishermen to pull up empty
hooks?
Mr. Gibson. Well, we are doing a great job rebuilding
fisheries, but we are doing a terrible job managing the habitat
that they depend upon and the water that they swim in.
Declining habitat, declining water quality, those are certainly
the two greatest threats to recreational fishing.
Mr. Sablan. Yes, I come from an area where I grew up where
I could expect that four dinners a week would be fish. One fish
today, one fish. But there are also people in my island who--in
my place, where a certain family is, for some reason, does not
catch a certain fish. So there is always--other families would
have access to the fish, and they shared, they do this by
sharing. And so, that is--I am not sure if it is conservation,
but it is a great program, actually.
So, let me ask--the staff want me to ask here. In your
testimony, Mr. Gibson, you said that wave energy, agriculture,
they are all coming, and we must have a plan to develop and
site this industry responsibly. If we don't, chaos will ensue.
If we don't, chaos will ensue, and fishermen will lose out. Can
you give us an example, provide us an example from your own
experience--that would be great--where the lack of
comprehensive ocean planning caused fishermen to be left behind
in the initial decision-making process?
Mr. Gibson. Yes, sir. A few years ago the town of Palm
Beach wanted to dredge and fill about--I think about five miles
of beach where I grew up. They never asked us if that was OK
with us. This is where I catch bait, this is where I surf,
fish, this is where--I mean, the reef support, all the--they
are the nursery habitats for the things we catch offshore. They
were going to dredge within 200 feet of a coral reef, a
Federally protected essential fish habitat. And we had to sue
them. And it took, I think, over five years of fighting them to
stop this project. We were never given a chance to voice our
concerns, and we were bullied for voicing them.
And I will give you one more pending example. You know,
North Carolina and South Carolina are very, very aggressively
pursing development of wind energy offshore, and we welcome,
you know, this new clean energy. It is just we just want to
make sure it is put in the right place, not where we are
fishing.
Mr. Sablan. And so, see, planning works, because when I was
growing up, dinner was four times a week is fish. If I choose
today, I can have dinner three times a week fish, of course,
you know, growing population and the increasing fish
population. But the planning is there. And the regulation,
unwritten and not Federalized, is actually--we regulate
ourselves among ourselves.
So, Mr. Gibson, how--you earlier said you had to hire
lawyers. And how long were you involved in lawsuits to prevent
massive dredge and projects that--at Florida's--can investing
in a National Ocean Policy actually save taxpayers millions of
dollars? And if so, how?
Mr. Gibson. Well, for example, the issue of dredging--it is
one of the themes that perpetually emerges as a threat. And
usually for these so-called beach nourishment projects, they
are just nothing but perverse subsidies that I hope some of
these gentlemen will address. What we need is a comprehensive
sediment management plan for the entire region, instead of,
``Oh, we got a hot spot here, dredge here. Oops, that was a
coral reef we just trashed.'' ``Oh, that was where that guy's
favorite spot to shoot groupers,'' or whatever.
You know, if we can take--instead of having to deal with
these projects project-by-project, issue-by-issue, slogging
through the quagmire of Federal agencies and permitting, if we
can come up with a plan that addresses these proactively, these
recurring issues proactively--and I believe we can through the
National Ocean Policy process and the regional planning
bodies--it will save everybody a ton of time and money, from
the government down to a little guy like me.
Mr. Sablan. Yes. And actually, just a comment, a short
commentary to Mr. LeBlanc, because I was--earlier I said this
Laolao Bay. We are actually spending money to do something to
prevent runoffs into Laolao Bay, because it is such a beautiful
ocean area of corals and fish, and we want to protect that from
runoff. So spending money is--on protecting the oceans is
actually very good policy, sir. And thank you. My time is up,
Mr. Chairman.
Dr. Fleming. The gentleman's time is up. Next is Mr.
Southerland for five minutes.
Mr. Southerland. Thank you, Mr. Chairman. You know, I have
been amazed, since I have been here for 15 months. In the 15
months that I have been here, we have seen the President, in
his involvement in the Libyan action, which was a violation, I
believe, of the 1973 War Powers Act. We have seen a violation
of the Constitution in recess appointments, when we weren't
[sic] in recess.
The--we have now learned that the health care bill, the
violation of Rights of Consciousness--the health care bill,
which is the signature piece of legislation that the President
doesn't ever want to talk about any more, certainly when he has
a joint session of Congress doesn't even mention, and because
its constitutionality is so subject to questioning, it will
probably be the most viewed and followed Supreme Court case in
our Nation's history coming up here very, very shortly.
I am amazed that, as you stated out, sir, that, you know,
the very shaky ground that the Oceans Policy is on--I mean we
are seeing a pattern here. And I think if it walks like a duck
and it quacks like a duck, it is a duck. I think the American
people can understand that. I don't think that is complicated.
I think that is common sense.
It is interesting, Mr. Gibson--and I am from Florida, as
well--your trust in--that government can, since it has created
this chaos that we find ourselves in, the waste of money in and
of itself--and I could really tell all I need to tell about you
or anybody else in this room by just looking at your check
registry. I can see the priorities in your life. I can see what
matters to you. I can see how benevolent you are. I can see how
much money you spend on your hobbies. I can tell everything
about you. And when I look at the United States Government's
check registry, it is pathetic.
And so, I am curious. How does a common sense individual
like yourself--you seem to be--place so much trust in a Federal
Government whose check registry and whose record on, in the
last three years, on constitutionality, or the question
thereof, how do you place such trust in such a monstrosity that
has grown out of control?
Mr. Gibson. I have to, because the existing system----
Mr. Southerland. And why do you have to?
Mr. Gibson. Because the existing system is killing me.
