Recorded: September 2011
Earthjustice staffer Jessica Knoblauch speaks with Roger Fleming, an Earthjustice attorney who focuses on east coast issues as part of a core oceans litigation team.
Since 2007, Fleming has worked with local fishermen to promote healthy ocean ecosystems in New England, an area that is often referred to as the poster child for bad fisheries management. Over the years, Earthjustice has had a string of victories that have led to more sustainable fisheries on the east coast.
Roger Fleming: Well, I’ve known about Earthjustice for a long time. I went to law school specifically to study environmental law and hopefully become an environmental lawyer, so with that kind of background I was familiar with Earthjustice and actually hoped one day to work for Earthjustice. Things worked out and here I am.
Jessica: And so when did you first start working for Earthjustice?
Roger: I started working for Earthjustice in 2007. There was an opportunity to come to Earthjustice and work full time on fisheries law issues for a couple of specific campaigns that were being put together by the Pew Environment Group. And so Earthjustice has really become partners in those campaigns with the Pew Environment Group and we of course take on many other clients as well that are related to that work. So it’s been four years.
Jessica: So you mentioned working with [Earthjustice Oceans Program Director] Steve Roady and he’s put together this core attorney team at Earthjustice that works to protect and manage our oceans and you’re a part of that team. So you work on east coast issues specifically, right?
Roger: That’s right. Primarily when I first started working for Earthjustice the campaigns that we were working on were focused exclusively in New England, but over the course of the past year we’ve been expanding those campaigns and are doing some work in the mid-Atlantic region, really the whole east coast. And I also continue to do some national policy work.
Jessica: So how did you become interested in working on ocean issues specifically? Are you from the east coast?
Roger: Ah, the big picture question! No, actually I grew up in the Midwest and we didn’t get out much when I was growing up and the ocean was always something that interested me. It was mysterious. It was a long way away. But I always read about it and I always sort of dreamed of working on ocean-related issues even though I never even got to see the ocean until I was actually a senior in high school, believe it or not.
And so I focused on environmental law in law school and took all of the ocean-related law classes that I could, and I think from a legal perspective I’ve always been much more of a what one of my professors used to call a “birds and bunnies environmentalist” as opposed to a “pollution-oriented environmentalist.” In other words, I had just always been more interested in working on critter issues, and I think that the oceans are … our planet is a blue planet. It’s mostly ocean and yet the oceans receive, at least in my view, relatively little attention from an environmental perspective. So it really worked out well for me. It’s been a lifelong interest of mine, but it’s also an area where I think there’s a significant need for attorneys to work on the issues and a significant need for conservation. So I slowly worked this way over the course of my life, I guess, to work on oceans issues and I got a few lucky breaks and here I am.
Jessica: So are there ocean-management issues that are unique to the east coast?
Roger: Well, I think there are a lot of similarities. I think you can draw parallels with the ocean cycle of life and the need to protect habitat and forage/food for the larger animals and all the rest, of course. But I think that the east coast presents some unique circumstances in that on the east coast we have our nation’s oldest fishery. The original settlers, or the European settlers anyway, came to New England and arguably settled here because of the fisheries’ resources that were available around Cape Cod and the surrounding areas, what we call the Gulf of Maine.
And so I think that given that we have had organized commercial fisheries here for literally hundreds of years it brings with it a lot of unique challenges. There’s just that history and that culture is sort of engrained in the fabric of New England. For example, there is a wooden sculpture of a codfish that hangs over the statehouse in Massachusetts. So I think with that there comes a whole host of issues with trying to make changes. One time the resources just seemed so abundant that it just seemed like they would never run out. It seems like that everywhere, I suppose, but given the fact that so much of the cultural history and the economic history and everything else … political history … has a lot to do with the development of fisheries and the relationship with oceans. Making change can be very difficult.
There’s also, related to that, there are small fishing communities and a lot of fishing families that for generations have depended upon the ocean. So if those fisheries start to change, for example, if the fisheries start to become more corporate and smaller folks are forced out, it’s a big deal in the smaller fishing communities. Or, from an environmental conservation perspective, if we start to make fishermen fish within limits and their families and their communities depend upon fishing to survive then there’s a lot of tough choices.
