Marjorie Kelly’s Emergent Ownership Revolution is one of the key p2p books for 2012, focusing on the commons and what we call “peer property”.
Chapter 8 offers a very interesting case study on the Maine Lobster Commons, which we are reproducing here.
(order the book here)
“Something fascinating is at work in the Maine lobster industry. Going beyond old notions of traditional private property versus state intervention, a whole range of new economic architectures are in use. Alternative ownership designs play key roles. But they do so inside a larger frame of supportive infrastructure—a social ecosystem of generative design.8 The law operates in the background to help bring this economy into existence and hold it in place—yet its role is more innovative than top-down regulation. A panoply of supportive institutions and rules have evolved here mostly from the ground up—with “ground” meaning the bottom of the ocean, where lobster live and breed, and from which fi shermen scratch out a living.
I’d come to Maine to experience two things on this, my fi nal journey through the commons. First, I wanted to see a living example of the role of government in supporting a generative economy. Second, I wanted to see a whole family of generative ownership designs in situ. I wanted to categorize the various models and see it all operating as a whole system. I hoped to capture in this one place a sense of the social ecosystem of the generative economy.
* THE FISHERMAN SCIENTIST
I make a date to talk with Ted Ames, the fi sherman-scientist who won a 2005 MacArthur award (the so-called genius award), and I catch up with him in his offi ce at Bowdoin College in Brunswick, where he’s serving as visiting scholar for a year. He is a small man with youthful energy and the weathered face of someone who’s spent years on the water. In the mid- 1990s, he and his wife, Robin Alden—at the time, commissioner of the Maine Department of Marine Resources—helped put in place an innovative plan to protect the lobster industry, which Ted calls “a collaborative, ecosystem-based approach.”
There was a time, he tells me, when the lobster industry in Maine was in the same state of collapse as other fi sheries are today. “In the 1930s, the bottom fell out of lobstering,” he says. Canneries were buying and processing all sizes of lobsters, and there were no regulations restricting what could be caught. Small lobsters and broodstock were being taken, which was decimating the next generation of lobsters. Big boats had also begun auto-trawling in the Gulf of Maine—a massively extractive approach that destroyed habitat and damaged traps. Lobstering had become “too efficient, too industrial,” Ted explains, if you wanted to preserve habitat to grow another crop. A new law was passed in 1947, which in Ted’s words said, “Thou shalt not catch lobster in Maine with anything but a lobster trap.”
It was part of a series of ecological ground rules that evolved over time in Maine. The use of traps protects habitat. Other rules prohibit the taking of egged females, protect juveniles until they are appropriately large, and protect older lobsters known to be good broodstock. Lobstermen were instrumental in lobbying for all these rules, some of which evolved out of best practices already in use.
Yet ecological rules alone weren’t enough. Attention was also needed to social architectures, for the issue was not only what could be taken but how and by whom. Tending to such matters was the aim of the 1995 regulations. As the lobster industry recovered and became steadily productive, it was under increasing pressure from big boats and new technologies. To rein that in, in 1995 the legislature passed the zone management law, which does three things: it establishes individual trap limits; it controls entry into the industry; and, most innovative, it delegates a good deal of authority to local lobstermen, through the zone management system.
The law divides the coast into seven zones, each run by a council elected by licensed lobster fi shermen. The zones contain districts of lobster license holders who elect representatives to their zone council. These councils are technically advisory to state authorities, but their recommendations are generally adopted. They have certain areas of oversight. They can establish trap limits, differing from zone to zone, as long as they don’t exceed the state maximum. They help determine rules controlling entry into the industry, such as educational or apprenticeship requirements.
And they have a voice in other matters dear to a lobsterman’s heart, such as how many traps can be hung from a single buoy.
“It’s called democracy,” Ted says. “Isn’t that a novel concept?”
It is strikingly novel, in more ways than one. The law stipulates that lobster fi shing in inshore waters can be done only by owner-operated boats. Large corporate-owned boats are still needed in offshore waters, Ted says, because only big boats can operate safely there. But corporate boats can no longer fi sh for lobster in sensitive coastal waters, where breeding occurs. It’s a powerful use of ownership design as a tool to protect both commons and fi shing communities. According to James Acheson, the ownership rule is explicitly intended to prevent corporations like Shaftmaster Corporation—which operates out of New Hampshire, using big trawlers with hired captains and crews tending large numbers of traps—from coming to Maine and dominating and destroying lobster grounds.
Big boats like those “could clean out one area and move to another,” Ted says. “The business plan for that kind of operation is completely different from the small-scale operator, where boats are invariably owned by individuals or families.” The ownership rule is supplemented by another provision requiring an apprenticeship period. No one can obtain a lobster license without working two years on another lobster boat, where stewardship traditions and lobstering etiquette are learned.
