TCS Daily

The Scots Centuries-Old Way to Conserve Salmon Privately

By Iain A. Robertson - February 12, 2001 12:00 AM

"A salmon fishery pays a rent, and rent, though it cannot well be called the rent of land, makes a part of the price of a salmon as well as wages and profit."
- Adam Smith, The Wealth of Nations

Conservation should not be regarded as a purely modern preoccupation, for local initiatives directed at conserving indigenous species have existed for considerable periods of time. Less usual are long-standing conservation measures set up by legislation. Scotland has had legislation designed to conserve the Atlantic salmon (Salmo salar L.) since at least the 12th century, and this medieval legislation continues to influence Scottish attitudes toward salmon conservation to the present day.

Perhaps uniquely, from the first enactments the Scots law has devolved to private individuals and associations the responsibility for salmon conservation.

The first Scottish legislation ensured that rivers were accessible to all for, in a then largely roadless country, coastal and river navigation was of primary importance. Along with the right to travel by water, there was an accompanying right to catch "white fish," meaning all fish found in rivers. Sometime in the 12th century, however, a legal distinction was made between "white fish" and "fish of the salmon kind." Thereafter, the right to fish for salmon on particular stretches of rivers was made exclusive to designated persons.

As well as conservation through limitation of access, the Scots law provides two further conservation measures. The first specifies how salmon may be caught. The only legal form of netting is "net & coble," where a seine net of modest efficiency is "shot" in a semi-circle from the riverbank and the two ends are brought together to trap the fish. The second additional measure is to designate an annual "close-time" during which fishing for salmon is prohibited, essentially this coincides with the salmon's breeding season, from October through January. During the fishing season there is an additional closure called the "Saturday slap," originally the 24 hours from midnight Saturday to midnight Sunday, but subsequently lengthened in duration. This was to allow an escapement during the fishing season so that some breeding stock reached the spawning beds.

Evidence strongly suggests that during the 18th century conservation of salmon was not a matter of concern among those connected with the fisheries. Salmon were commonly seen as a plentiful resource. Thus, above the netted portion of the Tay River (which forms the basis of this study) and throughout the year, the local population helped themselves to salmon at will.

The general lack of concern must be put into context. By the 18th century, very few fishing proprietors worked their own fishings. Instead, the tack (lease) of the fishing was auctioned annually to one of a number of professional tacksmen (netsmen), seldom for a period of more than one fishing season. Clearly the price they were prepared to bid was crucial, and an important element in calculating this was the catches likely to be realized. Catch data were thus very valuable and no tacksman was willing to make known any catch information he might have, either to proprietors or other tacksmen. In such a situation, no one was in a position to know whether total catches were rising or falling.

During the second half of the 18th century, one tacksman, John Richardson of Pitfour, enjoyed particular success and established a virtual monopoly of the Tay salmon fisheries as well as having tacks on many other Scottish salmon rivers. His unique advantage was that he owned the boiling houses where the fish were kitted, and the salmon smacks that took the fish to southern markets. Thus, other local tacksman wishing to participate in the much more profitable market for kitted salmon had to sell to Richardson. The evidence strongly indicates that Richardson did not over-exploit the resource upon which the prosperity of his firm so obviously rested. Richardson's règime endured to the last years of the century, but the end of the 18th century brought radical change to the Tay and other Scottish fisheries.

Stake nets were introduced in 1797. Stake nets were "fixed engines" in that they were stationary barriers that diverted the salmon into enclosures, but the estuarial proprietors claimed that, while these were banned in rivers, the firth (or estuary) where "the tide ebbs and flows" was not a river. The consequent fall in river catches -- and river proprietors' rentals -- was dramatic and much resented. Almost immediately, river proprietors sought to have stake nets banned and went to court. The river interest was ultimately successful and stake nets were banned from the Firth of Tay and all other Scottish firths in 1812. Estuarial proprietors, though, were not going to surrender their new-found prosperity without a fight. Thus, at the time when conservation emerged as a matter of general concern, joint action became impossible because the dispute over stake nets was given priority by both sides, making it impossible for a consensus about conservation to emerge. These animosities lasted for the remainder of the 19th century.

Within a very short time at the beginning of the 19th century, the Tay salmon fisheries changed from a system of monopolistic but conservation-conscious control, to a highly competitive règime with few proprietors inclined to take conservation into account. The buoyant market for salmon up to the 1820s encouraged proprietors to maximize their short-term revenues by letting their fishings to the highest among an increasing number of bidders. The inevitable consequence was for tacksmen to seek to maximize their revenues by maximizing fishing effort.

There is evidence of some proprietors taking action to promote conservation. For example, by 1816 a non-statutory force of bailiffs had been organized and financed by The Association of the Proprietors of Salmon Fisheries in the River Tay. In the 1820s, the United Kingdom Parliament at Westminster became concerned about the alleged decline of salmon fisheries throughout the British Isles and set up a Committee of Inquiry. as a prelude to national legislation. With the prospect of national legislation, the proposed Tay Bill was dropped and proprietors concentrated instead on protecting their own particular interests.