There’s going to be winners and there’s going to be losers when you’ve got such a diverse region-wide community of fishing interests and sort of shrinking opportunities to fish. New England is often referred to as the poster child for bad fisheries management, and I think that in part that’s because of a lot of the history. New England is really the last region in the country to fish within limits. Historically, people just fished. You got a boat and you went fishing. And the most famous fishery in New England is our groundfish fishery, which is the cod, the haddock and the flounder fish that a lot of people around the country have heard about. Those fisheries collapsed in the mid-1990s.
As a result of that, at least targets … they were called limits, but they were really targets … were established, but sort of counter intuitively fishermen weren’t actually required to stop fishing when they hit the biologically recommended targets. And that’s just the way it has always been done in New England. So finally with this last round of management changes we have enforceable catch limits in place for the first time, but over the years we’ve seen the fishing resources become depleted. There’s been a relatively long fight—20 to 30 years—to try to regain control of the fishery and start to rebuild it and are sort of optimistic outlook these days is with the recent management changes we’re starting to see the bend in the corner. I’m not sure if we’ve turned the corner yet, but we’re getting there.
And frankly, that’s part of the reason I think why I made the transition to Earthjustice. There are a number of us who worked on these issues in New England for years. I worked with Steve when I was working with another organization on big cases in the late 1990s and early 2000s. But I think that we saw with some of those victories along the way that there’s an opportunity to make a final push to get across the goal line here in New England, get the limits in place, and get these historically valuable and culturally important fishing resources rebuilt.
Jessica: Is the hope that if we can affect some real change in New England that that will serve as a starting point for affecting fisheries policies across the rest of the nation?
Roger: Yeah, I think that that’s a big part of it. I guess one way to look at it is one might say if you can fix the problem in New England then everything else should seem like a piece of cake. And that’s not to diminish the challenges elsewhere around the country because I know that there are big challenges elsewhere. But it’s just been such a difficult row to hoe here in New England. And the fact that the politicians from New England, our senators and a number of our members of Congress, are very active when it comes to fisheries conservation issues in Washington, D.C., that inevitably one of power centers whenever there is a critical fisheries issue before Congress is New England. I think that if we can establish through some of the changes that we make both regionally in New England and the national policy table as well, if we can make changes that will work in New England, I think that it helps lead the nation in terms of the direction for fisheries policy.
Jessica: So you mentioned earlier that we’re working to restore groundfish fisheries and restore herring in New England fisheries as well. It seems like those two goals are simultaneous for Earthjustice. Is there a specific reason for that?
Roger: Well, I think that if you look at some of the boom and bust cycles scientifically in New England, you’ll see that there’s a definite relationship between herring, sea herring I should say in particular, which is the most important forage fish in New England, and in our commercially valuable species like cod, flounder, haddock. And for that matter some of our other important sport fish, like striped bass or blue fin tuna or what have you. I think that you can see these cycles sort of paralleling each other. When herring drops, you’ll often see a parallel drop in a lot of these other species as well.
Everything in New England in the ocean eats herring. I’m talking mostly about sea herring, but there’s also river herring. From a campaign perspective it makes a lot of sense to work on these species together also because if you’re going to restore fish populations to sustainable and healthy levels, you not only have to control the fishing induced mortality that’s out there but you also have to think about what else fish need to survive and come back to healthy levels. And that includes what they eat. That includes forage.
Jessica: So it sounds like herring is the building block for a lot of the other species in the ocean.
Roger: Right. Herring is regarded as a keystone species in the Gulf of Maine and really the whole Northwest Atlantic. And if you move a little further down the coast, other similar species would serve the same role. River herring, which I mentioned earlier, is all along the eastern seaboard from the Carolinas up into maritime Canada. That’s another critical piece of the forage base. We have a species called Atlantic mackerel, which is roughly the same size as herring, and then even further down the coast are these species that are intermixed with the larger populations of menhaden, which are further down the coast around the Chesapeake Bay area. So all of those species, they transfer energy from lower levels of the food chain up to higher levels of the food chain, and they’re just critical links in everything that goes on in the ocean.
