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Guest Column: What can Lobstermen Learn from California Crab Fishermen?

Noah Oppenheim is the executive director of the Pacific Coast Federation of Fishermen's Associations

This past spring California’s Dungeness crab fishery, in recent years the state’s second-most valuable sector, was shut down three months early (it usually runs mid-November to July along the entire coast) as part of a lawsuit filed by the Center for Biological Diversity (CBD). CBD sued the State of California because of whale entanglements with Endangered Species Act (ESA)-listed whales. Our Dungeness crab fishery is state managed, therefore there is no Incidental Take Permit (ITP) or Take Reduction Team (TRT). The management agency is now facing a hairtrigger for future closures because of a settlement in the case, and there may be additional lawsuits in the future. I grew up in Maine and I studied lobsters and the lobster fishery at UMaine. Having now spent time in the trenches of whale litigation on the West Coast, I believe it’s important for Maine lobstermen to understand the legal and policy implications of the California crab situation. My organization’s members are dealing with what would be close to the worst-case scenario for Maine. The Maine lobster fishery should avoid this scenario, and I believe it can. How did we get here? On the West Coast, CBD’s legal engagement resulted in a federal court case filed in October, 2017, which focused on entanglements with ESA-listed species in California Dungeness crab gear. Our organization, the Pacific Coast Federation of Fishermen’s Associations (PCFFA), was the sole entity to intervene in CBD v. Bonham to protect the interests of our industry. The case proceeded relatively normally over the first 16 months, but this past spring the judge informed the parties that she was likely to rule in favor of CBD. In the absence of an ITP, the judge said, the State of California was going to be found liable for permitting the fishery in a manner that allowed incidental take. The state asked the judge for a couple weeks to reach a settlement, and the parties began talks. Those settlement talks were the most difficult and frustrating days of my career, but in the end we had an agreement that was better for the fleet than it would have been absent our participation. At the end of March our Board of Directors voted to agree to the settlement negotiated between the parties, which resulted in the closure of the California Dungeness crab fishery on April 15th and will almost certainly result in subsequent early closures in the spring. The alternative to settlement was the very real risk that the judge in the case would shut down the fishery entirely for multiple seasons or, less damaging but still extremely troubling, manage the fishery from the bench. In the end, the decision our Board made was a choice between the least damaging settlement that CBD would agree to (and it most definitely would have been a worse settlement if we weren’t at the table), or the risk of judicial intervention in our fishery. This was a lose-lose deal. Our organization made an extraordinarily difficult choice knowing the risks of both options. The fleet will lose millions of dollars, and our members have suffered and will continue to suffer hardship. In order to contemplate the impact that this case will have to the crab industry, and the potential for similar scenarios to affect other fixed gear fisheries, you first have to understand the legal landscape we are operating in today. But you don’t have to be a lawyer to grasp the implications. Compliance with the ESA in the California Dungeness crab fishery means dealing with entanglement risk without a viable mitigation framework in place or face the very real potential of even more restrictive closures. What can be done about it? The implication is clear: fixed gear fisheries with documented/confirmed entanglements are dealing with extraordinary legal exposure. Responding to this exposure in an organized and strategic way is critically important because the alternative is chaos, which our opponents will gladly take advantage of. In the case of the California Dungeness crab fishery, responding intelligently means uniting in common purpose to achieve the most favorable ITP possible, to aggressively fight any future legal challenges, and to remind politicians and the public of the value commercial fisheries bring to them. We’re also similarly faced with the challenge of reviewing scientific tools and the decisions that are based on them. Like the situation in the Maine lobster fishery, questionable triggers for management action based on unverifiable presumptions are being used in decision making in California. Such approaches should be challenged vigorously. It’s likely going to take at least two years for the feds to issue an ITP for the Dungeness crab fishery and, in the meantime, the actions we take and the decisions we make under the auspices of the California settlement could mean the difference between a period of belt tightening, or the implosion of California’s coastal communities. American fisheries have been divided and conquered for decades. The most important thing Maine lobstermen can do right now is unite. Challenge bad ideas, advance good ones. The alternative is far too damaging to allow.