Mr. Southerland. You understand the existing system is what
you are wanting to add to? That is like saying bad is hurting
me, so therefore I am just going to trust more bad.
Mr. Gibson. The point of the National Ocean Policy is to
streamline and harmonize----
Mr. Southerland. No, no. No, sir. No, sir, it is not. It is
not. Because at no point in time in the National Ocean Policy
does it do away with any other institutions that are currently
creating your headache.
Mr. Gibson. It brings them out in the light of day.
Mr. Southerland. Sir, they can come out in the light of day
now. We don't need the Federal Government to tell us, ``Turn on
a light.'' We don't need the National Ocean Policy or the
Federal Government to tell two States they can communicate and
talk. That is common sense.
Please tell me you don't have to trust the Federal
Government to tell you and another fishing buddy that you can
talk. And if it applies to individuals, it applies to States.
We do not need the Federal Government, and we cannot trust the
Federal Government to do the very basic things in our life that
God gave us the common sense to do. And I am blown away, blown
away, in your trust of the Federal Government.
Mr. Gibson. This is a managerial directive from the
administration to make these agencies talk.
Mr. Southerland. To make these management--OK. We are never
going to agree on that, because I can tell you this. When
Lubchenco comes before this committee and she states that the
oceans policy creates no more regulations, none--in a
congressional hearing--none, and then the Federal--and the
oceans policy itself clearly states on page 30 that it will
create more regulation, I will ask you the same question I
asked Ms. Lubchenco. Who is wrong? Is the President wrong? Or
is Mrs. Lubchenco wrong?
Mr. Gibson. It is not a question of whether there is going
to be new regulation. Agencies and lawmakers such as yourself
promulgate new----
Mr. Southerland. No, no. We are not going to promulgate new
regulation on fishermen. I can tell you that right now. We are
not going to do that on this side of the aisle.
Mr. Gibson. It is the basis from which those regulations
emerge. And this gives us a seat at the table through our
council representation on the regional planning body, to make
sure that these regulations are common sense and fair.
Mr. Southerland. So my point to you is, does the national
policy--does the oceans policy create new regulations on the
American people?
Mr. Gibson. It has no authority to do so.
Mr. Southerland. Well, then, why does the President say he
is on its website, that it does create new regulation? So you
are saying the President is wrong?
Mr. Gibson. I am not familiar with the page on the website.
Mr. Southerland. It is 30. The American people can go see
it. OK? Ask Ms. Lubchenco. She disagrees with the President,
obviously.
You place incredible trust, and I will say this in closing.
You need to tread lightly, because this beast up here, a
government big enough to meet all your needs, is a government
big enough to take every single thing you own. I yield back.
Dr. Fleming. Next, Mr. Faleomavaega for five minutes, sir.
Mr. Faleomavaega. Thank you, Mr. Chairman, for calling this
important hearing. I think it is most appropriate. But this
issue did not just come about yesterday. This issue has been
around for years.
As I recall, I noticed, with the exception of Mr. Zales and
Mr. LeBlanc, we have some very expert witnesses who are members
of the legal profession. I think I recall one of the
Shakespearian plays that I think it was mentioned--I don't know
which Henry that was--but the first thing we do, we kill all
the lawyers. I meant that as a sense of humor to our
distinguished attorneys here. First thing we do is that we kill
all the lawyers. I think our attorneys will have a feast if
this ever becomes challenged and have to be taken before the
courts.
Mr. Chairman, and to our distinguished experts, I have
always taken the view always as a challenge of establishing a
balance between conservation and the commercial and the
recreational interests, especially as it relates to the marine
resources that are in the oceans. Regulation is to assure
continuity of the species.
I recall years ago the swordfish industry in New England,
some 150 of our fishing boats on the New England had to go to
Hawaii, because there was no more swordfish to fish in the New
England States. The question of conservation versus the ability
of continuing the--providing the species of fish that is
helpful not only to the economy of those who rely on commercial
fishing as well as recreational, I think there is no question
about that.
The question that is part of our national interest to
establish a national policy on oceans, as I--am I correct in
some of the figures that were given? We are talking about some
1.5 million square miles of oceans, whether it be the Atlantic
or the Pacific coast, up in Alaska, quite a bit, the effect
that--our entire fishing industry, we are looking at about 1.5
million people whose--workers that depend on the oceans.
I can say a little bit--I think I know a little bit about
the ocean. I come from a little place in the South Pacific, the
largest ocean in the world, if you want to put it in those
terms.
So, yes, I want to share with the--our expert panel here,
in terms of the key factors related to our National Ocean
Policy that the President felt needed, because it appears to
me--because Congress has not moved in establishing a National
Ocean Policy legislatively or statutorily. And, if I am
correct, as I read here, the National Ocean Policy does not
alter any government authorities, and does not require new
legislation to be implemented. The National Ocean Policy does
not restrict any ocean, coastal, or Great Lakes activity. Our
National Ocean Policy does not levy any fees or licenses or
taxes.
I can go on with some of the other things that are provided
here. It is my understanding before the President issued this
Executive Order there were some 5,000 public comments that were
submitted to the administration for consideration. And about
400 contributions, in terms of all the mix that went into ideas
and things that were brought in.
I noticed that one of the gentlemen said that they were
never consulted, or they never had an opportunity to sit on the
table to be consulted. Well, I don't know what happened in the
consultation process.
But I just want to say that as much as we like to hammer
the government as if the government is the source of all evil
and all the problems that we have in our government, I would
like to submit also that there is a very, very important role
that government plays when you are talking about the safety.
When you are talking about all these things, you have to take
those into consideration. But at the same time we have to also
understand, in a democracy and free market system, that for
economic growth we have to allow the private sector to prosper
just as much as any other activities, as it relates to the
resources. Tremendous resources that we have in our oceans.