Jessica: Well, and actually the Washington Post had an article recently about the Atlantic menhaden and how humans don’t eat them, but they referred to them as the “most important fish in the ocean” because they feed other important fish that we do eat like striped bass and tuna. Do you think people are coming around to this idea that it’s not enough to just save the more iconic or important creatures, to us at least, like striped bass and tuna because we eat them but also the whole lifecycle when saving one species?
Roger: I think that I would say yes. I think the fishermen, especially fishermen like our clients who recognize the importance of restoring fish stocks and taking a longer term view, I think that fishermen and people who are actively involved in the ocean environment, I think there’s a much greater understanding of the need to protect these less charismatic species that are just so critical to ocean health.
In terms of the public, I think that probably overall awareness is increasing, but it’s difficult because for one thing we could broaden the question and just ask, “What does the public really think of the ocean?” And a lot of folks think of the ocean as a nice place to go visit at the edge and they sort of see the surface of the ocean, but maybe don’t think about what’s going on under the ocean or the valuable role that it plays with the rest of the planet. But I think that more and more people are probably becoming aware of the need not only to protect the more charismatic species like tuna or whales or striped bass, but to protect what else is in the food chain.
I think if you give people a chance to think about it, they get it. People understand that it’s not that different from the terrestrial world. But it’s difficult to get that message out there. It’s hard to do public education around a small stinky oily fish. It’s a lot easier to do a campaign around right whales or grizzly bears or whatever it is.
We as lawyers can go to the incredibly boring regulatory meetings and make legal arguments and policy arguments. We can bring the scientists to make the policy arguments. We should win on the merits, but we don’t always. And I think that a lot of it at the regulatory, administrative, decision-making level where you have representatives or politicians making some of the decisions, there’s a public interest and political component to the decisions that are getting made as well. And in some cases there are very powerful, well-funded, industrial-type fishing interests that are there at the table that are taking a much shorter term view than we are. So those battles are difficult to win. But with a lot of the campaigns we’re working on now, there is an organized public relations component to it, and I think that helps to get the public to weigh in with politicians at the statehouses who send their representatives to these meetings. Or the National Marine Fisheries Service, who makes a lot of these decisions with the advice of other interested parties and to get people to weigh in directly and all the rest.
I think the public is becoming more aware of the issues, but there’s a lot that needs to be done. And I think that, you know I work in partnership with some of the campaign partners that we have, and I think we’re making progress.
Jessica: And some of those partners include local fishermen. Are there examples that we can point for successful sustainable business models? Is it possible to still keep fishing in New England successfully without harming the environment?
Roger: Yes, absolutely. I think that that’s one of the most exciting aspects of this job is that we have some of the greatest clients that you could ask for. We have commercial fishermen as clients who are either the current representatives or their parents or grandparents were part of the problem, frankly, and they recognize this now. They were just doing what they were supposed to do. They’re fishermen, they’re going out, they’re catching fish, they’re really good at it. And it just seemed like it was a limitless resource, but a lot of our clients now recognize that they were fishing too hard. They were fishing at times in the year in the wrong areas. They might have been taking spawning fish or destroying habitat, etc. And a lot of these fishermen get it. They understand that if they fish within limits at sustainable levels that not only will fish populations grow. It’s estimated by government scientists that if we fish in limits and rebuild the populations, we can still catch two to three times as many fish as we do now and have roughly the same, two to three times the same, revenues from those fisheries but have fish populations that are at healthy and abundant levels, three or four times what they are right now.
I think that what we’re learning now with some of the recent changes after the first year or two under some new management systems with the groundfish fishery where fishermen are fishing within limits is that fishermen are starting to catch more fish, they’re making more revenues, overfishing is not occurring, and fish populations are going up.
So are they catching fish at the same levels that they were fifty years ago? No, not yet. But I think that there is definitely a place where there will be sustainability that’s both environmental and economic that will support fishermen and fishing communities along the coast.
A sort of twist on this is that the herring fishery, that stock had collapsed for a number of years, and had started to come back. And when it started to come back in the 1990s, the government encouraged exploitation of this growing herring resource and so what we ended up having in New England was a group of industrial trawl fishermen move into the area. They brought the largest boats on the East Coast, by our standards anyway. Up to 165-foot trawlers that would tow very small mesh to try to catch herring and mackerel, etc. Sometimes they would even drag nets between these two very large vessels. They just started in the late 1990s and up until today they were largely unregulated, very poorly monitored, and they just started hammering our forage species.