These rules set the stage for the zone councils. Voting for these councils is one-person, one vote—very different from the corporate world, where voting rights are proportional to wealth holdings. This empowers fi shermen with small and medium-sized operations. As Acheson wrote, “These men had grown tired of watching ‘big fi shermen’ or ‘hogs’ take a disproportionate amount of the lobsters and cause huge trap tangles in the process.” In passing trap limits for their zones, the little guys rein in that behavior.
* FRAMING THE GENERATIVE ECONOMY
Both lobsters and fi shing families thrive in Maine, because the system works at many levels to restrain extractive behavior and encourage generative behavior. There are many kinds of rules here, but operating in the background, as a kind of wire frame supporting the system, are different kinds of ownership architectures.
As Acheson wrote:
- According to the law of Maine, all of the oceans, lakes, and rivers are public property. Ocean waters are held in trust by the state for all citizens. All ocean beaches to the high tide mark are owned by the state, and all citizens have legal access to them.
At this level, the overarching ownership concept is the ancient notion of trust: holding something in trust for the common good and for future generations. As trustee, the state of Maine calls on the property concept known as usufruct—the temporary right to use property belonging to someone else, as long as the property isn’t damaged—to create rules for right of access. In a sense, Maine holds the bundle of twigs of various property rights. And out of that bundle it separates usufruct rights, allocating certain of those rights to small owner-operators, leaving a different set of rights to corporate owners.
This law of the ocean is one supportive frame here. Another frame is provided by various enterprise ownership designs, such as cooperatives, CDCs, and CDFIs. Because of those sturdy background patterns, Coastal Enterprises can emerge as a CDC/CDFI, another part of the ecosystem of support for lobstermen.
CEI, in turn, devised a new contractual form of ownership design with the working waterfront covenant, which helps keep waterfront property in the hands of fi shing families. Fishing families themselves join together to form groups like the North End Lobster Cooperative, which helps them to thrive in a competitive environment. At various points, these ownership designs emerge from the background like knots on a fi shing net, shaping the energies of the system into stable patterns that tend to create generative outcomes.
What is explicitly restricted in this picture is extractive design. Large corporate boats can operate only in designated areas. Instead of permitting limitless liberty to absentee owners for the seeking of wealth—by hired hands indifferent to local custom—Maine set spinning a new governing pattern. It operates by generative principles, like the principle that the right of extraction has limits. That the right to make a living comes before the right to make a killing. That fairness for the many is more important than maximizing by the few. That sustaining the prosperity of larger living systems, both human and wild, is the root condition for the fl ourishing of all. And that these new economic principles are to be grounded in governance of, by, and for the community. Fairness, sustainability, community: the fundamental values of the generative economy are all at work. Through design.
As a fisherman and the son of a fisherman, Ted Ames doesn’t use such lofty terms. “It’s worked—that’s the neat part,” he says. “When basic rules are vetted by fi shermen themselves, you get a different dynamic.” Although there’s a powerful state role in this social ecosystem, much of what arose in Maine came from fi shermen, their practices, their lobbying efforts, their needs—and by extension, from the living needs of lobsters.
The notion of lobster zones has its genesis in a history of territoriality in the Maine lobster industry that goes back generations. A newcomer can’t just show up and start throwing traps in the water without incurring the wrath of locals. By time-honored tradition, lobstermen use small areas near their home harbor, working waters their families have worked for decades, which they defend vigorously.
As Acheson wrote, “At some point, usufructory rights strengthened into a sense of ownership, giving people justifi cation for defending the areas against the incursions of others.” The lobstering territories were ownership in embryo. This territorial system, he continued, is “the root institution governing the lobster industry, making possible the generation of other kinds of rule systems.” The territorial system, Acheson said, “helped produce a sense of stewardship and one of the most effective conservation programs in any fi shery in the industrialized world.”
* EMERGENCE AS A PATH TO LARGE-SCALE CHANGE
In the Maine lobster industry we see a process that systems thinking calls emergence. Instead of imposing abstract, large-scale concepts from the top down, the governing policies in this case emerged from the community. As Fritjof Capra emphasizes, effective change needs to be a living process.
In natural systems, he observes, transformational change happens when traditional patterns reach “critical points of instability,” creating a crisis that is resolved by the spontaneous emergence of new ordered patterns. It’s known as self-organization, or, simply, emergence. “Creativity—the generation of new forms—is a key property of all living systems,” Capra says. “Life constantly reaches out into novelty.”
Seeing the emergence of a new economy as a natural process is different from thinking of the competition of two ideologies vying for dominance, which is the paradigm of capitalism versus communism. Change as an emergent process doesn’t mean the absence of crisis or conflict. Both were present in Maine. And it doesn’t mean that some universally beloved outcome is reached. Solutions adopted in Maine generally favored one group at the expense of another. These things are natural in social systems. What emergence does mean, as an approach to policy, is starting small, proceeding organically, scaling up existing practice, and trusting that a creative solution is present in the very circumstances causing a crisis. Emergence also means that solutions may fi rst appear not in politics but in business. One role of policy is to formalize and scale up what has emerged.”