So, I see my time is almost up, and I had 50 questions I
wanted to ask our panel, Mr. Chairman. But I do want to say
that I appreciate the different points of view about this
issue. But I happen to be one who says that the President has
taken this initiative and his leadership in doing this, simply
because Congress has not acted. The Pew Foundation report that
was given years ago, major, major report, but we have not acted
on any of these important things. So maybe that is the reason
why the President has taken this initiative by issuing the
Executive Order, to complement. Not to compete, not to take
away anything that we have already taken by law in that
circumstance.
Mr. Chairman, I know my time is up, but I will try for the
second round. Thank you, Mr. Chairman.
Dr. Fleming. The gentleman yields. Next, Mr. Duncan from
South Carolina.
Mr. Duncan. Thank you, Mr. Chairman. And I don't know how I
can say it any better than my colleague from Florida has said
it already. But I want to continue that discourse a little bit,
Mr. Gibson, because I feel like you need to go back and read
the Federalist Papers, read the Constitution, read what our
Founding Fathers envisioned for America. And I will refer in a
document known as the United States Constitution, Article 1,
Section 1, says, ``All legislative powers here and granted
shall be vested in a Congress of the United States, which shall
consist of a Senate and a House of Representatives.''
I go on to read Article 2, Section 1, the executive powers
of the presidency. And the executive power--the Executive
Orders that he assigned, they are not listed in here. So we
have a President who has created 106 new regulations that cost
the American taxpayer 46 billion additional dollars right
there.
Looking at Executive Order 13547 that creates this
particular issue that we are talking about today, that is a--
America, that is looking today--take a look at it. We
continually see the over-reach of the Executive Branch that
erodes the freedoms of Americans.
I think about this agency in context with what I see going
on inside the Beltway and in Washington, D.C. I stood in the
back of the United States Capitol the other day and I counted
nine construction cranes in the degree of the horizon that I
could see, just looking down the Mall. Nine construction
cranes.
Now, why is that important? Because it made me start being
aware, as I rode around Washington, how many construction
cranes I see inside the Beltway. And why is that important? It
is important because I don't see them in Greenville, South
Carolina, or Anderson, South Carolina, or Charlotte, North
Carolina, or Orlando, Florida, or Nashville, Tennessee, or
Dallas, Texas. But I see them here. Why? Why is that important?
Because this government is growing so large based on this kind
of stuff coming out of this administration, that government is
growing. And the support industry, the office buildings, the
apartment buildings, the new buildings that Department of
Homeland Security and other places--this government is growing
so large, and we are $15.5 trillion in debt.
So, I see this particular issue, which I believe is the
furtherance of this administration's desire to adhere to the
United Nations, and the laws of the Sea Treaty, because the
regulation itself allows the Federal Government to regulate
waters that flow into the oceans, all the way up through the
State of Louisiana and through the State of Florida and through
the State of South Carolina, all the way across the Midwest to
the Great Lakes, to regulate those with--and it says here that
States may opt out of serving on the RPB.
However, the RPB will continue with the zoning plan,
regardless of the States' participation, regardless of--where
are the states' rights in this? Where is the proper role of the
Federal Government, as based on the United States Constitution,
and where is the States' rights with regard to the waters
within that State? There are waters that begin in South
Carolina that flow into the ocean, and the State of South
Carolina ought to have some jurisdiction over its own waters.
Now, it says that States can opt out of this, but the
Federal Government is going to continue with their zoning plan,
regardless of that. And this is true, even if all the States in
the region decline to participate. ``Any State which agrees to
participate in the planning process will be required to make
sure all State-permitted activities meet the guidelines and
goals of the zoning plan.'' Now, where I come from, that is an
unfunded mandate from the Federal Government to the States to
comply with this policy, against the States' wishes many times.
So, Mr. Chairman, I don't have any questions for the
panelists. I believe Mr. Mannina summed it up very well. Thank
you for your comments earlier. I think America needs to wake up
to Agenda 21, the United Nations, and this administration's
violation of our liberties, violation of the proper role of the
Federal Government and the State governments. This is an
epitome of that. This is the prime example of a Federal
overreach with regard to the States. And with that, I yield
back.
Dr. Fleming. I thank the gentleman. And I think we have
interest in another round of questioning. So if our witnesses
are willing, we would love to start back again.
Mr. Gibson, I would like to return to you. And I am going
to move away from the constitutional and legal arguments. But I
would like to tell you that your optimism of what the Federal
Government can do is very inspiring, it really is. But let me
tell you my background.
I am a physician. Went into private practice in 1982. And
with each new rule, law, and regulation that came out since I
started my practice, particularly with regard to Medicare, SGR,
CLEA, RBRVS--all of these are acronyms that probably are not
familiar to you. But I can tell you, with each and every one of
them, it made my life and the life of my patients more and more
difficult, and it cost the Federal Government a lot more money.
So, I have to tell you I came to Washington somewhat
cynical about what government can do for you, and certainly
what it does to you. But I did keep a little bit of an open
mind. But since I have been here three-and-a-half years, I can
tell you that that little open mindedness has closed very
rapidly. I am very cynical about what the Federal Government,
apart from the Constitution and apart from law--every time the
Federal Government gets involved with new laws and regulations,
we just simply see more problems for the American people, and
more cost for the taxpayer.
But I want to turn to you, Mr. Mannina, one more time
about, I think, an important question. And that is, what, if
any, are the enforcement mechanisms to this policy?
Mr. Mannina. The Executive Order directs each Federal
agency to implement the national policy. And the President does
have the authority to direct his agencies to do things. That
said, however, I think that the direction falls outside his
legislative authority, delegated authority. He can tell an
agency what to do, but I don't think he has the power to tell
them to do the things that the National Ocean Policy asserts.