We were working so hard to bring back around these fish stocks while these guys were out there hammering the forage base that we needed to bring those stocks back. And that’s one of the reasons why we’re involved in the herring fisheries and then even further down the coast in the mackerel fishery is because we need to get that type of fishing under control in New England.
Even the forage stocks like herring or mackerel or even river herring could be caught at sustainable levels. Some people do eat these fish. But they don’t need to be caught by giant ships sivving the ocean with nets with very tiny mesh that not only scoop up every herring in their path but also catch as bycatch juvenile groundfish or marine mammals or what have you as well. There are ways to fish for those species as well that are sustainable.
Jessica: I know that we have had several successes over the past few years in New England fisheries. Could you talk a little bit about what those recent victories have been and how we hope to build on those in the future?
Roger: Sure. I think in the groundfish fishery we’re involved in a couple of big pieces of litigation around one of the cases came down in 2001, one of the cases came down in 2004. They’re really related cases. But these cases for the first time established that fisheries managers in New England needed to develop and implement rebuilding plans for our groundfish fisheries. These came on the heels of amendments to the Magnuson Act of 1996 called the Sustainable Fisheries Act.
As a result of the victory, scientists at the National Marine Fisheries Service had to estimate what fishing levels could be allowed for each of the overfished groundfish populations. For example, in order to rebuild those stocks within 10 years, some, some because of the lifecycles of the fish and frankly because some of them were just so severely depleted, rebuilding timelines actually go out until 2024. Some of them are supposed to end in 2014. So essentially for all of these depleted groundfish populations, as a result of victories in 2001 and 2004 rebuilding plans were designed.
But that wasn’t the end of it because as I mentioned earlier even though these target fishing levels were being set, the fishery management plan did not actually require fishermen to stop fishing when they would hit those targets. It seems kind of silly, but that’s the way things were done in New England. So actually Earthjustice and other national and regional groups helped get the Magnuson Act amended again in 2007 in part because of failures in New England to actually put meaningful limits in place to rebuild their fish populations. And the 2007 amendments required what were called annual catch limits and accountability measures, which finally are requiring managers to stop fishermen from fishing for fish populations when they hit the biological limit.
So the first time in 2011, the legendary New England groundfish fishery actually had catch limits put in place that required fisheries to stop fishing when they hit the biologically recommended limits. And this was in part implemented through a new approach to management that was pioneered by one of our fishing organization clients, the Cape Cod Commercial Hook Fishermen’s Association in what is called sector management.
One of the ways in that the burden on fishermen was eased with these regulatory changes was fishermen were allowed to organize themselves into groups called sectors and within a sector fishermen can receive some regulatory relief. In other words, they might not have limits on what they can catch in a particular trip. Or one of the most popular ways that we tried to control fishing in New England was by limiting the number of days fishermen can actually be at the dock. If they’re in a sector, they get relief from those regulatory requirements in exchange for promising as a group to manage their allocation of fish within limits. So this is fairly innovative stuff. We tried it for the first time in the fishing year that just ended on May 1st of 2011 and so far it looks like it’s been an overwhelming success. Fishermen kept fishing throughout the year so from a business perspective they were able to keep their businesses going. And from a conservation perspective, nobody exceeded any limits.
There’s been a string of victories over the years that have sort of led to rebuilding plans and then finally this new approach to management in New England, which puts limits in place. We actually intervened for the first time in a fisheries suit in New England on the side of government to help defend this new approach to management. There are still some fishermen who don’t want to have to fish according to limits, etc. And we received a positive decision from the judge within the last month. I think we’re going to have to help defend that on appeal as well, but that’s surely a sign of how things have changed if after all these years of having to sue the National Marine Fisheries Service and the federal government for not doing what’s right, not establishing rebuilding plans, not making people fish within limits, we’re actually defending the system that’s in place and it seems to be working.
So I think that’s primarily focused on this iconic groundfish fishery in New England, but it’s the same thing that is going on in other fisheries in New England and around the country. Not everybody is doing such sector management. There are different ways that you can implement your catch limits, but the fact we now have them and people are meeting them and we’re getting a good conservation result in what appears to be a good economic rebuild for coastal fishermen, it seems like a good news story finally in New England.
