Law Review Article on Litigation in the Northeast and West Coast Catch Share Fisheries

The latest issue of Environmental Law, published by Lewis and Clark Law School, features an article by Suzanne Iudicello of the Measuring the Effects of Catch Shares project team and Sherry Bosse Lueders. The article provides a detailed examination of litigation related to the West Coast and Northeast catch share fisheries.

A Survey of Litigation Over Catch Shares and Groundfish Management in the Pacific Coast and Northeast Multispecies Fisheries

Suzanne Iudicello & Sherry Bosse Lueders

Abstract: Government regulators and regulated businesses issue periodic alarms about the cost of environmental litigation in delayed decisions and burdensome response requirements. Litigation over commercial fishing in U.S. waters is no exception. The effects of litigation on the operations of the National Marine Fisheries Service have been the subject of internal investigations, National Academy studies, congressional hearings, and opinion columns. While lawsuits over endangered species, compliance with harvest limits, and consideration of environmental consequences have been part of the fishery management scene for decades, a more recent phenomenon involves challenges to federal catch share policy—the practice of limiting the pool of users who have access to take public resources.

This controversial fishery management tool has been around since the early 1990s. Much has been written in economic and political journals about the policy, variously termed “catch shares,” “individual transferable quotas,” “limited access privileges,” and “rationalization.” Whatever one labels this grant of public resources to individuals the process has been legislated, regulated, litigated, and implemented.

An examination of the record of wins and losses, sources of claims, changes in regulation, and legislative reform reveals a twenty-year history of fine-tuning the rules of catch share programs. Early litigation over fundamental questions, such as whether a catch share permit created a property right, was addressed by Congress in legislative reforms enacted in 1996 and 2006. Challenges arose equally from environmental advocates, the fishing industry, and other entities. Federal fishery managers have prevailed in more lawsuits and in the substance of their decisions more frequently as the law included greater specificity. Like catch share programs, litigation is a tool. Agency hand wringing to the contrary, it is part of the system—not an indication that the system is broken.