Digging Into Land Use Law

In this episode of Digging Into Land Use Law, Nossaman Environment & Land Use Group Partner Linda Larson and Associate Brian Ferrasci-O'Malley dive into the issues surrounding the effects of climate change on American fisheries and fishery management. The conversation covers how changing ocean conditions are impacting fish species that have been traditionally caught and enjoyed by Americans, what legal tools are available now for fishery managers to manage fisheries sustainably in the face of impacts from climate change and whether legal changes are needed to ensure sustainable U.S. fishing in the face of these daunting transformations.

Transcript: What Happens When the Fish Move? A Look at the Practical and Legal Impacts of Climate Change on American Fisheries

_{0:00:00.0 Brian: What happens when the fish move? Today, we dive into the issues surrounding the effects of climate change on American fisheries and fishery management. Changing ocean conditions are impacting fish species that have been traditionally caught and enjoyed by many Americans. We'll consider what legal tools are available now for fishery managers to manage fisheries sustainably in the face of impacts from climate change and whether additional legal changes are needed to ensure sustainable US fishing in the face of these daunting transformations.}

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_{0:00:37.2 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.}

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_{0:00:53.7 Brian: Thank you for joining us on this new episode of Digging Into Land Use Law. Today we'll be discussing the practical and legal impacts of climate change on American fisheries. My name is Brian Ferrasci-O'Malley, and I'm an associate in Nossaman's Environment & Land Use Group. My practice spans both transactional work and litigation, and I regularly advise clients across the US on energy development, site clean-up and federal wildlife law issues. Joining me today is Linda Larson, a partner in the Environment & Land Use Group here at Nossaman. Linda has led numerous complex litigation matters in trial and appellate courts, and she has particular expertise in fisheries, endangered species, sediments, water and hazardous waste issues. Linda was recognized as the 2020 Lawyer of the Year for natural resources law in Seattle by Best Lawyers in America. And has also been named an energy and environmental trailblazer by the National Law Journal. It's great to be here with you today, Linda.}

_{0:01:48.6 Linda: Nice to be with you, Brian.}

_{0:01:51.3 Brian: So, help set the stage. Why should we be worried about climate change impacting American fisheries?}

_{0:01:57.0 Linda: Well, I think as consumers, we should be very interested in climate change and impacts on American fisheries, because we like to eat fish. Americans consume about 16 pounds of seafood each year, that's about half of what people eat in Asia and Europe, but nonetheless, we like our fish, and we rely on American fishermen to supply us with wild-caught fish and shellfish. And we should also care because we're citizens of planet Earth and our oceans make up over 70% of the earth's surface, and they are really taking the hit on climate change. Climate change is drastically changing the oceans. They are the world's largest carbon sink. They're currently absorbing about a third of the carbon dioxide humans emit into the atmosphere, and that absorption of carbon is literally changing the ocean's chemistry, and it's causing it to acidify at an alarming rate.}

_{0:02:57.0 Linda: And this has not good impacts for the growth and reproduction of many marine species, including the fish that we like to eat. Climate change has drastically warmed the world's oceans, which have absorbed over 90% of the heat trapped by greenhouse gases, and this is transforming entire ecosystems like, coral reefs and seriously destabilizing fishing, endangering coastal communities all around the globe, and certainly all across our country. There's a lot at risk too from an economic standpoint. In 2017, Marine and Coastal fishery supported $244 billions in economic activity, and we're responsible for 1.7 million jobs in the United States. So, we have an economic impact and we have environmental impacts. The climate change and the associated problem of ocean acidification are increasing the vulnerability of fish stocks and protected species, and this has impacts from critters like seals and whales, to sea lions, to salmon, to shrimp.}

