The Origins and Early Implementation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976

Abstract

The Magnuson-Stevens Fishery Management and Conservation Act, enacted in 1974, is the primary federal fishery management legislation in the United States. The political impetus that led to enactment was the extensive foreign fish off U.S. shores that expanded following World War II and the failure of international negotiations to prevent the decline in many fisheries relied upon by domestic fishers. In Congress, there was uncertainty as to whether a comprehensive management program would be created along with a unilateral extension of fishery management jurisdiction out to 200 nautical miles. The delay in agreement over a new United Nations Law of the Sea Treaty and resolution of the extent of coastal nation jurisdiction over fisheries culminated in enactment of the legislation sponsored by Senator Warren Magnuson, a Democrat from Washington State, and Senator Ted Stevens, a Republican from the State of Alaska.

Keywords:

• international law of the sea
• fishery management
• federal legislation
• ocean policy

Notes

A classic, simple definition of the exercise of political power was coined by Robert A. Dahl, a Yale political scientist: Politics is the process that determines the authoritative allocation of values. Power he defined as follows: “A has the power over B to the extent that he can get B to do something that B would not otherwise do.” Enactment of federal legislation is the most basic application of political power in our democracy (New York Times, Obituary, Feb. 7, 2014).

We took courses from other parts of the university, including the Introduction to Fishery Science course taught by Professor William Royce and an oceanography seminar from Professor Richard Fleming who had authored the textbook that said everything there was to say about oceanography in the days after World War II. We also took a technology management course from Professor Edward Wenk, Jr.

Senator Magnuson's 1965 bill to create a national oceanographic council at the White House was the impetus for the Commission. Professor Wenk, who taught Civil Engineering and Public Affairs at the UW, served as Executive Director of the White House Office that oversaw the Stratton Commission.

Oddly, businesses are also NGOs. But the term NGO has evolved into regular usage for environmental groups, replacing the term “public interest” organizations.

Actually, that is not entirely true. Efforts to extend American jurisdiction over nearby ocean resources began with a fight over fur seals in the Bering Sea in the late 1800s and have continued for years. See Swygard (1967).

None other than General Douglas MacArthur was behind the effort to gain access to the Southern Ocean for the Japanese whaling fleet right after the war.

President Truman in 1945 also issued a Proclamation on the Continental Shelf asserting sovereignty over the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States. Proclamation No. 2667, 3 C.F.R. 67, 68 (1945).

Over time, fishery scientists’ view of the basic objective of maximum sustainable yield began to change. In the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, the definition of conservation was the “aggregate of measures rendering possible the optimum sustainable yield from those resources to secure a maximum supply of food and other marine products.” Scientists had come to the conclusion that, in a mixed fishery, it was impossible to simultaneously maximize the yield from several stocks of fish with differing life characteristics. This change in concept was incorporated into the U.S. law of the sea position on fishery management in the years to come and became part of the original Magnuson-Stevens Act.

At its first meeting, the Commission took note that “during recent years certain fisheries of the area (i.e. haddock), particularly off the New England coast of the United States of America, have shown signs of depletion.” In 1951, 2.3 million metric tons of fish were being taken in the area covered by the Convention.

No doubt part of the reason for this view is that Wib Chapman in 1951 became the science advisor to the American Tunaboat Association and later to Van Camp Sea Food Company, a canned tuna processor, until he died in 1970. Senators Warren Magnuson and Henry Jackson were also long-time supporters of the U.S. tuna fleet based in Southern California, in large part because most of the fleet was built in shipyards in Seattle and Tacoma.

Massachusetts extended its state court jurisdiction (to enforce fishing laws) to 200 nautical miles. In Oregon in 1974, the Oregon legislature over-rode the governor's veto to extend the State's limits to 50 miles.

Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 3 (July 25, 1974). In reaching this decision, the Court cited a work co-authored by Professor William T. Burke, Emeritus of the UW Law School, entitled Public Order of the Oceans.

Conflicts, sometimes violent, were generated by U.S. tuna fishing where countries such as Peru enforced a 200-mile limit. See Loring (1971).

The report referenced various techniques for fisheries management, including individual transferable fishing quotas (IFQs). Francis T. Christy, Jr., a resource economist who first coined the concept of IFQ, was consulting for the Library of Congress at the time of consideration of the Magnuson-Stevens Act. He was most upset that the legislation did not, at the outset, mandate rather than simply authorize IFQs for all U.S. fisheries. I told him that it was not politically possible to mandate a new and controversial idea and retain the line of support needed for passage, especially given all the opposition to the legislation.

My recollection is that the idea of regional councils first came from NOAA, in particular its then-administrator Robert M. White. The agency was working behind the scenes to influence how fishery management would be conducted in the future, despite the opposition to S. 961 by the Ford Administration.

Environmental groups requested that the bills also extend the jurisdiction of the Marine Mammal Protection Act to 200 miles. Otherwise, these groups commented very little on the pending legislation.

In a rather bizarre development, Senator Mike Gravel (D.–Alaska) became a prime spokesman against the legislation. He was later only one of 19 Senators to vote against the bill. He lost his Alaska Senate seat in 1980.

My colleague, and former general counsel of NOAA, Eldon Greenberg, refers to this initial period of the Magnuson-Stevens Act as the “heroic” period. See Greenberg (2010).

I became a consultant to NOAA at the end of 1977 on the way to becoming deputy administrator. I served as deputy administrator until August 1981 and as acting administrator from January to August 1981.

Direct harvests of fish by foreign vessels in the 200-mile zone ended in 2001.

Statement of James P. Walsh, deputy administrator of NOAA, cited by Christie (1980, 89).

It was alleged that a “Fish Trust” made up of the members of the Alaska Packers Association ran the territory's fishery policy. A former federal official in Alaska, John Cobb, was alleged to have been quite effective on behalf of the “Trust” as its General Superintendent. John Cobb later founded the University of Washington School of Fisheries.