The evidence presented to the Parliamentary Committee of Inquiry was highly biased and self-serving. River interests argued to continue the ban on stake nets in rivers and to have them banned from the coast. The estuarial and coastal interest argued the contrary. Both agreed that the salmon stock was under threat, though no one produced evidence statistical or otherwise to prove this, and saw the cause as being the practices of the opposing faction. The resulting Home Drummond Act, 1828 altered the law and lengthened the duration of the annual close time. But because of pressure from river interests, the additional 20 days were added at the end of close time in February, when there were few fish in the rivers. The start of close time was advanced into September, allowing netsmen to harvest the "autumn run" of fish. As a result, from 1828 onwards there was a growing body of opinion that too many of the autumn run of salmon were being caught.

By 1852, aggregate river rentals were almost half what they had been in 1827. River proprietors voluntarily agreed to end the fishing season on 26 August (instead of 14 September) and so allow the "autumn run" to ascend unscathed. As time passed, an increasing number of proprietors chose to ignore the agreement and fished on to the legally defined end of the season. The consequence was that the river proprietors were forced to promote a private bill and the Tay Fisheries Act, 1858 made statutory what had been agreed to voluntarily

By mid-century a further complication had arisen. Rod fishing began to become economically significant, for wealthy anglers were prepared to pay high rentals to fish for salmon on the Tay and other Scottish rivers. This inevitably brought a clash of interests between rod and net proprietors. Rod proprietors in the upper river complained that, because of the intensity of netting in the lower river, insufficient fish reached their beats and the intensity of netting should therefore be curtailed. The rod vs. net controversy was to endure for the next century and a half.

During the 1860s, the Westminster Parliament again became concerned with the alleged decline of the United Kingdom's salmon stock. As had already happened on the Tay, proprietors were encouraged to form District Salmon Fishery Boards that were granted statutory powers to control salmon-fishing matters within their districts. Formation of a District Board was, however, optional, not mandatory. In recognition of the emerging rod-fishing interest, angling for salmon was allowed to continue to 10 October, an extra 44 days. The Saturday slap was also increased from 24 to 36 hours to increase the escapement. Although rod fishers undoubtedly welcomed the recognition of their case, the extension to their season did not amount to the curtailment of netting that they had sought.

As the Scottish tradition dictated, the legislation was meant to facilitate self-regulation among those with a common interest. What happened on the Tay was typical of many other rivers: Because netting rentals were much higher than those for rod fishings, the chairman was always a net-fishing proprietor and the rod interest was always outvoted, so rivers continued to be run almost exclusively for the benefit of net proprietors.

The 19th century history of the Scottish salmon fisheries illustrates the dangers inherent in the "tragedy of the commons" when competitive extraction goes unchecked. All fishing proprietors protested the dangers of over-fishing and consistently predicted the imminent demise of the salmon stock. But their remedy was always to modify or prohibit the practices of others; none were prepared to promote or be involved in joint action.

It was at this time that the inherent resilience of the Scottish tradition allowed change to take place. To an observer of the fisheries, it was evident that fishing proprietors gave first priority to maximizing rental income. Thus, the most effective way to secure their co-operation for any purpose was to buy it.

P.D. Malloch owned a fishing tackle shop in Perth and acted as a letting agent for some of the rod beats on the Tay. Malloch had concluded that legislation to curtail netting was not likely in the foreseeable future. He thus conceived the idea of forming a company to control the netting. The Tay Salmon Fisheries Company (TSF Co.) was formed in 1898. The net proprietors' co-operation was secured by paying them up to double the former rentals and taking the tacks for 19 years.

Given the century of conflict just ended, to have fishing proprietors acting in harmony was no mean feat. By offering high rents, whether the fishings were worked or not, and taking obvious conservation initiatives, Malloch clearly won the sympathy of the majority of Tay proprietors.

The TSF Co. took immediate steps to curtail netting and increase escapement to the upper river. In addition to voluntarily stopping the netting season a week earlier, the company more than halved the number of net & coble stations operated from about 100 to 41. Malloch was quick to claim credit for his company's policies: "The result of all this has been a great increase of fish during every month of the season, and I have no hesitation in stating there are 20 fish in the river now [1905] for every 1 there was when we started." One of the benefits of the creation of the TSF Co. was that it kept catch records. Until the end of the First World War, the TSF Co. adhered to conservation policies that fostered rod interests. But when P.D. Malloch died in 1921, management of the company passed to his son William and, for whatever reason, from that time onwards the company ceased to be influenced by rod-fishing considerations and became a netting firm with the profitability of that activity its principal concern. This change rekindled the dormant hostility of upper-river proprietors.

The nature of the conflict between the two was as before, with upper proprietors claiming that netting was too intensive so that insufficient fish reached rod beats and spawning grounds. But there was no legal sanction that could force proprietors to reduce their fishing efforts. The TSF Co., a firm with very deep pockets, had bought co-operation for its purposes, but from the 1920s until the 1990s, rod proprietors did not adopt this strategy. They continued to bombard successive governments with proposals for legislation to curtail netting by law, but they could not or would not buy off the TSF Co. from its policy of maximizing net catches.