_{0:04:07.7 Linda: And these dual-stressors are impacting habitats in ways that may not be mitigatable. And nowhere is there a better illustration of both using and protecting marine ecosystems that are so dramatically impacted by climate change as the Arctic ecosystems off of Alaska. And from a regulatory standpoint, the oceans are dynamic systems, and so, it's always been difficult to strike the right balance between use and protection, and it's always been a complicated and controversial process, whether it's setting fishing levels or reducing bycatch, thinking about how best to recover endangered species, and considering whether we should issue more permits for oil and gas exploration? And so, when you have to try to incorporate the unpredictability of climate change into decision-making, those decisions are even more challenging than they've been before.}

_{0:05:07.5 Brian: Thanks, Linda, that's a really informative background to help lay the ground work for our discussion today. You mentioned both economic impacts and ecological impacts, can you give a couple examples of discrete ways that climate change is affecting fisheries in either an ecological or an economic way?}

_{0:05:29.5 Linda: Sure. You know, the major impacts are really stemming from the increase in ocean temperatures. We'll talk, I think a little bit later about that in more detail, but in general, ocean ecosystems are being disrupted by increasing temperatures and that results in changing the species composition in a particular ocean area, results in habitat loss, and there then the whole food web structure changes. We've seen this coming for decades, and now I think what we're seeing in the last few years is that we're probably seeing an acceleration in these trends. And second, from a socio-economic standpoint, Marine Fisheries and fishing communities are at risk of significant impacts from increasingly common extreme events, not just the gradual warming of the ocean, but also these episodic events, like very high temperatures in the ocean, in particular areas, or very low oxygen levels or very acidified conditions.}

_{0:06:37.7 Linda: And then we have some examples where we just really don't know what happened, but they were pretty drastic. And the example that comes to mind is the die out of sea stars or starfish all along the West Coast of America, from Oregon, through British Columbia and up into Alaska. And that had catastrophic effects in terms of how it changed the composition of the species that we saw in areas where Starfish used to be, because they were literally gone. And scientists still to my knowledge have not figured out why that happened, nor have they figured out why it's slowly coming back.}

_{0:07:21.4 Brian: You mentioned changes in species composition, the example of the sea stars, what are some other ways that these increasing global temperatures, these more extreme weather events might impact fisheries, what other implications could it have?}

_{0:07:39.9 Linda: Well, I think from a regulatory standpoint, it can really topple some of the things that have been put in place in the decades since the Magnuson Act was enacted about four years ago. The key thing that I see is that the location and timing of very long-established fisheries may shift, and this is critical from a regulatory standpoint, because commercial fisheries are very highly regulated in time and place, in terms of where they can take place. I think sometimes people have a romantic and outdated image of what fishermen do, you know, it's the lonely rugged guy in the rubber hat out on the oceans all by himself battling the elements. But really in the federal fisheries, people are very highly regulated, and particularly with respect to what's known as catch shares, which are licenses that are issued to fishermen that incorporate authorizations to fish only for certain fish and only in certain locations.}

_{0:08:46.7 Linda: And granted these are big locations, these can be hundreds of square miles, but we're also seeing changes in commercial species in terms of where they want to locate, and they could very well vacate some of the fishing grounds that have been very highly successful for many, many years. And so therefore, those people that have invested in these licenses, which are extremely valuable and can be bought and sold, could be left with an investment in equipment, in gear, in vessels, that needs to shift, and it's not clear how the regulatory regime is prepared to accommodate those people or not accommodate those people. All of the... You know, you can imagine that when a catch share program is established and there's an allocation of these valuable species between different fisherman, that's controversial, there's often litigation, and there's going to be a lot of discussion about fairness and equity, if all of that has to be literally moved geographically.}

_{0:09:53.7 Linda: The other thing that is being predicted is that catch levels may decline, and that also will have implications about what's fair and equitable and sustainable. And the declining catch levels will probably lead to volatility in the availability and prices of key commercial species. So that's going to have impacts for consumers, as well as fishermen. It also poses challenges for effective fisheries and protected species management. Commercial fishing is regulated under what's known as the Magnuson-Stevens Fishery Conservation and Management Act. It has as its purpose, both preventing overfishing and ensuring that there's a sustainable American fishery. It's implemented through Regional Fishery Management Councils, which develop fishery management plans and policies and propose legislation to the National Oceanic and Atmospheric Administration, which turns those plans into regulations and then implements and enforces them. And what we're seeing is that the councils are already grappling with how to manage their catch levels in these volatile economic conditions.}

