Requiem of an industry? (Part I in a series of articles regarding commercial fishing in the NW)
Astoria, Or – The local commercial fishermen, trawlers and gillnetters alike, have experienced a two-fold hit that many contend have driven the industry itself almost to extinction, much like many of the species they have harvested.
Brad Pettinger, of the Oregon Trawl Commission, at a recent meeting in Astoria, commented, “We are the most regulated industry in the United States! Most people don’t realize how many regulations fishermen have to abide by in order to fish.” More than a few fishermen would contend that the regulations are stringent solely to get rid of the industry.
Pettinger is concerned with the way the industry has been hampered in, with increased regulations, Kulongoski’s recent decision regarding marine reserves, Aquaculture operations, and ecologists dire predictions of future fish runs. “I think if you look at the coastal economies. If you took away fishing, what have you got?” Pettinger questioned.
Local gillnetters have also voiced concerns. In Columbia River salmon management the argument revolves around sport fishing’s attempt to ban gillnetting. In January 2008 a sport fishing blogger writes, “Gillnetting kills!” He then goes on to state that only sport fishing should be allowed from the I-5 bridge to the mouth of the Columbia River. Many sport fishermen agree that commercial fishermen have caused the decline in fish populations and support a moratorium on all commercial fishing.
Yet, commercial fishermen counter it is the sport fishery that goes over their allotment of fish. Sport fishermen between Tongue Point near Astoria and Bonneville Dam got an eight-day summer chinook season, which was calculated to be the amount of time it would take them to catch 1,200 salmon. However, while the catch average was as expected the fishing effort was greater than anticipated and the lower Columbia catch is estimated to be about 2,000 chinook. On the other hand, the fishing was even better than anticipated upstream of the Bonneville Dam and a catch of 500 was projected with the actual harvest being more like 700. It turns out the total sport catch will be about 2,700 rather than the anticipated 1,700.
The tribes vented first at June’s Columbia River Compact with the Yakama’s Terry Goudy-Rambler telling Oregon and Washington officials how she was disappointed in their poor control of the sport fishery. Sharing the tribal concern was Gary Soderstrom, president of the Astoria based gillnetter’s association, the Columbia River Fisheries Protective Union. In disgust Soderstrom suggested that sport fishermen were getting so efficient they should have the same on board monitoring that is imposed on the commercial fishermen. The Northwest Gillnetters Association’s Les Clark added that he felt that the sport fishery “seemed to be getting out of hand.”
While the argument over who or what is to blame for diminished fish runs rages, fishermen contend that over regulation of their industry and under regulation of a sport is unfair. “The over regulation of the fishing industry has done one thing,” states Joe Tarabochia, a fifth generation fisherman on the Columbia, “provided a steady income for a lot of bureaucrats.” He is not alone in his contention on wasted funds. Bruce Lovelin, the former president of an industry group that lobbied to keep the dams recently stated in a June interview that the government spends a bundle on a system involving eight different federal agencies. That doesn’t begin to account for all the local government workers, private consultants and university fish scientists who inspect, poke, and measure. It has come to be known as the “salmon recovery industry.” Asked what the system does with all that money, Lovelin says, “Well, it pays for biologists, Jeeps, computers, bureaucracy, administrative overhead.” (Leslie Stahl, CBS News, The Fuss over Fish).
In the same article Ed Chaney, a former state wildlife official, who heads Chinook Northwest, an environmental group, stated, “Billions have been wasted and that’s the real tragedy here.“Chaney adds. “Not spent to save the salmon” clarifying, “These are ‘save the dam’ facilities.”
Locally, fishermen habitually appear in the paper for various offenses. At a recent trial over an alleged application violation a Washington State game officer testified that he stops all vehicles that are towing boats that appear to have just been in the water to see if there are any violations. “That just isn’t true,” counters Tarabochia. “No sports fishermen would stand for it, to be pulled over on the suspicion that they had done something illegal merely because they were towing a wet boat.” Yet, in both Washington and Oregon all commercial fishermen must agree to be searched at any time whether fishing or not fishing. According to the Wahkiakum prosecutor’s office, Jerry Wetle deputy prosecuting attorney under Dan Bigelow, commercial fishermen give up their constitutional rights to unlawful search and seizure when they sign for their commercial fishing license.