Without this Congress--as Mr. Faleomavaega said a moment ago--
without this Congress taking action to authorize it, I don't
think it is a properly delegated legislative authority.
Dr. Fleming. But you must well understand that we have seen
the President do a lot of things that we don't think he has the
power to do. You just heard Mr. Southerland talking about
launching an attack on Libya without even consulting Congress.
We feel like that is a direct violation of the Constitution,
and overreach of power.
So, my question to you, barring, you know, some sort of
litigation that goes to the Supreme Court, is it, in fact,
possible and perhaps likely that the President will attempt to
enforce the National Ocean Policy?
Mr. Mannina. The Executive Order is quite clear that
Federal agencies are directed to implement the National Ocean
Policy. So the answer to your question is yes.
The secondary question you are asking, sir, is will there
be litigation, and I think there is no question about it. I
would be foolish to predict the outcome. I mean the Supreme
Court, distinguished men and women, disagree by five to four
votes frequently. But I think there is a reasonable case that
can be made that this is beyond the President's authority to
execute the laws, because I don't think you have delegated that
authority to him, sir.
Dr. Fleming. So, short of a constitutional question, and
all the litigation that could derive from that, it is quite
possible that the President, acting through the agencies, could
implement a lot of policies that could be very harsh and
harmful to a lot of people, damaging a lot of Americans, until
the question is settled.
Mr. Mannina. There is no question this could be
implemented. And I think I will leave to you gentlemen and your
colleagues the decision as to whether it is wise or unwise. But
I will tell you that I think that it effectively amends a
number of statutes. You laid out a management program, for
example, the Magnuson-Stevens Act. That is effectively amended
through the National Ocean Policy. Maybe that is what you want
to have happen, maybe it is not. But as someone who worked on
the Magnuson-Stevens Act for many, many years, I have always
been in favor of the congressional process to outline the
statutory--the delegated statutory authorities.
Dr. Fleming. Right. And again, doubling back to my original
question--and that had to do with the fact that as we went
along with Medicare and more and more governmental involvement,
the more headaches, difficulties, and problems for the American
people, the taxpayers, the physicians, and patients. And so I
came to Washington hoping that we would reverse that, and move
back to days when things actually worked once again.
And in fact, what happened was we had Obamacare, which
doubled down on that. And I would love to show you a chart
today of what Obamacare will look like, in terms of the many,
many different layers of bureaucracy. And Mr. Mannina points
out very clearly that though there may not be constitutional
authority, that in fact, many of these policies will be carried
out.
I do have one quick question, though, for you, Mr. Gibson,
that is kind of a housekeeping matter. You note that a
representative of the Fishery Management Council may be able to
sit on the regional planning bodies. While I understand this
announcement was made at the recent meeting of the council
chairman, have you anything in writing confirming that?
Mr. Gibson. No, sir. But I have been led to believe that
that is true. Best of my knowledge, that is true.
Dr. Fleming. OK. Now you understand that a lot of people
are led to believe a lot of things in Washington that don't
come true. So I would challenge you that, before you make that
statement again, that you get it in writing.
With that, my time is up. And I believe Mr.--oh, I am
sorry. Mr. Markey is now recognized for five minutes.
Mr. Markey. Thank you, Mr. Chairman. Mr. LeBlanc, the House
has passed legislation in this committee's jurisdiction that
would open the Bristol Bay and the Aleutian Islands in Alaska
to oil drilling. The crab group of independent harvesters who
have joined your testimony today and other fishing local and
Tribal organizations from the Bristol Bay area oppose oil
drilling in these incredibly important fishing areas.
In 2008, Brent Paine, the Executive Director of the United
Catcher Boats suggested that areas in the Eastern Bering Sea
that are more valuable could be zoned to not allow oil and gas
development.
Mr. LeBlanc, do you oppose the Republican legislation to
open up the Bristol Bay and Bering Sea to oil drilling?
Mr. LeBlanc. Thank you, Mr. Markey. Yes. United Catcher
Boats has expressed its opposition to opening up those areas to
oil and gas, both to this committee as well as to our
colleagues--your colleagues on the Senate side.
Mr. Markey. Thank you. If oil drilling does move forward in
these areas, don't you think the Alaskan fishing industry will
want to have a say in how, where, and when that happens?
Mr. LeBlanc. Yes, and I believe we do.
Mr. Markey. Do you trust the Bureau of Ocean Energy
Management will take care of Alaskan fishermen, even if your
needs are in conflict with the needs of the oil industry?
Mr. LeBlanc. Well, I don't know that I would say I trust
them to inherently take care of or address commercial fishing
concerns, I don't believe that a regional planning body would
do so, either.
Mr. Markey. So, I think that we know that geologic oil will
win out over fish oil, in my opinion, unless we have something
like a National Ocean Policy and the regional planning bodies
that it will create to bring stakeholders together to work
through these conflicts is in place.
Because there is a saying in Washington, an old saying,
that if you are not on the table you are on the menu. And when
it comes to our Nation's oceans, more and more guests are
coming to dinner. We need to ensure that fishermen will always
have a seat at the table. And the National Ocean Policy
provides the recipe to help us to do that.
Following a decade of bipartisan discussion and stakeholder
engagement, including countless recreational and commercial
fishermen, President Obama established the first-ever National
Ocean Policy in July 2010. Creating such a policy was a
cornerstone of the 2004 recommendations of the President Bush-
appointed Commission on Ocean Policy. Now, in March 2012,
following even more public engagement, the draft National Ocean
Policy Implementation Plan is open for public comment.