_{0:11:07.8 Brian: There are a lot of good points in what you just had to say, Linda, and I want to unpack a couple of them if we can. First, you talked about the importance of how the location and timing of established fisheries may shift and why that's important given restrictions on when and where you can fish, but can you give me an example of a fishery or of a resource where that's happening?}

_{0:11:31.4 Linda: Sure, and I think it's a good one, because it also illustrates how these shifts and timing can affect consumers. So, Dungeness Crab is a perfect example of that. In recent years, we have seen the fishing season open much later in the year than it had on average in the past, and that has had significant impacts on the ability of commercial fishermen to get this product to consumers in time for the winter holidays, when a lot of people like to celebrate by eating crab.}

_{0:12:07.2 Brian: That's a great example, Linda, thank you. One of the other elements you talked about was declining catch levels, and how that might be a predicted implication of climate change. Can you talk through what that looks like? What will catch levels... Will those effects be felt across the United States, will they be felt differently in different areas, what can we expect as far as declining catch levels?}

_{0:12:34.5 Linda: Well, I'm afraid, the bad news is that all US large marine ecosystems, with the exception of the Alaska Arctic, are expected to see declining fishery catches. And the modeling that I looked at, tried to project changes within large marine ecosystems for the period 2041 through 2060 relative to what we were seeing in 1991 to 2010. And although these are just projections, they suggest that there's going to be significant shifts in the maximum catch potential essentially within two generations. The modeling does project significant increases in maximum fish potential off of the North Slope of Alaska and around Greenland, but all of the other large US marine ecosystems are expected to see declining fishery catches. And this is an issue of both quantity and type, obviously decreased maximum fish catch potential suggests there's going to be resource scarcity and more price volatility, but there's also the consideration of geographic shifts of fisheries as northern areas see more potential.}

_{0:13:48.8 Linda: And this may seem random, and I may be totally speculating, but one of the more interesting things that happened in the North Pacific in the summer of 2020, is that you as fishermen fishing for pollock and other ground fish within the US economic zone, which is 200 miles off of the coast of America, were harassed and threatened by Russian military ships. And it's totally unclear why they were doing that. We don't know if they were just flexing their muscle, if they were just testing the Trump administration, we don't know what they were up to, but it's not unreasonable to think that they were trying to stake their claim, or at least announce their presence in these Arctic areas off of the North Slope, where these fish, these very valuable fish which also have parallel Russian fisheries are expected to become more and more, that's where you're going to have to go to fish.}

_{0:15:09.7 Brian: Wow, I did not know about those incidents. That brings an entire different level of international intrigue to the topic. But stepping back, you've alluded to these changes that we're seeing in the North Pacific fishery, and I'm in particularly interested about the arrival of this shift north, this geographic shift north of species with, as you identified the very specific time and place restrictions on fisheries, especially in Alaska and the North Pacific. So could you give some examples of what shifts we have seen already? What shifts are potentially on the horizon for specific stocks?}

_{0:15:54.6 Linda: Sure, I'd be happy to talk about that more, and first, let me set the stage a little bit and put Alaskan fisheries in context. I think it's fair to say that you can't overstate the value of Alaskan fisheries to US fisheries. Over half of the fish caught in the United States are caught in Alaska, and it's an extremely valuable fishery. It has an average wholesale value of nearly $4.5 billion a year, but we've seen pretty dramatic impacts of climate change already in Alaska and on Alaska fisheries. As I said before, climate change is causing the ocean to become more acidic and that has led to outbreaks of harmful algal blooms and those have affected the distribution, abundance, and behaviors of commercially valuable species, and put this entire world-class fishery at risk. The other factor that fishermen are reporting is that the ice edge, so the edge of the Arctic ice that comes down into Alaska, is retreating farther and farther north, and that's also causing behavioral changes in species such as pollock, and that is making... Again, that has implications for the folks who have licenses that are limited in where they can fish for certain species.}