However, a close look at Oregon’s and Washington’s commercial fishing license applications there isn’t any language indicating an abdication of certain rights. Where a commercial license for a bed and breakfast, for instance, specifically states, “Application is hereby made to operate the above establishment in compliance with the provisions of Oregon Revised Statutes, Chapter 624, and the Administrative Rules of the Department of Human Services pursuant thereto.” With further language stating that, “failure to meet the requirements of the Oregon Revised Statutes, Chapter 624, and the Department of Human Services requires denial or revocation of the license.” No such language exists in the commercial fishermen’s application.
A recent case that is now before a judge in Astoria concerns the commercial application itself. Under debate is the top of the form where it asks for an address of the applicant and the bottom of the form which contains the only legal wording on the one page application, “I hereby certify that I have resided in the state of Oregon for at least one year prior to application.” Trygve Klepp, The Oregon Fish and Wildlife agent who wrote the ticket, stated in court that the application meant that the fisherman applying had to put the location at which they were currently living, not merely a mailing address which the Tarabochias had done. Also, Klepp testified, that the line where they signed implied that they had lived in Oregon the year before the license was being applied for, not just any year prior to applying for the license.
“What I don’t understand,” commented Tarabochia, who had been charged with the violation, “is that the state didn’t make its case. The judge basically said I had to prove my innocence because the state had created enough doubt! The state’s job isn’t to create doubt, it’s to prove that the person had criminal intent beyond a shadow of a doubt.” Tarabochia said that a lawyer told him if you fish and a cop charges you a judge automatically assumes you are guilty, just pay the fine because you can’t fight it. “I refuse to do that,” Tarabochia said, “I didn’t give up my constitutional rights just because I am a fisherman.”
Fishermen contend they have a different set of rules to live by in the United States and the Tarabochia case would seem to justify that view point. Joe and Cinnon Tarabochia were divorced in 1991 and per the Washington State Parenting Act of 1987 had a parenting plan for their children. According to the Act the parents could give joint residence to their children, if they both agreed to it and it was in the best interests of the children. Cinnon Tarabochia said that her residence in Skomokawa, Washington, was to be the children’s residence for all things except fishing. Because of ongoing harassment by the Washington Fish and Wildlife agents she didn’t wish her home to be used as the primary residence while her three sons were being taught to be fishermen. Joe Tarabochia has lived in Astoria, Oregon, since 2003 which his driver’s license reflects. His sons’ fishing licenses’ reflect his residency in Oregon. The Fish and Wildlife departments in both states don’t agree to dual residency for children.
The Tarabochia family had first been charged with criminal charges alleging that because they had allegedly lied on the applications they were guilty of stealing resources from the state of Oregon. The criminal charges were later dropped but Trygve Klepp, for Oregon Fish and Wildlife, pursued the charges on the ticket. Because there were no longer criminal charges associated with the ticket the Tarabochias lost their court appointed attorneys and had to represent themselves in court. “These charges go back two years to 2006,” stated the mother, “and after Trooper Klepp wrote the ticket in July he waited to mail it until the end of November! I don’t understand how agents can just go through personal files looking for something to charge fishermen with. The Columbia River is a shared resource, the fishing enforcement agencies from both states cooperate and either one can write a ticket to a fisherman on the river. During the trial, even though no other witnesses got to sit up at the front tables, the Washington Fish and Wildlife agent sat right next to the Oregon Fish and Wildlife agent and helped him present the case against my sons! If they are helping each other and sharing their resources how can one state charge the residents of another state more money?”
It would appear that the question has been asked and answered in Toomer et al. v. Witsell et al, as well as Article IV section 2 of the United States constitution, both of which the Tarabochia boys are presenting in the summation that the judge asked them to write out and mail to her. In the first case a group of Georgia trawlers were charged with fishing off the coast of South Carolina and not paying non-resident fees. The trawlers contended that because the Atlantic Ocean was a shared waterway South Carolina didn’t have the right to charge them the higher non-resident fees. The US Supreme Court agreed with the trawlers and, even more importantly, the Court ruled, “It is also clear that compliance with any but the income tax statute would have required payment of large sums of money for which South Carolina provides no means of recovery, that defiance would have carried with it the risk of heavy fines and long imprisonment, and that withdrawal from further fishing until a test case had been taken through the South Carolina courts and perhaps to this Court would have resulted in a substantial loss of business for which no compensation could be obtained. Except as to the income tax statute, we conclude that appellants sufficiently showed the imminence of irreparable injury for which there was no plain, adequate and complete remedy at law.”