Today, the Majority is holding a hearing which appears
aimed at denouncing the impact that a not-yet-final plan will
have on fishermen. This is like casting your net before the
boat has left the dock, or even has all the fishing gear
aboard. Recognizing the important role that fishermen play in
our national economy and our national identity, the
administration has responded to the concerns of fishermen as it
has worked to finalize its draft plan. They announced the
Stevens Act and all relevant State and local laws--let me
repeat what has been clearly stated by numerous Administration
witnesses during three previous hearings in this committee.
This policy does not supersede existing authority or create any
new regulations.
Implementing an ocean plan will optimize these existing
efforts to protect and restore the ecosystems that fish and
fishermen depend on. Fishermen flourish when fish flourish. The
National Marine Fisheries Service estimates that rebuilding
America's ocean fish populations will provide an additional $31
billion in annual sales, and create 500,000 new American jobs.
Protecting America's fisheries will help create jobs and
strengthen U.S. food security. Currently, the United States
imports 80 percent of its seafood. Growing uses within our
ocean and coastal areas, coupled with a changing climate, are
placing significant pressures on our ocean resources. The
National Ocean Policy will help build a secure domestic seafood
system to sustain jobs here at home. We need less focus on fear
mongering and more focus on supplying fish mongers.
Implementing the National Ocean Policy will promote vibrant,
sustainable fisheries, so that we will have American fish
caught by American fishermen on the table now, and in the
future.
I thank you, Mr. Chairman.
Dr. Fleming. The gentleman yields back. Next, Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman. As a
delegate from the territories, one of the most enjoyable thing
I do here is watch the delegate from the District of Columbia
argue that the Federal Government really has no business in
trying to run the affairs of the government or the District of
Columbia. I just hope that my colleagues here who are saying
this today would listen to that lady fight for her people.
Because it works, if it is in their favor. But when it is for
other people, it is the other way around, that the Federal
Government has business in local affairs of a State government.
And, in this case, the District of Columbia.
This is rambling. But, you know, delegates are supposed to
stay in the middle, make no noise, and survive, but I can't
just continue to allow the ramblings.
The--there was in 1981 Executive Order 12291 that--that was
President Reagan. When he similarly sought to achieve greater
regulatory consistency across the Federal Government with the
stated goal to reduce the existing burden of existing and
future regulations. While that may be different from the
National Ocean Policy, it attempted to accomplish--goes to
recreation of new mechanism structures and processes in the
Office of Management and Budget then. And, you know, lawyers
from President Reagan's Administration felt that he had the
authority to do that.
And just like as President Reagan used his constitutional
authority to harmonize regulatory consistency across the
Federal Government, let me make it clear that President Obama
is utilizing that same constitutional authority as a basis for
directing agencies to get engaged in the CMSP process.
As the sole constitutional officer responsible for the full
suite of ocean-related legislation to be executed, the
President is just--is responsible. It is his duty for using his
authority to ensure that agencies are not isolated from one
another, like Mr. Gibson said. So agencies can talk to one
another and have appropriate mechanisms in place to tackle
complex cross-jurisdictional public policy problems, because we
don't have here in the United States what we have in my home,
where we don't need to regulate it, because families know their
responsibilities, that that kind of fish is not for us to
catch, it is for the others. We talk to one another. And we
need some regulation in how this complicated Federal
Government--I am telling you, this is complicated.
But I am going to go back to Mr. Gibson, and ask him. Mr.
Gibson, much of the fear generated around the National Ocean
Policy is a concern that the intent of the policy is to create
additional restrictions on traditional ocean users such as
fishermen. Can you elaborate, sir, on your thoughts as to why
there was a closure of Federal waters to fishermen in the Gulf
of Mexico last year?
Mr. Gibson. Sure. It was the result of a conflict between
oil and gas development and fishing, and an absolute lack of a
plan to--at that time the Mineral Management Service ignored
warnings about the various safety devices that were, obviously,
not so safe. And it was because of an absence of a plan and
coordination across state and Federal agencies to respond to
such a disaster. And it was just economically devastating. I
can't--you know, I don't think anyone--I can't imagine why
anyone who lived through that would be opposed to the National
Ocean Policy.
Mr. Sablan. So can you share the reasons why this policy
represents a positive change from what existed before?
Mr. Gibson. Sure, sure. I mean, you know, Mr. Fleming asked
me if I had anything in writing. Well, again, my attorneys told
me that the States will have a seat at these regional planning
bodies. So I am going to take them for their word; I don't pay
them to lie to me.
But, you know, it is--you know, me, or Captain Zales, or
anybody else like us, you know, if we go up to MMS and say,
``Hey, we are worried about that thing blowing out and keeping
us off the water for months, if not years,'' or, you know,
impacting our businesses for decades on down the line--you
know, as a side note, I was a child working in Alaska when the
Exxon Valdez happened, I remember that quite vividly--you know,
they would have just ignored us or laughed at us, or both.
So, you know, this gives us a chance to sit down and make
our concerns heard. And in the context of drilling, you know, I
am not opposed to it, but I want to make sure it is done
safely.
Mr. Sablan. Yes, and I agree. I learned--with Mr. Markey
and what he said earlier, that if you are not on the table you
are on the menu, I actually learned that first from Mr.
Faleomavaega. Because, as delegates, we need to have a voice
share, and we just speak out as loud as we can, because nobody
really listens to us. But, man, we are always making noise.
And so--but thank you. Thank you all for your different
point of views. And, Mr. Mannina, if we are going to get rid of
lawyers, as Mr. Shakespeare said, Eni is one of those. So he
meant that in well-intentioned.
Mr. Mannina. Thank you, sir.
Mr. Sablan. No, thank you. Thank you very much, Mr.
Chairman. Thank you.
Dr. Fleming. The gentleman yields back. And next is Mr.
Faleomavaega.