_{0:17:23.0 Linda: But another example I want to talk about is the Pacific cod fishery. The cod fishery is the second most valuable fishery in Alaska right behind pollock, which is the most valuable fishery in the world. And in 2018, the Pacific cod fishery experienced a 58% reduction in annual catch limits, and that was followed by a complete closure of the fishery in 2019. This is the first time the fishery had ever been closed due to concerns over low stock. And you might think, "Well, then they shouldn't have fished it so hard," but it wasn't actually a problem of harvest being too high, it turns out. The National Oceanic and Atmospheric Administration, NOAA, did a study to try to figure out what was going on, and they found that the lack of cod could be traced to egg hatching problems that were caused by a marine heatwave that lasted in the North Pacific from 2013 to 2016. So, the fish that you would have expected to have been of a catchable size three years later or five years later after they were laid in that time period, just simply didn't survive and therefore, were not there to be fished.}

_{0:18:47.7 Brian: Those are some excellent examples. Thanks, Linda. I'm curious if you can also talk about how extreme weather events are affecting fisheries? So not just the things that are happening because of the slow increase of temperatures over time, but what about the episodic instances that you referred to earlier, how are they affecting fisheries?}

_{0:19:11.1 Linda: Well, we do have, unfortunately, almost annual examples of how extreme weather events can affect fisheries, and I'm going to start in 2012 when there was a North Atlantic heatwave. It was concentrated in the Gulf of Maine, however, there were shorter periods with very warm temperatures that extended all the way from Cape Hatteras over to Iceland during the summer of 2012. American lobster and longfin squid and people who fish on them were impacted by this North Atlantic heatwave. And with respect to lobsters, they moved north to try to stay within their preferred temperature range, and they did that by starting their summer migration a month early, and therefore, they grew the market size faster than usual, and the result was a saturated market, and the price collapsed for Maine lobster men.}

_{0:20:08.6 Linda: And we've seen that northern migration trend continue, which has resulted in tensions between Canada and the US, where the US... Some of the US fishermen think that Canada is benefiting at their expense, and I think it's worth mentioning that we do have fisheries that we call manage with Canada, lobster on the East Coast and halibut on the West Coast, and there's also plenty of controversy over the management of halibut on the West Coast, but we'll leave that for another day.}

_{0:20:42.9 Brian: Those are a lot of very illustrative examples. I don't want to say they're good examples, because it's a little scary, all these changes, but I think they do help identify what potential implications are out there from the resource perspective. I want to ask, how have you seen the regulators respond to these changes over the past decade or more? What have they been doing to respond to the changes of climate change, and do they have the tools that they need?}

_{0:21:17.2 Linda: A strong argument could be made that you don't really need to drastically amend the Magnuson-Stevens Act to give fishery managers the tools that they need to consider the effects of climate change or to react to extreme events. And some fishery management councils are explicitly incorporating climate change considerations into ecosystem management right now, they're not waiting for legislation, they are required to do annual recalculations of what catch level should be, and they do that. The problem is that in many instances, the science and the data is really lagging the timeframe that they need to make the decision about the upcoming fishing years, and the data really isn't there to make everybody comfortable as they'd like it to be about predictions in the North Pacific for many of these valuable species, they do biannual or every three years, they literally go out and try to do surveys of available catches, and those have been shut down because of COVID this year.}

_{0:22:20.0 Linda: So then we're going to have that data gap, and then there are other fisheries where the money is just not there to do the surveys, and so, managers have to rely on really, really old data and hope that they're right. And that's a pretty concerning practice for everybody, as they're not doing it beacuse they want to, but they're doing it because they're required legally to use the best available science, and the best available science is really old. We need to think about as a society, how much do we want to invest in letting the science be better for fisheries. And Congress is not totally ignoring the problem, just this month, the chair of the House Committee on Natural Resources introduced this 324-page behemoth piece of proposed legislation called the Ocean-Based Climate Solutions Act of 2020 that has a very wide range of proposals and ideas about how to address climate change, some of which would end up amending the Magnuson-Stevens Act.}