Article IV section 2 of the United States constitution states: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. In the supreme court case sited above it was ruled that: The primary purpose of this clause, like the clauses between which it is located-those relating to full faith and credit and to interstate extradition of fugitives from justice-was to help fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. For protection of such equality the citizen of State A was not to be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation. [334 U.S. 385 , 396] ‘Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists. Paul v. Virginia, 1868, 8 Wall. 168, 180. The importance of this ruling cannot be overlooked, as another law has recently been added to hamper the gillnetters’ efforts to sell their fish, as will be discussed in the next article.
Further clarification has been stated in Oregon’s own statutes 508.460 Oregon-Washington reciprocity on gillnet licenses stating: All gillnet licenses issued by the States of Oregon and Washington are valid as to the waters of the Columbia River in Oregon and Washington, as though issued by the department of fisheries of either state.And yet, fishermen in both states have been charged with violations stemming from crossing state lines. “Can you imagine if a logger was charged with crossing a state line to sell his logs how ridiculous that would sound? Logging companies would lobby congress to get such a law repealed, however, in the case of the fishing industry such laws do not even go before state legislature. The director of the state fish and wildlife in Washington and Oregon has the power to mandate fishing regulations, with no oversight,” stated Tarabochia. “I don’t understand how a judge can even take this seriously. Children being charged with illegal residency when one state expressly allows children to have dual residency [with each parent] and another state refusing to acknowledge that residency. It just doesn’t make sense.” Judge Matyas in Clatsop County Circuit court will be making a ruling on the case sometime at the end of the month.
The trawling fleet along the Pacific coast has finally decided to take matters into their own hands. Pacific Fishery Management Council (PFMC) has recently voted to implement a new Canadian-style quota system that could save the West Coast trawl fleet. In both Canada and Alaska quota systems have halted the frantic fishing that occurs when government restricts when, where and how much fleets can fish. This style of fishing has led to many deaths and fishing being called the most dangerous industry with a mortality rate, according to Reuters’ study from 2000-2006, nearly 60 times higher than the overall U.S. occupational fatality level. Fishermen off the coasts of Washington, Oregon and California have double the nationwide fishing fatality rate with an annual average of 238 dying per 100,000 fishermen. The average annual occupational fatality rate among all U.S. workers during the same period was four deaths per 100,000 workers according to Reuters.
William Hogarth, director of fisheries at the U.S. National Marine Fisheries Service, which oversees the PMFC, praised the vote to create a committee to draw up plans for a quota system for all groundfish in 2003. At its June 2008 meeting, the PMFC took a major step toward implementing trawl rationalization, adopting a preliminary preferred alternative that includes both individual fishing quotas (IFQs) and co-ops. A preliminary draft environmental impact statement (EIS) describing all the alternatives will be released in September. Hearings on rationalization will be held in late October, prior to PMCF’s final action in November to adopt a final preferred alternative.
In 2008, all ocean going fishing vessels were required to use depth-based management for commercial and recreational groundfish fishing in order to avoid harvest of overfished groundfish species. According to the PFMC website this means that fishing is allowed or disallowed in certain depth zones. Depth-based management can be difficult to enforce with limited at-sea patrolling capabilities. In order to address this problem, managers are implementing “vessel monitoring systems,” or VMS. While VMS creates additional costs and responsibilities for both managers and fishermen, it supposedly allows more fishing than would otherwise be possible using current enforcement tools.
While the trawlers have taken on the burden of self-regulation the gillnetters don’t feel they have the same options. Many of them contend that the bureaucracy involved would lose too much money if gillnetters tried the same thing. Some state that infighting amongst gillnetters is too deep to allow for an united effort to become self-regulated. Other organized gillnetting associations show that unification has enabled, to a certain degree, fishermen to get help from local government in approaching state legislation with their concerns of the fleet being destroyed, not because of a scarcity of resources but by the economic burdens associated with over regulation.
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