Mr. Faleomavaega. Mr. Chairman, I think it is great that--
we need more doctors here in the Congress, because your great
mission in this life is to heal, and not to conduct
confrontations in all of this. But I do want to thank you for
giving us this second opportunity to raise some questions,
hopefully, and--as part of the dialogue.
I--Mr. Chairman, I am still learning how to speak English.
So, in the process, I do want to associate myself with the
comments made earlier by the gentleman from Massachusetts, our
Senior Ranking Member of our committee, Mr. Markey, because I
think he really put it right on the nail--is it the hammer and
the nail, or the nail and the hammer--in terms of exactly the
whole basis of how this policy, the National Ocean Policy, was
developed. It didn't just come yesterday from Obama's brilliant
thinking. This process has been ongoing, even from the time, as
I recall, from President George W. Bush. This is how the whole
thing initiated--was initiated.
And, like I said, I think one of the reasons why the
President has taken this initiative to, by Executive Order, do
this, is because Congress has failed for the last 10 years to
come up with a national policy, by statute, on how to look at
the importance of why the oceans is indeed a very, very
important part of our ecosystem, to be sure that we look at the
situation.
Right now, I have in my own district a proposal by NOAA to
expand one of the national sanctuaries that is based in my
district, five additional sites that NOAA has now developed in
the past couple of years. And I raised some serious questions.
The questions about marine protected area--that always seems to
be the magic word, because immediately, my fishermen, and
everybody in the fishing industry, ``What, does this mean that
we cannot go fishing there,'' because the livelihood of our
fishermen depends on this special area.
So, whether it be in my little district or throughout the
country, as I notice, I think this has been the common concern
by members of our panel who represent our fishing industry, and
I absolutely--I support the concerns of our commercial
fishermen, recreational fishermen, to make sure they have
access to the fish that provides for their living.
So I--and I think I go back to my initial statement, Mr.
Chairman. We have to strike a balance, just as if--as a matter
of principle, there seems to be a little disagreement with my
colleagues about how the whole--this whole government came
about.
Now, I realize--and if I am correct, Mr. Chairman, my
limited readings about the Founding Fathers of our country--
purposely, purposely established a three-branch government as a
divided government. There was no intention that we are going to
have one party, one government, one religion, because our
Founding Fathers did not trust the nature of man. You know, one
little saying, that power corrupts--absolute power corrupts
absolutely. We are not going to have any more kings or emperors
and all this sort, so that the legislature and the Executive
Branch puts a check on each other. So it is a checks and
balance.
So, I realize that some of my colleagues from the other
side are raving about too much extension of over-reaching on
the power of the President, or the Executive Branch of
government. But there is a process in our Constitution if
Members don't like the idea that the President over-reached
himself in the issue of Libya, introduce a bill to prohibit the
President from doing these kinds of things, because there is
the balance, checks and balance system, as we currently have
it.
So, what have we produced? As I hear in some quarters, we
now have a dysfunctional government, where there is absolute
partisanship so much that I believe, Mr. Chairman, our people,
the American people, are tired of this. We seem to have
forgotten the word in the process--it is compromise. You don't
have to compromise your principles, but at least compromise so
that something gets done here in our national government, so
something gets done or something gets moving for the needs of
the American people.
My question to our friends here--and now Mr. Mannina is
smiling at me because I wanted to ask him a legal question--I
know, until the second coming of the Savior, we are going to
continue having legal questions about the Constitution, even in
this issue that we are having here. I don't think there could
ever be an agreement. But as--I sense, as a matter of policy,
gentlemen, I think all our commercial fishing industry is
asking for, as Mr. Markey had alluded to earlier, a seat on the
table, or else you are going to be on the menu.
I think the question is, are your voices heard? That is why
you have Members in your given district representing your
interest, hopefully to bring it to the attention of this
committee, so that--to make sure that your interests are given
every thoughtful consideration. So I--oh, man. I haven't even
had a chance to ask my 50 questions, Mr. Chairman.
[Laughter.]
Mr. Faleomavaega. But I do want to say to our friends in
the panel, Mr. Chairman, absolutely, your serious concerns
about the whatever that we do here in the Congress should be
seriously considered, especially the interests of our
fishermen. And I want to assure you that I have a very soft
part of my life in terms of the needs of our fishing industry
in this country.
Why do we have to import $9 billion to $10 billion worth of
fish from foreign countries? Why? Because we don't produce
enough fish domestically. What happens? We don't have fish
farms. Our aquaculture development program is way out of whack.
For some reason or another, when I visit other countries, Mr.
Chairman, unbelievable how far advanced they have been in doing
fish farms. We can't even do it for some reason. And I don't
think this goes against the needs of our commercial fishermen
in that regard.
Mr. Chairman, thank you. I--thank you, gentlemen. I didn't
ask my questions.
Dr. Fleming. I thank the gentleman, the gentleman yields
back.
In the closing moments, I really have one more question, so
I will--and I will certainly open it up for the panel for any
last-minute random questions, as well. Before I ask my
question, however, I do want to note that earlier this week
nine Senators have asked Senate Commerce Committee to request
oversight hearings on the National Ocean Policy. So certainly
they are engaged and concerned, as well.
Now, Mr. Mannina, before I ask you this question, I want to
preface it with this statement. There is a difference between
having input and having a seat at the table. And that is
something I learned very quickly up here. I have seen over and
over and over again where rules have been created, some kind of
regulation promulgated, and there is a request for public
input, and the public comes back and says, ``No, this is really
dumb,'' overwhelming articulate arguments and so forth, and
then agency goes on and does exactly what it wants to do. So, I
am very cynical about that.
And, Mr. Gibson, quite frankly, I think it is naive to
believe that just having input is of any value. So the question
is, do you have a seat at the table? Do stakeholders have a
seat at the table? So that is what I want to ask you, Mr.