_{0:23:32.0 Linda: There are continual efforts to amend the Magnuson-Stevens Act, but I, for one, I'm pretty cynical about them because there have been an annual amount and then nothing ever gets passed. So, more to come in terms of whether there'll be legislation that explicitly gives some direction on how to deal with climate change, and then in the meantime, I think managers, because they have a responsibility to just consider the state of the ecosystem as they set catch levels, they're just going out and doing it.}

_{0:24:08.7 Brian: You mentioned best available science, Linda, and I know that that has a particular meaning, I'm thinking of something you mentioned earlier in our conversation, you used a different term overfishing, and I know that has a colloquial meaning, but I know it also has a very specific meaning within the statutory context, and I'm curious if you can talk about how all of these variables, be it catch limits, what's being taken out of the resource, the impacts of climate change, how do those affect something like the term overfishing?}

_{0:24:43.8 Linda: Well, I think for me, it makes me wonder whether we need to update that term and maybe do away with it all together or replace it with something else, because the term overfishing sort of implies that human action is the thing that's driving... Or the primary driver of the state of a fishery stock, and maybe we need to switch that up a little bit and call it something like depleted stocks or threatened stocks, instead of using this, what's become to be a very charged term to describe stocks that are in trouble, because it may inaccurately imply that fishermen are to blame for a poor state of a particular species. And maybe as we're seeing in those examples that I saw, that I said about Pacific cod, maybe stressed stocks or stressed because of nothing that has anything to do with fishing activity, and it could be that really, it's the effects of climate change, it's pollution, it's changes in migration patterns, it's other naturally occurring reasons, not just fishing.}

_{0:26:02.5 Linda: Now obviously, fishing levels have to be tailored to make those stocks sustainable, but I think fishermen feel that sometimes they're unfairly blamed when a stock is in trouble. And the prime example of that is salmon in California, where I think that fishermen say labeling the salmon fishery as being over-fished is disparaging to them, when really, I think everybody could agree that drought impacts and diversions of water are the primary drivers of closing that salmon fishery.}

_{0:26:39.5 Brian: Taking a step back and looking at things from a 30,000-foot level, we've talked a lot today about various impacts, economic impacts, ecological impacts, what do all of these potential impacts to the fisheries mean going forward? What are the implications of this combination of slow burn factors, increased extreme weather events and changes to the regulatory structure?}

_{0:27:10.0 Linda: Well, I think the main implication is we're just facing a period of huge uncertainty. There's going to be uncertainty due to changes in fisheries abundance, that's going to have impacts on how and where and when you conduct the fisheries. It's going to have impacts on the value of the species and the prices for consumers, and it's going to have impacts on endangered species that rely on fish as their primary prey. It's a cascading effect, it's not just human predators, it's critter predators as well. I think as a society, we've decided that we want to have fisheries and we want those fisheries to be sustainable, but we need to invest in the science and see where that takes us. And we've have to be prepared to adjust the regulatory regime in a way that is both fair to the folks who have invested their livelihoods in fishing, fair to the communities that have grown up to support fishermen and also somehow guarantees that we're going to have fish in the ocean going forward, even if they move.}

_{0:28:30.1 Brian: Well, I think that's a great place to stop our conversation for today, thank you, Linda. I really enjoyed this discussion and look forward to continued ones. And a big thank you as well to our listeners for joining us for another episode of Digging Into Land Use Law. For additional information on this topic or other environmental land use issues, please feel free to visit our website at nossaman.com, and don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts, so you won't miss any of our upcoming episodes. Until next time.}

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_{0:29:08.3 S2: Digging Into Land Use Law is presented by Nossaman LLP, and cannot be copied or re-broadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.}

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