On the herring front, our work in the herring and as I mentioned before it’s been broadened into a broader forage campaign that’s not just focused on herring but also it’s really focusing on the forage base—sea herring, river herring, mackerel, and we’re even starting to dabble in the menhaden fishery because that’s showing signs of stress. But we’re having some success there as well.
First of all, all of these forage species along the coast that I mentioned are either recognized as being in trouble or showing signs scientifically of being under severe stress, so I think the fact that we’ve entered this arena recently within the past two to three years is well-timed because these fish populations were headed quickly down the slope toward being in trouble again, which can affect any number of things that we’re trying to do. So on that front, we’ve been working within campaigns and representing clients in regulatory meetings trying to establish improved monitoring systems because even though some of these fisheries arguably they’ve been fishing within limits, the fact is that the monitoring and oversight and accountability in these fisheries has been virtually nil.
The second problem in the fishery is that the limits that were being set were not adequately accounting for their role in the ecosystem. In other words, most scientists would agree that a forage species probably has to be managed with a target of protecting a higher percentage of its potential population because so many other things eat those forage species. So in other words, there are just less of them as a percentage that can be caught. And unfortunately, managers have not really been setting ecosystem catch limits for years for a lot of these fisheries. So we need to move toward ecosystem-based catch limits in addition to improving monitoring and accountability.
And lastly, a lot of these fisheries just fish in the wrong areas. They’re using small mesh nets and they might fish on spawning grounds for whatever it might be, groundfish or river herring when they’re out at sea. Or they might catch marine mammals because they’re fishing in areas at a time of year when marine mammals are in the area so we really need to regulate where these fisheries are happening spatially.
So those are some of the goals that we’re trying to achieve and we’ve got three or four pieces of ongoing bigger picture litigation that are seeking to force managers to achieve those legally required objectives when they manage these species and along the way we’ve been hitting some victories. For example, we got a favorable ruling on a petition that Midcoast Fishermen’s Association in Maine, a commercial groundfishing group, brought with our help to try to exclude these industrial herring trawlers from groundfish spawning grounds. So now we’ve been working in the agency and are frankly back in court to try to move that case along to protect spawning grounds.
Most of our litigation right now is in the courtroom trying to get managers to establish federal fishery management plans for species like river herring and to set ecosystem-based catch limits and to improve monitoring systems for all of these species.
Jessica: It sounds like one of the bigger goals then is to have people look at ocean management in a way that considers the entire ecosystem, not just one specific species.
Roger: In the bigger picture, yeah, I think that that’s the direction that we need to head in. Traditionally we’ve managed species on a species by species basis. It doesn’t work that well in the ocean environment where species co-mingle and so many species are dependent upon key stocks of forage species for survival. There is some movement. It’s slow amongst regulators to start to piece these plans together so that, as you say, we can have ecosystem-based fisheries management from the get-go. For example, you set aside a certain amount of a forage species so that we know that there are enough of them there for other fish species and marine mammals and seabirds to eat. And also part of that too is to look at the habitat implications of fishing in the times of year where everybody is fishing. That’s the direction that I think we’re headed in and a lot of us feel like we need to head there if we’re going to keep our momentum going.
Jessica: Definitely, well it sounds like you have your plates full, for a while at least.
Roger: Yeah, I hope so. These things move slow. Sometimes it’s good. We have these giant cases that [Earthjustice Oceans Programs Director Steve] Roady and I do and some of the ones that we’ve done in the past, but sometimes it’s nice to pick off some of the smaller cases along the way. Those kinds of cases are very important on a local scale and it’s important to pick them off as we go along. From a campaign perspective, I think it’s important to have some victories along the way but also to address the real environmental issues associated with them.
Jessica: Well that’s all the questions that I have for today. Thank you so much for your time. And if our listeners would like to more about Earthjustice’s ocean litigation work, please visit earthjustice.org/oceans.
Learn how fishermen in Port Clyde, Maine, are modeling a standard that allows them to continue their fishing tradition, while also allowing the fish stocks to rebound: Port Clyde: A Way of Life Revived