Mannina. Under the Executive Order, can any stakeholder have a
seat at the table of the regional planning bodies?
Mr. Mannina. The Executive Order limits the ultimate
decision-making authority to Federal agencies and to the
National Ocean Council, with its at least 23 members. That is
your governing body, and there is not--it is strictly a Federal
body, sir. So, at the end of the day, no matter what input is
provided, the Federal Government will make the decisions that
it believes to be appropriate.
And you raise an interesting question. Because when
agencies issue regulations, it is typically through the
Administrative Procedure Act, and there is public comment.
Dr. Fleming. Right.
Mr. Mannina. The agency receives it and decides what it
believes is appropriate. Under the terms of the Executive
Order, once the National Ocean Policy is promulgated, it says
that agencies will implement whatever policies and regulations
are necessary. The National Ocean Policy will tell the agency
what to do. So, no matter what the public comment might be, the
outcome is already determined through the National Ocean
Policy. And that is why I suggested earlier that I think it is
up to you gentlemen and your colleagues in the Congress to
decide what kind of policy you wish, and how you want the
administration to implement it. Because, as it exists now, the
administration will move forward in the manner that it believes
to be appropriate, and I think it is going to lead to,
mercifully, much litigation, sir.
Dr. Fleming. Right. Well, and again, what we are really
talking about here is that the only decision-makers are from
the Federal Government. And the only Federal Government
decision-makers are from the Executive Branch.
Now, the Constitution that I learned about in school when I
took civics and history said that the Members of Congress
represent their districts and their constituents, that we are
the ones who represent the views and the attitudes of the
American citizens. So we are totally shut out of this process,
the so-called inputs of stakeholders, see, where there is
actually no force from that whatsoever. And so, again, that
begs the question: Is this not really all coming from the
Executive Branch?
So that is really kind of the thing I wanted to be sure--
did you have another comment, Mr. Mannina?
Mr. Mannina. I was just going to say, Mr. Chairman, that
the Supreme Court in 1996, in a case called Loving v. United
States echoed your views, saying that the Constitution does lay
out the roles and responsibilities of each branch, but that the
congressional branch is--and I am not going to quote--the one
most capable of responsible and deliberative law-making. Ill-
suited to that task is the presidency and the judiciary.
And so, I think that if this actually becomes a
constitutional fight, that there is a reasonable chance that,
falling back on existing Supreme Court precedent, that this
National Ocean Policy would be called into serious question.
Dr. Fleming. Right. So, apart from the constitutional
question, basically we have all the decisions made by the
Federal Government, all of that in the Executive Branch, and
that, indeed, it does have enforcement powers through the
agency itself, not constitutionally, but in a--reality on the
ground, that is the way it would work, until such time as the
Supreme Court would step in.
With that, I will yield to Mr. Sablan, if you have any
further questions, sir.
Mr. Sablan. Yes, just Mr. Mannina. We have only been part
of the United States for, what, 34 years? You are telling me
that this issue has existed because it is a constitutional
question for over 200 years.
Mr. Mannina. The issue of the separation----
Mr. Sablan. Of----
Mr. Mannina. I am sorry----
Mr. Sablan. Presidential authority to do what President
Reagan, President Bush, President Obama is doing, it is not an
issue between the Congress and the President. It is a
Presidential authority that has been used by presidents.
Mr. Mannina. The President----
Mr. Sablan. And the court hasn't said no.
Mr. Mannina. Thank you, sir. The President does have the
authority to issue regulations to implement statutes. But that
authority is delegated from the Congress. And it is my view,
sir, that the Congress has not delegated this authority to the
President in this--for the National Ocean Policy.
I was also interested in your citation to Executive Order
12291, because in preparing for this presentation I read a
number of legal commentaries, many of which focus on that
Executive Order. And all the scholars asserted that they
thought it was beyond the President's authority under the
Constitution. Now, why that was not litigated is a matter that
I will leave to my colleagues at the bar.
But I would submit to you that if the National Ocean Policy
moves forward, the stakes are so high that there will be
litigation to try to define what the proper authorities are,
unless and until the Congress does that in a manner it thinks
appropriate.
Mr. Sablan. Right. And I was just making that statement
also, just to reflect that it is not just this President that
is using this authority--and it is, again, President Reagan,
President Bush--I guess I am old enough to remember President
Reagan, too, but--and just one last question, Mr. Chairman, if
I may.
Mr. Gibson, are fishermen allowed to be members of the
regional planning bodies, provided that they hold office at
either the State, Tribal, or local level?
Mr. Gibson. All of the people that sit on the South
Atlantic Council on behalf of the States are fishermen. And
those are the people that, it is my understanding, would
represent us. I have enormous confidence in all of them, they
are personal friends.
Mr. Sablan. So there will be a mechanism for fishermen to
participate in the planning process.
Mr. Gibson. Yes. And there will also be subcommittees and
advisory panels, and things like that created.
Mr. Sablan. I can never say no to my--Mr. LeBlanc, please.
Mr. LeBlanc. No, I appreciate that. And it is my
understanding that--when the presentation or the proposal of
having a representative of the Regional Fishery Management
Councils on the RPBs was offered, the response was, ``Yes,
provided that they are a Federal, State, or Tribal member of
the council.''
Mr. Sablan. Yes, right. No, I understand that.
Mr. LeBlanc. So public citizens that are on the councils
can't be on the RPBs.
I would--just one quick comment, just to stretch Mr.
Markey's analogy about tables and menus, if you are a sheep
invited to a table of wolves, you quickly become on the menu,
even if you have been offered a seat.
Mr. Sablan. Well, that is a little complicated for this new
American, Mr. LeBlanc.
[Laughter.]
