January 8, 2001

    Ontario's Ministry of Natural Resources is proposing cuts to both recreational angling and commercial harvest in hopes of halting recent declines in walleye abundance in Lake Erie, says The Ontario Federation of Anglers & Hunters (OFAH).  

   According to information presented at a recent meeting in London, walleye stocks in Lake Erie have declined from a high of 100 million in the early ‘90’s to a current level that may be as low as 25 million fish. The decline has been especially evident in the central basin.

   The MNR proposal involves significantly reducing total harvest on the Ontario side of the lake for at least 3 years. In 1999, Ontario’s recreational anglers harvested 44,000 walleye from the central and western basins compared with 3.48 million fish taken by the Ontario commercial fishing industry. Dave Brown a fisheries biologist with OFAH, says that, if over-fishing has caused the decline in walleye numbers, then the only meaningful way to address the problem is to cut the commercial harvest. Walleye harvest by Ontario anglers represents less that 1% of the total harvest lake-wide.

   MNR has presented a number of options to manage the recreational harvest, including maintaining the status quo, reducing the limit on walleye from 6 to 4, implementing size limits, and closing the walleye fishery from January until May. These changes would be coupled with reductions in commercial harvest. "Any changes to reduce the recreational angler catch or seasons will not improve Lake Erie walleye management and conservation. In fact, they would be counterproductive because anglers are clearly the best partners in fisheries improvement that the MNR has" says Brown.

   Brown states "Recreational anglers have demonstrated that they give back more to the resource that they take. These anglers pay for fisheries enforcement and management through their license fees, and Ontario anglers contribute thousands of hours volunteering for walleye habitat restoration and improvement projects. The only way that anglers can make a meaningful contribution to Lake Erie walleye stocks is by continuing to work with MNR and providing the volunteer manpower for habitat restoration work that many OFAH clubs are already doing in and around Lake Erie" says Brown.

   Harvest percentages of Ontario commercials in relation to all other harvesting entities show the Ontario commercial fishing industry has reported harvesting 73% of the walleye in ‘97, 61.1% in ‘98 and 72.1% in ‘99. These numbers were taken from the report of the Walleye Task Group, March 2000, Lake Erie Committee, Great Lakes Fishery Commission

Probes sharper limits on EPA regulators in a possibly far-reaching case.
Your Government at Work
    Three years ago, the EPA enacted tough air pollution standards to reduce the amount of soot and smog in the atmosphere. Instead of ushering in an era of cleaner air, it triggered an avalanche of legal challenges by industry groups, complaining of costs of up to $150 billion a year. They question whether the US Constitution permits unelected bureaucrats to wield the kind of discretionary power that could, in theory, bring American industry to its knees.
    In one of the most important cases of the year, the US Supreme Court, last week began examining whether EPA chief Carol Browner usurped Congress's legislative powers when she used her broad discretion to set the new pollution limits under the federal Clean Air Act. The justices will also decide whether the EPA must consider economic and other factors in addition to health risks. The case sets the stage for what could become a major showdown over the power and primacy of federal regulatory agencies operating under broad and often ambiguous mandates from Congress.
    Critics of the power of federal regulators say that Congress has granted too much discretion to these executive branch agencies, and the agencies themselves have sometimes used that discretion to expand their power beyond limits authorized by the Constitution. "The lack of clear congressional standards limiting EPA, coupled with the agency's unfettered discretion to establish its own guideposts, ensures that there is no adequate check on EPA's decisionmaking," writes Laurence Tribe, a Harvard Law School professor who filed a friend-of-the-court brief on behalf of General Electric. "The balance of authority contemplated by the separation of powers does not exist."
    Lawyers for the EPA disagree. They say Congress imposed enough limitations on EPA discretion to pass constitutional muster. "An executive branch agency, acting pursuant to congressional direction, is entitled to assess the available evidence and make a reasoned judgment on the proper regulatory standard," writes Seth Waxman, US solicitor general, in his brief for the EPA.
    At issue in the case is how the EPA sets new air-pollution standards. Under the Clean Air Act, Congress instructed it to use the most up-to-date scientific information available to set limits that will best protect public health.
    Critics of the regulatory process say that if the agency doesn't take other factors, such as the cost of industry compliance, into account, the agency is left with unlimited discretion to set standards arbitrarily.
    In ruling against the EPA last year, a federal appeals court in Washington, D.C., found that the agency was "free to pick any point between zero and a hair below ... London's Killer Fog," a 1952 concentration of air pollution that contributed to 4,000 deaths over four days.
In discussing the limits of agency discretion, the appeals court cited the nondelegation doctrine, a principle of constitutional law unused since the 1930s. That law says Congress may not transfer its power to make laws to executive agencies.
    To avoid violating the doctrine, an agency must demonstrate that its decisions are made on a reasoned basis flowing from a congressional mandate and aren't simply arbitrary policy decisions made by agency personnel in lieu of congressional action.

    Part of the problem in the EPA case is Browner's willingness to exert agency authority, says Marci Hamilton, a visiting law professor at New York University who filed a friend-of-the-court brief. "This is the most overt expression by an [EPA] administrator saying, 'I've got the power. I make the law.' "