What can be done about it? The implication is clear: fixed gear fisheries with documented/confirmed entanglements are dealing with extraordinary legal exposure. Responding to this exposure in an organized and strategic way is critically important because the alternative is chaos, which our opponents will gladly take advantage of. In the case of the California Dungeness crab fishery, responding intelligently means uniting in common purpose to achieve the most favorable ITP possible, to aggressively fight any future legal challenges, and to remind politicians and the public of the value commercial fisheries bring to them. We’re also similarly faced with the challenge of reviewing scientific tools and the decisions that are based on them. Like the situation in the Maine lobster fishery, questionable triggers for management action based on unverifiable presumptions are being used in decision making in California. Such approaches should be challenged vigorously. It’s likely going to take at least two years for the feds to issue an ITP for the Dungeness crab fishery and, in the meantime, the actions we take and the decisions we make under the auspices of the California settlement could mean the difference between a period of belt tightening, or the implosion of California’s coastal communities. American fisheries have been divided and conquered for decades. The most important thing Maine lobstermen can do right now is unite. Challenge bad ideas, advance good ones. The alternative is far too damaging to allow.

Dungeness Crab courtesy SF Gate

I grew up in Maine and I studied lobsters and the lobster fishery at UMaine. Having now spent time in the trenches of whale litigation on the West Coast, I believe it’s important for Maine lobstermen to understand the legal and policy implications of the California crab situation. My organization’s members are dealing with what would be close to the worst-case scenario for Maine. The Maine lobster fishery should avoid this scenario, and I believe it can. How did we get here? On the West Coast, CBD’s legal engagement resulted in a federal court case filed in October, 2017, which focused on entanglements with ESA-listed species in California Dungeness crab gear. Our organization, the Pacific Coast Federation of Fishermen’s Associations (PCFFA), was the sole entity to intervene in CBD v. Bonham to protect the interests of our industry. The case proceeded relatively normally over the first 16 months, but this past spring the judge informed the parties that she was likely to rule in favor of CBD. In the absence of an ITP, the judge said, the State of California was going to be found liable for permitting the fishery in a manner that allowed incidental take. The state asked the judge for a couple weeks to reach a settlement, and the parties began talks. Those settlement talks were the most difficult and frustrating days of my career, but in the end we had an agreement that was better for the fleet than it would have been absent our participation. At the end of March our Board of Directors voted to agree to the settlement negotiated between the parties, which resulted in the closure of the California Dungeness crab fishery on April 15th and will almost certainly result in subsequent early closures in the spring. The alternative to settlement was the very real risk that the judge in the case would shut down the fishery entirely for multiple seasons or, less damaging but still extremely troubling, manage the fishery from the bench. In the end, the decision our Board made was a choice between the least damaging settlement that CBD would agree to (and it most definitely would have been a worse settlement if we weren’t at the table), or the risk of judicial intervention in our fishery. This was a lose-lose deal. Our organization made an extraordinarily difficult choice knowing the risks of both options. The fleet will lose millions of dollars, and our members have suffered and will continue to suffer hardship. In order to contemplate the impact that this case will have to the crab industry, and the potential for similar scenarios to affect other fixed gear fisheries, you first have to understand the legal landscape we are operating in today. But you don’t have to be a lawyer to grasp the implications. Compliance with the ESA in the California Dungeness crab fishery means dealing with entanglement risk without a viable mitigation framework in place or face the very real potential of even more restrictive closures.

"American Fisheries have been divided and conquered for decades. The most important thing Maine lobstermen can do right now is unite."

What can be done about it? The implication is clear: fixed gear fisheries with documented/confirmed entanglements are dealing with extraordinary legal exposure. Responding to this exposure in an organized and strategic way is critically important because the alternative is chaos, which our opponents will gladly take advantage of. In the case of the California Dungeness crab fishery, responding intelligently means uniting in common purpose to achieve the most favorable ITP possible, to aggressively fight any future legal challenges, and to remind politicians and the public of the value commercial fisheries bring to them. We’re also similarly faced with the challenge of reviewing scientific tools and the decisions that are based on them. Like the situation in the Maine lobster fishery, questionable triggers for management action based on unverifiable presumptions are being used in decision making in California. Such approaches should be challenged vigorously. It’s likely going to take at least two years for the feds to issue an ITP for the Dungeness crab fishery and, in the meantime, the actions we take and the decisions we make under the auspices of the California settlement could mean the difference between a period of belt tightening, or the implosion of California’s coastal communities. American fisheries have been divided and conquered for decades. The most important thing Maine lobstermen can do right now is unite. Challenge bad ideas, advance good ones. The alternative is far too damaging to allow.

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