In terms of conservation, however, there was a significant difference between the règime followed by the TSF Co. and the 19th-century free-for-all. The TSF Co. did successfully employ policies designed to ensure the viability of the salmon stock upon which its fortunes rested. The company's catches were maintained for almost 80 years, and when they did fall off in the 1970s it was concurrent with the collapse of salmon catches throughout the North Atlantic area. Thus, within a catchment, monopoly control of the net fishery appears to have been favorable to conservation in both the 18th and 20th centuries.

Because netting interests dominated the majority of District Salmon Fishery Boards, the netsmen were also the dominant influence in the conduct of the Scottish salmon fisheries in general. In the late 1950s, a well-organized group of upper proprietors made clear their dissatisfaction with the status quo and demanded radical change. It was lobbying by this and similar groups from other Scottish rivers that was instrumental in the setting up of the Hunter Committee in 1962.

The Hunter report acknowledged the "need [for legislative] revision in the greatly changed circumstances" but believed that this should take place using the traditional Scottish approach. To the chagrin of netsmen, Hunter acknowledged the increasing economic importance of rod fishing. Surprisingly, in view of a century-and-a-half of pre-occupation with over-fishing, the Hunter report took the view that there had in the past been too great a concern with conservation which had led to an excessively large escapement, to the detriment of both net and rod catches. It argued that if the escapement could be reduced to a scientifically determined optimum, then there might be sufficient fish for rod fishers, for breeding, and for the netsmen. This would require an accurate determination of a river's salmon stock but, once this figure was known, daily catches could be monitored throughout the season and the escapement so adjusted that there would be sufficient salmon for all purposes. By implication, netsmen could not then complain if their share of returning fish were scientifically justified -- a neat way of forestalling criticism.

The Hunter report accepted the need for curtailment of net catches, but there was no significant legislation until 1986. The Salmon Act, 1986 made no specific mention of curtailment, but did enhance the Secretary of State for Scotland's powers to vary the Saturday slap. In the following year, the Secretary of State took advantage of this to extend the Saturday slap from 42 to 60 hours per week, a 43 percent increase. This was curtailment with a vengeance, for it significantly reduced the duration of the netsmen's working week and thus the viability of many fishings. As well as considering it of doubtful scientific validity, netsmen saw this as a deliberate reduction in the value of their property -- with no compensation offered.

The crucial question now is whether the rod interest will be prepared to take up the burden of funding conservation measures. As the history of the Tay and other Scottish salmon fisheries demonstrates, netting firms recognized that conservation and their own long-term interests coincided and they were prepared to fund bailiffs and other conservation measures, though it could be argued whether or not this was always to an adequate extent.

Of recent years angling beats have been bought and sold quite frequently, verging on a form of speculative activity. There is a danger that frequent buying and selling might lead speculators to postpone expenditures that would only come to fruition in the longer-term. Time-share is another development, which although it implies long-term commitment, makes matters such as the annual close time more difficult to vary.

Scotland has been fortunate in her medieval legislators' recognition of the need to conserve salmon. The technological changes from the 18th century onwards could not have been foreseen by the medieval legislators, but they were prescient in framing the legislation such that the two conservation principles -- annual and weekly close-times and restricting netting to a single method of known inefficiency -- could be adapted to deal with developments as they emerged

The weakness of the Scottish system is in recognizing continuing mutual interests during the year-by-year operation of the fisheries.

Like other assets, fishing rights may be enjoyed through personal consumption by the owner, i.e. fishing his own waters, or by renting the asset to others. In the case of the Scottish salmon fisheries, the great majority of proprietors have chosen the latter alternative, hence the fundamental role of rentals in deciding the purpose to which salmon fishings will be devoted. Moreover, fishing proprietors have always sought to maximize rental income, which can only happen consistently if the fisheries are in good order. Thus, the twin objectives of fish-stock optimization through good conservation practices and rental maximization may simultaneously be pursued through the same river-management policies. Unwillingness or inability to distinguish between short- and long-term policies led to the highly undesirable situation on the River Tay during the 19th century, which might be described as "the tragedy of the commons" made manifest.

Over the last three centuries, the long-term optimization of the salmon stock of the River Tay has been most successfully addressed when a single (monopolistic) commercial company controlled the fisheries. When there was no unified direction, rental maximization was on a "beggar my neighbor" footing and, at best, only lip service was paid to long-term conservation. In the future, conservation will best be served if proprietors can adopt and maintain the consistency of purpose displayed by the netting companies.

Nonetheless, the Scottish approach of (private) salmon conservation has lasted for some eight centuries and, unlike some other countries around the North Atlantic rim, there are still relatively significant quantities of Scottish wild salmon. It would seem reasonable to claim that the Scottish system works.

This article is a condensation of a study released in January by the Center for Private Conservation, a project of the Competitive Enterprise Institute. Created in 1995, the center researches, documents, and promotes the public benefits of private conservation and private stewardship. The center is supported by the William H. Donner Foundation.

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