Mr. Sablan. But Mr. Landry and I were talking one time. He
is a sports fisherman. And he said, ``You have fish on your
island?''
And, of course, you know, we--I said, ``The only--you are
welcome to come and fish on my island, I will bring you there,
if you want, with--one condition is that you cannot catch and
release a fish. Where I come from, you catch and eat a fish.''
So that is the deal we made.
I mean this is important to us, sir. And while I have
disagreements also with fisheries regional councils, again, I
am not joking when I say that back home I grow up and I still
today, if I choose to have three or four meals a week with
fish, and I can have different assortments, and this is true,
both the conservation--and we need to continue this, because it
is part of our lives. It is not a business to us, sir. It is
who we are. And this is how important this issue is to us.
So, thank you, Mr. Chairman, for holding this important
hearing. Thank you, everyone, for sharing your thoughts with
us.
Dr. Fleming. I thank the gentleman. The gentleman yields
back. And I will add to that, that it is a fascinating
discussion, even involving discussions of the Constitution,
which makes it so interesting for us, and hopefully the panel
and those who join us here today.
The members of the Subcommittee may have additional
questions for the witnesses, and we ask that you respond to
these in writing. The hearing record will be open for 10
business days to receive these responses.
Finally, I want to thank Members and staff for their
contributions to this hearing.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 11:12 a.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[A letter submitted for the record by Aaron Longton, F/V
Goldeneye follows:]
F/V Goldeneye
Aaron Longton*
PO Box 1486*
Port Orford, OR 97465
March 19, 2012
Thank you for the opportunity to provide testimony on this
important issue.
I am a commercial fisherman from Port Orford, Oregon. I've
commercial fished for fifteen years for salmon, tuna, halibut, and
groundfish. During my fishing career I have seen ocean issues neglected
by the federal government and I believe it is time now to focus on an
enormous asset for the United States, our oceans.
Anyone who pays attention is well aware that the competing use for
space in our ocean is increasing. In Oregon, we are dealing with what
are essentially zoning issues for competing ocean uses for fishing,
recreation, wind and wave energy, and marine reserves sites for areas
closed to fishing. An additional emerging issue is offshore
aquaculture. Without a comprehensive plan through a stakeholder-driven
process, there is certainly going to be conflict between different
stakeholder groups and a lack of a sensible resolution. The National
Ocean Policy provides us with the tools to come to the table and solve
this marine puzzle. We need funding for National Ocean Policy so this
critical issue of competing uses of the ocean can be addressed.
From a fisherman's standpoint, I worry that if we miss this
opportunity to fund and implement National Ocean Policy and this
opportunity to plan for inevitable change there will be big winner and
big losers instead of an organized process that provides for all uses.
All stakeholders, including fishermen, should take seriously this
opportunity to represent their interests rather than be marginalized by
nonparticipation or hasty top-down decisions.
This accelerated demand for uses in the ocean shows no sign of
slowing down. Now is the time to fund and implement National Ocean
Policy to help the United States use our public resource, our ocean,
effectively.
______
[A statement submitted for the record by the Shinnecock
Indian Nation follows:]
SHINNECOCK INDIAN NATION
Shinnecock Indian Reservation
P.O. Box 5006
Southampton, New York 11969-5006
Phone (631) 283-6143 ext 1 Fax (631) 283-0751
Written Testimony of SHINNECOCK INDIAN NATION
Submitted by Gerrod Smith, Trustee
Salvatore Ruggiero, Advisor
March 22, 2012
The Honorable Doc Hastings
Chairman
Committee on Natural Resources
U.S. House of Representatives
Washington, DC 20515
The Honorable Edward J. Markey
Ranking Member
Committee on Natural Resources
U.S. House of Representatives
Washington, DC 20515
The Honorable John Fleming
Chairman
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
U.S. House of Representatives
Washington, DC 20515
The Honorable Gregorio Sablan
Ranking Member
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
U.S. House of Representatives
Washington, DC 20515
As an indigenous coastal community, the Shinnecock Indian Nation, a
Federally Recognized Indian Tribe is concerned with issues regarding
the ocean and its bounty. After all, we are surrounded by the great
waters of Peconic Bay, Shinnecock Bay and the ever majestic Atlantic
Ocean. These waters have sustained us since time immemorial.
In fact it was our ancestors who welcomed the English settlers. One
of the many things we shared was our method of whaling, and this
collaboration helped create the first industrial revolution.
The need for collaboration has never been greater. By 2030, the
world will need at least 50 percent more food, 45 percent more energy
and 30 percent more water, according to U.N. estimates, at a time when
a changing environment is creating new limits to supply.
The National Ocean Policy creates a platform in which all parties
can share their specific concerns and collaboratively work together for
the benefit of all. The National Ocean Policy creates a bottom up
approach and not a top down bureaucratic exercise. It supports our
coastal communities and improves government efficiency leading to
better results for all interests. We need the National Ocean Policy in
order to prepare our coastal communities and country for the future.
The National Ocean Policy allows all concerns to have a voice at
the table, including commercial and recreational fishermen. It does not
exclude their participation; in fact it welcomes and needs their input
in order to produce true and effective regional ocean planning
partnerships. We need to work with fishermen to ensure a continued
supply of safe seafood and to help protect healthy coastal communities.
The National Ocean Policy can help create opportunities for
fishermen to diversify in sustainable ways by encouraging responsible
development of ocean and coastal resources like offshore renewable
energy and shellfish production, and by making sure uncoordinated ocean
development does not harm ecosystems, fisheries or cultural resources.
We can choose to watch and observe and not be moved by the facts,
or we can embrace the challenges that lie ahead. Let us join together
to create better communities, a cleaner and safer future for our
children, and the hope of what we all strive for--a peaceful and
prosperous existence.